Hadassa Chanero v. U.S. Attorney General , 429 F. App'x 831 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13829 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 7, 2011
________________________ JOHN LEY
CLERK
Agency No. A029-833-903
HADASSA CHANERO,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 7, 2011)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Hadassa Chanero, a native and citizen of Israel, seeks review of the order of
the Board of Immigration Appeals (BIA) summarily affirming the Immigration
Judge’s (IJ) order denying her application for cancellation of removal under 8
U.S.C. § 1229b(b)(1). In her petition for review, Chanero argues that the IJ did
not apply the correct legal standard for determining the level of hardship required
to grant a cancellation of removal and that her due process rights were violated as
a result of the IJ’s decisional process and the BIA’s summary affirmance. Because
we conclude that we lack jurisdiction over the due process claim, we dismiss this
part of the petition. We deny Chanero’s petition as it relates to the hardship claim.
Chanero last entered the United States in August 2001 as a nonimmigrant
and remained beyond the expiration date of her visa. She was served with a notice
to appear, charging her as removable under 8 U.S.C. § 1227(a)(1)(B). At her
removal hearing, Chanero requested cancellation of removal on the ground that
her removal would cause an exceptional and extremely unusual hardship to her
two U.S.-citizen sons. Chanero testified that she had been in the United States
since 1992 and was divorced. Her two sons, ages 17 and 12, did not want to leave
the United States, and although they could live with their father, they preferred to
remain with their mother. Chanero stated that she feared her oldest son would be
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forced to join the Israeli army if he went to Israel and that her younger son had
been experiencing trouble in school since the immigration proceedings began.
At a subsequent hearing, the IJ focused the hardship inquiry on the fact that
the boys would be forced into military service in Israel. The IJ noted the high
standard required to find an exceptional and extremely unusual hardship but
explained that she was bound by this standard even if she disagreed with it.
Accordingly, the IJ denied cancellation of removal, finding that although Chanero
satisfied the first three criteria – continuous physical presence, no statutory bar,
and good moral character – she failed to meet the high standard of exceptional and
extremely unusual hardship to a qualifying relative.
Chanero appealed to the BIA, which summarily affirmed. Chanero then
petitioned this court for review.
As an initial matter, we issued jurisdictional questions to determine whether
our jurisdiction was limited under 8 U.S.C. §§ 1252(a)(2)(B) and (a)(2)(D).
Having received the parties’ responses, we conclude that, although 8 U.S.C.
§ 1252(a)(2)(B) precludes our jurisdiction to review a hardship determination for a
cancellation of removal, to the extent Chanero asserts that the IJ applied an
incorrect legal standard for determining hardship, she raises a legal question that
we may review under 8 U.S.C. § 1252 (a)(2)(D). Frech v. U.S. Att’y Gen., 491
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F.3d 1277, 1281 (11th Cir. 2007). However, because Chanero’s constitutional due
process claim has no merit, we lack jurisdiction to review the petition with respect
to this claim. See Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1333
(11th Cir. 2003) (holding that a constitutional claim with no merit is not subject to
appellate review).
I. Cancellation of Removal Standard
We review the IJ’s legal determinations de novo. Hernandez v. U.S. Att’y
Gen., 513 F.3d 1336, 1339 (11th Cir. 2008).
The Attorney General has the discretion to cancel the removal of a
non-permanent resident alien who has (A) been continuously, physically present in
the United States for not less than ten years, (B) been a person of good moral
character, (C) not been convicted of certain listed offenses, and (D) established
exceptional and extremely unusual hardship to a qualifying relative. 8 U.S.C.
§ 1229b(b). The “exceptional and extremely unusual hardship” standard, which
was established by legislation enacted in 1996, is “higher than the ‘extreme
hardship’ standard under the previous suspension of deportation provision.”
Gonzalez-Oropeza, 321 F.3d at 1332, 1333. According to the BIA, “the hardship
to an alien’s relatives . . . must be substantially beyond the ordinary hardship that
would be expected when a close family member leaves this country.” In re
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Monreal-Aguinaga, 23 I.&N. Dec. 56, 62 (BIA 2001) (quotation omitted). This
standard requires that cancellation of removal should be “limited to ‘truly
exceptional’ situations,” but although the standard is high, it is “less than
‘unconscionable.’” Id. at 60, 62.
Having reviewed the record, we conclude that the IJ identified and applied
the correct legal standard in this case. The IJ repeatedly identified the exceptional
and extremely unusual hardship standard and made appropriate comparisons to the
previous standard. The IJ even clarified that she would have reached a different
conclusion under the lower standard. Therefore, we conclude the IJ applied the
proper standard and we deny the petition in part as to this issue.
II. Due Process
“In order to establish a due process violation, an alien must show that [s]he
was deprived of liberty without due process of law and that the asserted error
caused [her] substantial prejudice.” Gonzalez-Oropeza, 321 F.3d at 1333(citations omitted). Under 8 C.F.R. § 1003.1(e)(4), the BIA may summarily affirm
if the member determines (1) that the result was correct; (2) that any errors were
harmless or nonmaterial; and (3) that either (i) the issues on appeal were “squarely
controlled by existing . . . precedent and [did] not involve the application of
precedent to a novel factual situation,” or (ii) the issues were not so substantial”
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that a written opinion was warranted. Id. “Thus, under the regulations, no
entitlement to a full opinion by the BIA exists.” Gonzalez-Oropeza, 321 F.3d at
1333. We have determined that, when the BIA properly follows the regulatory
requirements, a summary affirmance does not violate due process. Mendoza v.
U.S. Att’y Gen., 327 F.3d 1283, 1288-89 (11th Cir. 2003).
The record here reveals that the BIA complied with the regulatory
requirements for the summary affirmance procedure. Thus, there was no denial of
due process. See Mendoza, 327 F.3d at 1288-89. Moreover, because Chanero has
failed to establish how she was prejudiced by the decisional process, her
constitutional claim has no merit and we lack jurisdiction to review it.
Accordingly, we dismiss the petition in part as to this issue.
PETITION DENIED IN PART; DISMISSED IN PART.
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