Galindo v. Holder, Jr. , 408 F. App'x 131 ( 2010 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT December 23, 2010
Elisabeth A. Shumaker
Clerk of Court
ANGEL GALINDO; SONIA GALINDO,
Petitioners,
v. No. 10-9505
(Board of Immigration Appeals)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER DISMISSING APPEAL
Before BRISCOE, Chief Judge, TACHA, and O'BRIEN, Circuit Judges.
Angel and Sonia Galindo petition for review of the denial of their applications for
cancellation of removal under 8 U.S.C. § 1229b(b). They claim the Board of
Immigration Appeals (BIA) violated their due process rights1 by not allowing them to
supplement the record to address whether their son, a United States citizen, would suffer
continued hardship past age eighteen if they were deported.2 The government asked this
1
Their brief listed equal protection as an issue but never discussed it. This issue
has not been presented adequately for us to consider it on appeal. See United States v.
Abdenbi, 361 F.3d 1282, 1289 (10th Cir. 2004).
2
They claim the BIA violated their rights by determining hardship at the time of
the appeal and not at the time of their initial application for relief. However, they did not
develop that argument in their brief.
Court to dismiss the petition under 8 U.S.C. § 1252(A)(2)(B)(i), which removes our
jurisdiction to review a judgment granting relief under § 1229b. We conclude we are
without jurisdiction to review the petition and dismiss.
BACKGROUND
Angel and Sonia, citizens of Mexico, entered the United States illegally in 1989
and 1990, respectively. Three of their four children were born in Mexico but the
youngest was born in California in 1992 and is thus a United States citizen. U.S.
CONST. amend. XIV, § 1. The Immigration and Naturalization Service (INS)3 charged
the Galindos with removability under 8 U.S.C. § 1182(a)(6)(A)(i), as aliens present
without being admitted or paroled. They conceded removability and initially requested
asylum but later withdrew their asylum applications and requested cancellation of
removal under 8 U.S.C. § 1229b(b). They argued their minor United States citizen son
would undergo extreme hardship if they were removed to Mexico. An immigration judge
initially denied relief to each of them. The BIA affirmed the decision in Sonia’s case and
dismissed Angel’s untimely appeal. The cases were reopened upon their request because
their original attorney was disbarred after the appeals and they claimed his deficient
performance had prejudiced their rights. The Galindos’ cases were eventually
consolidated.
Their new lawyer referred them to a psychologist to determine if their son would
3
The immigration enforcement functions of the former INS were transferred to the
Department of Homeland Security on March 1, 2003. Homeland Security Act of 2002,
Pub.L. 107-296, § 402, 116 Stat. 2135, 2178 (2002).
-2-
suffer hardship if they were deported. The psychologist diagnosed the child with a
learning disability, concluding he suffered from both a “[m]athematics disorder” and
“[d]isorder of written expression.” (R. Vol. I at 689.) His testimony, marked by
hyperbole, characterized the child’s learning disability in mathematics as “severe” and in
his opinion moving to a foreign country would be “significantly more traumatic” for a
child with learning disabilities than for a child without such disabilities. (Id. at 167,
169.) The learning disability (but not the hyperbole) was confirmed by a psychologist at
the University of Utah.
The child was enrolled in school at the time of the reopened hearing but was not
receiving special educational services. He was fourteen years old at that time; nine when
the case was first heard. Sonia testified she and Angel could not afford to send their son
to school in Mexico if they were deported. The immigration judge found the Galindos
had not met their burden of proof and had not shown their child would experience
“exceptional and extremely unusual hardship” if they were deported. See 8 U.S.C. §
1229b(b)(1)(D). He denied them cancellation of removal but granted them voluntary
departure. The Galindos appealed and the BIA dismissed the appeal.
DISCUSSION
The Immigration and Nationality Act provides that “no court shall have
jurisdiction to review . . . any judgment regarding the granting of relief under section . . .
1229b.” We have construed the term “judgment” in this subsection as referring to the
discretionary aspects of a decision concerning cancellation of removal. This includes any
underlying factual determinations as well as the determination of whether the petitioner’s
-3-
removal from the United States “would result in exceptional and extremely unusual
hardship” to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D). “We do, however,
have jurisdiction to review ‘constitutional claims’ and ‘questions of law.’” Arambula-
Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009), cert. denied, 130 S. Ct. 2092(2010) (citations omitted).
Aliens facing removal are “entitled only to procedural due process, which provides
the opportunity to be heard at a meaningful time and in a meaningful manner.” Schroeck
v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (quotation omitted). Insofar as the
Galindos are attacking the BIA’s discretionary denial of cancellation of withholding, we
are without jurisdiction to review that issue. 8 U.S.C. § 1252(A)(2)(B)(i). The Galindos
attempt to cast their arguments as constitutional claims by saying they were not given the
opportunity to be heard at a meaningful time and in a meaningful manner. They claim
the BIA presumed, without basis and without giving them a chance to rebut the
presumption, that “since [the child] would be turning eighteen in May of 2010, any
hardship he would suffer would cease to be relevant to [their] case.” (Petitioners’ Br. at
13.) Even a cursory review of the BIA decision shows this is not the case.
The BIA concluded because the child “has so little schooling remaining, the
difference in quality, availability, and affordability of special educational services in
Mexico as compared to the United States is a much diminished factor.” (R. Vol. I at 3
(emphasis added).) It noted the psychologist’s testimony (that moving would be
significantly more traumatic for the Galindos’ son than for a child without learning
disabilities) but determined the basis for those conclusions was not clear—there was no
-4-
evidence the child had special emotional sensitivities and the record focused on the
child’s educational needs. At the final hearing, the Galindos’ attorney specifically argued
the child was “at a delicate age at 16 years, two years left to attain a high school
education which at least gets his foot in the door into a future, future progress here in the
United States, and basically would abandon that, if going back to the family in Mexico.”
