Romero-Raigoza v. Lynch , 661 F. App'x 555 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 15, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
HUGO ROMERO-RAIGOZA,
Petitioner,
No. 15-9575
v. (Petition for Review)
LORETTA E. LYNCH, United States
Attorney General,
Respondent.
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ORDER AND JUDGMENT*
_________________________________
Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
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Hugo Romero-Raigoza, a native and citizen of Mexico, petitions for review of the
decision of the Board of Immigration Appeals (BIA) dismissing his appeal from the
denial by the immigration judge (IJ) of his application for cancellation of removal. Our
jurisdiction is governed by 8 U.S.C. § 1252. We deny the petition.
The Department of Homeland Security charged Romero-Raigoza with being
removable under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States
*
After examining the briefs and appellate record, this panel has determined unanimously
that oral argument would not materially assist in the determination of this appeal. See
Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument. This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1.
without having been admitted or paroled. He admitted to the charges and conceded
removability before the IJ but sought relief through cancellation of removal. A
removable alien may be granted cancellation of removal and adjustment to lawful status
if the alien:
(A) has been physically present in the United States for a continuous period
of not less than 10 years immediately preceding the date of such
application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of [certain offenses]; and
(D) establishes that 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 or an alien lawfully admitted for permanent residence.
8 U.S.C. § 1229b(b)(1). It is undisputed that Romero-Raigoza met the first three
preconditions.
Romero-Raigoza bases his argument for “exceptional and extremely unusual
hardship,” § 1229b(b)(1)(D), on the impact that his removal would have on his son, a
United States citizen who has a learning disability and was receiving special education
services that would not be available in Mexico. Both he and his wife testified to the
hardship and he submitted supporting documentary evidence. At the conclusion of the
hearing the IJ stated that a decision could not be issued until the start of the next fiscal
year because of an annual cap on grants of relief. See 8 C.F.R. § 1240.21(c)(1) (once the
annual cap on grants of cancellation of removal has been reached, decisions to grant or
deny relief must be reserved until a later fiscal year when a new grant becomes
available). The IJ retired before then, so a new IJ reviewed the evidence that had already
been presented and denied relief for failure to prove the necessary hardship.
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Romero-Raigoza argues that his constitutional right to due process was violated
because the new IJ did not conduct a new evidentiary hearing. Although we ordinarily
lack jurisdiction to review a denial of cancellation of removal, see § 1252(a)(2)(B)(i) (“no
court shall have jurisdiction to review . . . any judgment regarding the granting of relief
under section . . . 1229b); Alzainati v. Holder, 568 F.3d 844, 847 (10th Cir. 2009).
(“Congress explicitly withdrew appellate review of decisions regarding . . . cancellation
of removal.”), this jurisdictional bar does not extend to constitutional claims or questions
of law, see § 1252(a)(2)(D) (“Nothing in subparagraph (B) . . . which limits or eliminates
judicial review, shall be construed as precluding review of constitutional claims or
questions of law.”); Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148−49 (10th Cir.
2005) “We review any valid constitutional claims or questions of law de novo.”
Alzainati, 568 F.3d at 851.
Removal proceedings do not require the same constitutional safeguards as criminal
prosecution. See Schroeck v. Gonzales, 429 F.3d 947, 951 (10th Cir. 2005). “[A]n alien
in removal proceedings is entitled only to the Fifth Amendment guarantee of fundamental
fairness, or in other words, only to procedural due process, which provides the
opportunity to be heard at a meaningful time and in a meaningful manner.” Alzainati,
568 F.3d at 851 (internal quotation marks omitted). To prevail on his claim Romero-
Raigoza must demonstrate both error and prejudice. See id.
Romero-Raigoza does not complain about lack of notice and he cannot deny that
he had the opportunity to be heard when he and his wife both testified at his initial merits
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hearing. His complaint is that the IJ who decided his application did not hear the
evidence but could only read the hearing transcript. He raises two specific claims.
First, he argues that the second IJ violated a federal regulation and a memorandum
governing the transfer of cases. See 8 C.F.R. § 1240.1(b) (requiring substituted IJs to
familiarize themselves with the record and expressly state that familiarity on record);
Interim Operating Policies and Procedures Memorandum No. 12-01: Procedures on
Handling Applications for Suspension/Cancellation in Non-Detained Cases Once
Numbers are no Longer Available in a Fiscal Year (Feb. 3, 2012) at 8, available at
http://www.justice.gov/eoir/oppm-log (last visited Aug. 18, 2016) (when a decision is
reserved without a draft decision having been prepared, the IJ should note on a worksheet
whether grant or denial is contemplated and “should schedule a hearing to render the oral
decision”). We seriously doubt that a violation of the cited regulation or memorandum
would rise to a constitutional error. But in any event Romero-Raigoza has not shown any
prejudice from a violation. Inadequate familiarity with the record would be troubling, but
even though the IJ did not state on the record that he had gained such familiarity, his
opinion demonstrates that he gave full consideration to the evidence. And there is
nothing to suggest that if the IJ had rendered his decision orally, it would have differed
from the written decision.
Second, Romero-Raigoza suggests that it was unfair to have the new IJ render a
decision without seeing the witnesses. But decision-makers often properly rely on
documentary evidence, including transcripts of testimony. Perhaps there could be a
problem if the decision-maker makes a finding regarding a witness’s credibility without
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observing the witness. See Gaye v. Lynch, 788 F.3d 519, 531, 534 (6th Cir. 2015)
(White, J., dissenting). But here the IJ credited the testimony favorable to Romero-
Raigoza. We see no due-process violation. See, e.g., Abdallahi v. Holder, 690 F.3d 467,
472−74 (6th Cir. 2012) (no due-process violation when IJ who decided case was not the
one who heard testimony);
We DENY the petition for review. We also DENY the respondent’s motion to
dismiss.
Entered for the Court
Harris L Hartz
Circuit Judge
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