Flores-Buenrostro v. Gonzales , 222 F. App'x 782 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 27, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
CLAUDIA FLO RES-
B UEN RO STR O,
No. 06-9556
Petitioner,
v. (Board of Immigration Appeals)
ALBERTO R. GONZA LES, (Agency No. A78 121 641)
Attorney General,
Respondent.
OR DER
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. *
Claudia Flores-Buenrostro, a native of M exico, lived and worked in the
United States w ithout documentation from 1991 through 2001. During six years
of that time, M s. Flores-B uenrostro used a false social security card to obtain
work. On June 26, 2001, the Department of Homeland Security charged her w ith
removability as an alien in the United States without having been admitted or
paroled pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is
therefore ordered submitted without oral argument.
(INA), 8 U.S.C. § 1182(a)(6)(A)(i). In December 2002, in a separate criminal
proceeding in Utah state court, she pleaded guilty to identity fraud, a
misdemeanor, in violation of § 76-6-1102 of the Utah Code. Later that month,
she submitted a petition to the Immigration Court seeking cancellation of removal
on the grounds that her then two-year-old daughter, who is a United States
citizen, would suffer “exceptional and extremely unusual hardship” if the removal
was not abated. The Immigration Judge (IJ) rejected her petition, and the B oard
of Immigration Appeals (BIA) affirmed. M s. Flores-B uenrostro asks this court to
vacate the BIA ’s ruling. W e dismiss the matter for lack of jurisdiction.
I. Discussion
Although not without limit, Congress has expansive power in the context of
immigration and naturalization. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001)
(noting that Congress’ immigration and naturalization powers are subject to
certain confines, but also stating “we nowhere deny the right of Congress to
remove aliens, to subject them to supervision with conditions when released from
detention, or to incarcerate them where appropriate for violations of those
conditions.”). Pursuant to this broad authority, Congress passed the INA, which
provides that “no court shall have jurisdiction to review . . . any judgment
regarding the granting of relief under . . . 1229b . . . .” 8 U.S.C. §
1252(a)(2)(B)(i). Section 1229b permits–but does not require–the Attorney
General to cancel the removal of an illegal alien where he or she “establishes that
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removal would result in exceptional and extremely unusual hardship to the alien’s
spouse, parent, or child, who is a citizen of the United States . . . .” 8 U.S.C. §
1229b(b)(1)(D). Thus, we have held that we lack jurisdiction where a petitioner
asks this court to review the BIA ’s determination that removal would not result in
an exceptional and extremely unusual hardship. See, e.g., Alvarez-Delmuro v.
Ashcroft, 360 F.3d 1254, 1256 (10th Cir. 2004).
Nevertheless, this court has indicated that it will review a BIA decision if it
raises a “substantial constitutional issue.” M orales Ventura v. Ashcroft, 348 F.3d
1259, 1262 (10th Cir. 2003). In an effort to persuade this court to exercise
jurisdiction, M s. Flores-Buenostro casts her appeal as a procedural due process
claim. After carefully examining the record and the IJ and BIA decisions, it is
clear that M s. Flores-Buenrostro’s procedural due process rights have not been
violated.
First, M s. Flores-Buenrostro received a hearing with counsel. In addition,
the record reflects that the IJ carefully considered and restricted M s. Flores-
Buenrostro’s argument that her removal would cause “exceptional and extremely
unusual hardship” to her then two-year-old daughter. Indeed, the IJ found that
“her child is healthy, of tender years, and is without any special needs or
circumstances.” Rec. at 64. The IJ also observed that M s. Flores-Buenrostro’s
child could either remain in the U nited States with her father and other siblings,
or return to M exico with her mother. The IJ concluded that although both
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decisions had unpleasant consequences, neither “even remotely approximate[d]
the high statutory standard of exceptional and extremely unusual.” Id. (internal
quotation marks omitted).
M s. Flores-Buenrosto is unable to point to any authority indicating that the
process the IJ employed to reach this conclusion is constitutionally deficient. Nor
is she able to point to any aspect of the BIA’s affirmance that runs afoul of her
due process rights. Furthermore, we note that the BIA reviewed the record as
well as the IJ’s decision, and we are satisfied that the BIA’s decision to adopt and
affirm the IJ’s decision provided the meaningful review to w hich M s. Flores-
Buenrostro was entitled. See Panrit v. INS, 19 F.3d 544, 546 (10th Cir. 1994)
(“W e therefore hold that where the [BIA] explicitly recites that it has reviewed
the record and the [IJ’s] decision and that it is content to rest its decision on the
[IJ’s] reasoning, adoption of the [IJ’s] decision does not present any difficulty in
terms of the [BIA ’s] articulation of its reasoning.”).
II. Conclusion
Accordingly, we DISM ISS the appeal.
Entered for the Court,
ELISABETH A. SHUM AKER, Clerk
By:
Deputy Clerk
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