(R. Vol. I at 484.) When asked to specifically define the potential hardship, counsel
stated, “The hardship is that he is not going to get any education if he goes to Mexico.”
(Id. at 492.) The Galindos specifically chose to focus on the effects of a move on their
son’s access to secondary education. If there was hardship outside the educational
context, the burden was on the Galindos to present evidence of continuing hardship over
the course of their son’s life. This is a blatant attempt to recast a discretionary finding,
with which they disagree as a constitutional violation, in order to skirt our jurisdictional
limitation. Such disingenuousness “is clearly insufficient to give this Court jurisdiction
under § 1252(a)(2)(D).” Arambula-Medina, 572 F.3d at 828 (quotation omitted).
The Galindos also claim the BIA engaged in impermissible appellate fact-finding
in violation of 8 C.F.R. § 1003.1(d)(3)(iv).4 They argue the BIA presumed “that [their
4
8 C.F.R. § 1003.1(d)(3)(iv) provides:
Except for taking administrative notice of commonly known facts such as
current events or the contents of official documents, the Board will not
engage in factfinding in the course of deciding appeals. A party asserting
that the Board cannot properly resolve an appeal without further factfinding
must file a motion for remand. If further factfinding is needed in a
particular case, the Board may remand the proceeding to the immigration
judge or, as appropriate, to the Service.
-5-
son] would graduate from high school and be able to function normally as an adult in
spite of his diagnosed learning disability.” (Petitioners’ Br. at 14.) It is helpful to
examine the analysis in each decision to see why this argument is baseless. The
immigration judge’s decision reads, in relevant part:
Here, the Respondents maintain that their removal to Mexico would result
in exceptional and extremely unusual hardship to their son . . ., who is a
citizen of the United States. Having satisfied all other statutory elements to
be considered for cancellation, this decision hinges on whether [the child]
will face an exceptional and extreme hardship if the Respondents are
removed to Mexico, the burden is on the Respondents to show this
hardship. [The child] is fluent in both Spanish and English. He has been
diagnosed with a learning disability in the areas of math and verbal
communication, but found to be of above average intelligence. [He] is not
receiving, and likely will not receive any special attention here as a result of
the diagnosis and so the fact that special education programs in Mexico are
substandard is irrelevant. The Respondents failed to bring any convincing
evidence that [he] will not have access to any education in Mexico.
Although relocation may be difficult for any teenager, the Respondents
have failed to show that [he] would face any hardship that would amount to
anything beyond that normally associated with leaving the United States.
(R. Vol. I at 43-44.)
The BIA’s decision on the same point reads:
The respondents did not establish that their removal would result in
exceptional and extremely unusual hardship to their United States citizen
son. . . . Two psychological evaluations in the record conclude that [the
child] has learning disabilities with respect to math and writing. (Exhs. 7,
8). The evaluation by [one psychologist] also indicates that [the child] was
scheduled to be placed in special education classes (Exh. 8). The record
does not sufficiently show, however, that [the child]’s learning disabilities
would render the hardship resulting from his parents’ removal exceptional
and extremely unusual. On this record, [he] has only one semester left in
high school, so his need for special educational services is almost over. He
will be 18 years old in May 2010.
The record is unclear whether [the child] would stay in the United States or
accompany his parents to Mexico. Because he has so little schooling
-6-
remaining, the difference in quality, availability, and affordability of special
educational services in Mexico as compared to the United States is a much
diminished factor. If the respondents chose to have [him] remain in the
United States to finish high school, his separation from them would only
need to be a few months.
[The psychologist] testified that having to move to a new country or being
separated from one’s family “would be significantly more traumatic” for
[the child] because of his learning disabilities (Tr. at 71-72). But the basis
for these conclusions is unclear. The record focuses on [the child]’s
educational needs. There is no other indication that he has special
emotional sensitivities. The evidence is not sufficient to establish that [his]
learning disabilities would cause him to suffer exceptional and extremely
unusual emotional, psychological, or other hardship if his parents are
removed to Mexico. The record does not show that the hardship [he] would
face upon his parents’ removal would be substantially beyond that typically
caused by a parent’s removal.
(R. Vol. I at 3-4.)
The BIA did not engage in impermissible fact-finding. The immigration judge
made a finding of fact that established the child’s age. The BIA concluded the child’s
age diminished the significance of the difference in educational services between the
countries and affirmed the immigration judge’s conclusion there was no basis for finding
the hardship to the child would be “substantially beyond that typically caused by a
parent’s removal,” a determination we are without jurisdiction to review. See Arambula-
Medina, 572 F.3d at 828. Even if we agreed with the Galindos’ characterization of the
BIA’s statements as impermissible fact-finding, we would deny the petition for review.
The appropriate remedy when the BIA engages in fact-finding in violation of 8 C.F.R. §
1003.1(d)(3)(iv) is to remand the case for proper reconsideration. See Kabba v. Mukasey,
530 F.3d 1239, 1248-49 (10th Cir. 2008). However, here the BIA affirmed the
dispositive findings made by the immigration judge and his conclusions of law. Any
-7-
additional fact-finding was therefore extraneous and we will not remand to the agency for
what would amount to a cosmetic change in the decision. See Chak Yiu Lui v. Holder,
600 F.3d 980, 985 (8th Cir. 2010).
We grant the government’s motion and DISMISS the petition for review.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
-8-