Jimenez v. Holder

FILED
NOT FOR PUBLICATION MAY 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TOMASA JIMENEZ; MAURICIA No. 05-75848
VALERIO-JIMENEZ; MAYRA
VALERIO, Agency Nos. A079-259-200
A078-669-998
Petitioners, A072-403-831
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
TOMASA JIMENEZ; MAURICIA No. 06-70495
VALERIO-JIMENEZ; MAYRA
VALERIO, Agency Nos. A079-259-200
A078-669-998
Petitioners, A072-403-831
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted April 16, 2010
San Francisco, California
Before: TASHIMA and THOMAS, Circuit Judges, and STAFFORD,
District Judge.**
Tomasa Jimenez, and her adult daughters Mauricia Valerio-Jimenez and
Mayra Valerio, all natives and citizens of Mexico, petition for review of the Board
of Immigration Appeals’ (“BIA”) denial of their appeal from an Immigration
Judge’s (“IJ”) denial of their application for cancellation of removal, and denial of
their motion for reconsideration.
Background
The IJ found that petitioners had satisfied three of the four requirements for
eligibility for cancellation of removal: continuous physical presence in the United
States, good moral character, and no criminal convictions. 8 U.S.C. § 1229b(b)(1).
The IJ, however, denied petitioners’ application because he found that they had not
established that their removal would cause “exceptional and extremely unusual
hardship” to their qualifying relatives. 8 U.S.C. § 1229b(b)(1)(D). The BIA
affirmed the IJ’s decision without opinion.
**
The Honorable William S. Stafford, Senior United States District
Judge for the Northern District of Florida, sitting by designation.
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Jurisdiction
The Illegal Immigration Reform and Immigrant Responsibility Act removed
our jurisdiction to review “denials of discretionary relief,” including “any
judgment regarding the granting of relief under . . . [8 U.S.C. §] 1229b,” which
governs the cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). But the REAL
ID Act of 2005 amended the law to restore our jurisdiction over “constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D).
We retain jurisdiction to review the agency’s discretionary denial of
cancellation of removal to the extent that petitioners’ challenge presents a
colorable constitutional or legal claim. See Mendez-Castro v. Mukasey, 552 F.3d
975, 978 (9th Cir. 2009). If the agency “applied the correct legal standard” in
evaluating petitioners’ case, “we may not proceed further to examine its
application of the facts of this case to” that standard. Id. at 980. If, however, the
agency “failed to follow BIA precedent and misconstrued the statute when
determining whether Petitioners had demonstrated ‘exceptional and extremely
unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D), . . . we have jurisdiction to
review” petitioners’ challenge to the agency’s decision. See Figueroa v. Mukasey,
543 F.3d 487, 496 (9th Cir. 2008).
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We hold that petitioners’ contention that the BIA failed to apply its own
binding precedent, Matter of Recinas, 23 I. & N. Dec. 467 (BIA 2002), in
evaluating Tomasa Jimenez’s application for cancellation of removal fails to raise
a colorable constitutional or legal claim; therefore, we lack jurisdiction over it.
Petitioners’ claim is essentially one “that the IJ’s decision in this case is factually
inconsistent with” the hardship determination it made in Recinas. Mendez-Castro,
552 F.3d at 980. We may not conduct a review that “would require us [to] step
into the IJ’s shoes and reweigh the facts in light of the agency’s subjective
treatment of purportedly similar cases.” Id. The BIA cited and repeatedly referred
to Recinas, the correct legal standard. Our inquiry ends there.
Nor do we have jurisdiction to review Jimenez’s claim that the BIA
committed legal or constitutional error by failing to consider the effect of her
removal on Luis, her qualifying relative son, because of his incarceration. The IJ
applied the correct legal standard to determine which of Jiminez’s relatives were
qualifying relatives under the statute and held that she had three qualifying
relatives, “Luis, Jose, and Edgar.” Therefore, Jiminez’s claim of legal error is not
colorable. Nor is her claim colorable when characterized as a due process
violation. The record indicates that the BIA did review the evidence of potential
hardship to Luis, but found that there was none.
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We therefore lack jurisdiction to review the foregoing claims.
On the other hand, petitioners have identified two colorable legal errors that
the BIA made when it applied the incorrect legal standards to its analysis of
whether Valerio-Jiminez and Valerio’s removal would cause their respective
qualifying sons exceptional and extremely unusual hardship. We therefore have
jurisdiction over these claims, which we discuss further below.
Merits
First, the BIA erred in holding that Valerio-Jiminez and Valerio failed to
establish sufficient hardship because they had not proven that their sons suffered
from “serious medical conditions.” The BIA’s precedent does not require a finding
of a serious medical condition in order to grant relief. See Recinas, 23 I. & N. Dec.
at 470. Rather, BIA precedent requires engagement in what the BIA has called “a
‘cumulative’ analysis,” which “requires the assessment of hardship factors in their
totality,” rather than reliance on specific formal categories such as the IJ did in this
case. See id. at 472. The BIA thus applied an erroneous and heightened legal
standard by putting the burden on petitioners to prove that their sons had serious
medical conditions in order to consider them eligible for relief.
Second, the BIA erred in requiring Valerio-Jiminez and Valerio to show that
their sons’ medical conditions currently create a hardship in the United States.
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This hardship analysis considered only the severity of petitioners’ sons’ health
problems while currently being treated in the United States. This was legal error
because our precedent requires the BIA “to consider whether the citizen-children
would suffer an exceptional and extremely unusual hardship in the future should
their parents be removed.” Figueroa, 543 F.3d at 497 (quoting 8 U.S.C. §
1229b(B)(1)(D)) (emphasis in original). The BIA’s precedent requires that
“consideration should be given to the age, health, and circumstances of the
qualifying members, including how a lower standard of living or adverse country
conditions in the country of return might affect those relatives.” Recinas, 23 I. &
N. Dec. at 468. The law does not allow the BIA blithely to assume that because
Valerio-Jiminez’s son’s condition can be treated with hospitalization and
intravenous antibiotics in the United States, it will not “create an exceptional
hardship in the country of return,” where such treatment might not be available.
Figueroa, 543 F.3d at 497.
Conclusion
For the foregoing reasons, we dismiss the petition for review with respect to
Tomasa Jimenez’s claims for lack of jurisdiction. We grant the petition for review
with respect to Mauricia Valerio-Jimenez and Mayra Valerio’s claims, and remand
to the BIA so that it may apply the correct legal standards governing hardship
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analysis and properly consider the effect of said petitioners’ removal on their
respective children’s medical conditions.
DISMISSED in part, GRANTED in part, and REMANDED.
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