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« First, do no harm. Second, crush the competition? | Main | Circuit Split Alert: Chevron and the Reconsideration of Deportation Orders »
Wednesday
Oct282009

Denial of Discretionary Immigration Relief Insufficient for Violation of Due Process Claim

By Amber Blasingame

The Tenth Circuit in Arambula-Medina v. Holder dismissed a petition to review the denial of a cancellation of removal application for lack of jurisdiction.  No. 08-9589 (10th Cir. July 10, 2009).  Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), “no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under section . . . 1229b.”  Specifically, the Tenth Circuit does not have jurisdiction to review decisions concerning “the discretionary aspects of a decision concerning cancellation of removal.”

Under 8 U.S.C. § 1229b, an alien placed into removal proceedings may apply for cancellation of removal and adjust his status to permanent residence if he has been present in the United States for at least ten years continuously, can show evidence of good moral character, has not been convicted of certain offenses, and “establishes that removal would result in exceptional and extremely unusual hardship” to a qualifying relative.

Luis Enrique Arambula-Medina, a native of Mexico, entered the United States without inspection in 1991 with his mother and younger siblings.  His mother and younger siblings later able obtained permanent residence, but Mr. Arambula-Medina remained undocumented.  In October 2006, the Department of Homeland Security placed Mr. Arambula-Medina in removal proceedings.  Mr. Arambula-Medina filed an application for cancellation of removal claiming that his removal would result in exceptional and extremely unusual hardship to his lawful permanent resident mother.  The Immigration Judge disagreed and the Board of Immigration Appeals affirmed the Immigration Judge’s decision without an opinion under 8 C.F.R. § 1003.1(e)(4).

Mr. Arambula-Medina claimed that his mother required his support due to her heart condition.  However, the Immigration Judge found that not only was Mr. Arambula-Medina’s mother in fact not dependent upon her son, but that Mr. Arambula-Medina was actually dependent upon his mother.  The Immigration Judge determined that based on Mr. Arambula-Medina’s family ties in Mexico, his skills as a carpenter, and his ability to speak Spanish, his removal to Mexico would not in fact cause exceptional and extremely unusual hardship to his family remaining in the United States.  In a footnote, the Tenth Circuit also noted that the Immigration Judge had doubts regarding Mr. Arambula-Medina’s good moral character based on a juvenile drug charge and Mr. Arambula-Medina’s demeanor in court.

Under 8 U.S.C. § 1252(a)(2)(D), the federal appellate courts have jurisdiction to consider “constitutional claims” and “questions of law,” when reviewing Executive Office of Immigration Review (EOIR) decisions.  However, the federal appellate courts do not have jurisdiction to review discretionary decisions which include a review of exceptional and extremely unusual hardship and “underlying factual determinations.”

Mr. Arambula-Medina claimed that the Immigration Judge’s decision to deny his cancellation of removal violated his constitutional right to due process.  However, the Tenth Circuit, relying on Dave v. Ashcroft, explains that “in immigration proceedings, a petitioner has no liberty or property interest in obtaining purely discretionary relief,” and therefore may not claim a violation of due process rights.  363 F.3d 649 (7th Cir. 2004).  Therefore, since cancellation of removal is “discretionary relief,” Mr. Arambula-Medina may not claim a violation of his due process rights.

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