Simon-Simon v. Atty Gen USA , 305 F. App'x 828 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-12-2009
Simon-Simon v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4159
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________
No. 07-4159
________
ISIDRO SIMON-SIMON,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________________________
On a Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A97-956-814)
Immigration Judge: Daniel Meisner
___________________________
Submitted under Third Circuit LAR 34.1(a)
November 12, 2008
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
(Opinion filed : January 12, 2009)
OPINION
__________
PER CURIAM:
Petitioner Isidro Simon-Simon, a native and citizen of Guatemala, entered the United
States without inspection on an unknown date. He was employed by Allied Hotel
Renovations, Inc., and working to renovate a Marriott Hotel in Panama City, Florida, when
he came to the attention of immigration authorities. Simon-Simon was served with a Notice
To Appear on November 16, 2004, alleging that he was removable under Immigration &
Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182 (a)(6)(A)(i), as an alien present
in the United States without being admitted or paroled. He appeared before the Immigration
Judge, conceded that he was removable, and applied for cancellation of removal under INA
§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1), for certain non-permanent residents.1 Simon-Simon
contended that his removal would present an exceptional and extremely unusual hardship to
his two United States citizen children, who would suffer economic and educational harm in
Guatemala.
At his removal hearing, Simon-Simon testified that he married Elia Rivera in
Guatemala in May 1986. She gave birth to their daughter, Mildred, and mother and child
remain in Guatemala. The couple divorced in November 2005. Since 2003, Simon-Simon
1
Cancellation of removal under INA § 240A(b)(1) is available to an alien who has
been physically present in the United States for at least 10 years, has been a person of
good moral character, has not been convicted of a specified criminal offense, and has
established that removal would result in exceptional and extremely unusual hardship to
the alien's spouse, parent, or child, who is a United States citizen or lawful permanent
resident. Id. at § 1229b(b)(1)(A)-(D).
2
has lived with Anna Maria Bonilla, a legal permanent resident, in New Jersey. He and
Bonilla have a United States-born child, David, who was 14 months old. Simon-Simon also
has a 7 year-old son, Isael, from a prior relationship with Rosalinda Garcia Perez. He was
granted sole custody of this United States citizen child by a New Jersey Family Court judge.
Simon-Simon testified that Isael’s mother is unfit. She has an alcohol problem and has left
Isael with “strange people” while she goes out drinking and dancing. On one occasion it
appeared that Isael had been beaten, and he did not want to return to his mother. Isael had
problems before coming to live with Simon-Simon, but he is now stable and happy. The
Custody Order prohibits Isael’s removal from the United States without the consent of both
parents. Normally, Simon-Simon earns $45,000 annually. Bonilla is unemployed and stays
home to care for the children. She also has a son from a prior relationship, giving the couple
three children to support and care for. Simon-Simon is a stable role model for all three boys,
and not just Isael. Simon-Simon is from a large family; all but one of his nine brothers and
sisters live in Guatemala, as do his parents.
On January 20, 2006, the IJ denied Simon-Simon’s application for cancellation of
removal on the ground that he failed to meet the physical presence requirement. In addition,
after referring to In re: Monreal- Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), In re:
Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002), and In re: Gonzalez-Recinas, 23 I. & N.
Dec. 467 (BIA 2002), the IJ found no evidence that Simon-Simon’s removal would result in
exceptional and extremely unusual hardship to his two U.S. citizen children, the stringent
3
standard he was required to meet.2 Both children were basically healthy. Both children had
the capacity to improve on their Spanish language abilities. As to the most serious allegation,
there was no evidence other than Simon-Simon’s testimony that Isael’s mother was unfit,
and, in fact, the Custody Order granted her liberal visitation rights. Furthermore, although
the custody agreement prohibited Isael’s removal from the United States without his mother’s
consent, the IJ found that there was no evidence that she would prevent him from returning
to Guatemala with Simon-Simon. The IJ also found that poor economic conditions in
Guatemala without more was insufficient to show exceptional and extremely unusual
hardship. Moreover, Simon-Simon had extensive family in Guatemala, and there was no
evidence presented that he would be unable to find work there, given his skills. The IJ
ordered him removed and granted him voluntary departure.
2
Prior to the Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), an alien could apply for suspension of deportation, where it was only
necessary to show “extreme hardship.” IIRIRA’s standard of “exceptional and extremely
unusual hardship” is less generous than the former standard. See Andazola-Rivas, 23 I. &
N. Dec. at 322; Gonzalez-Recinas, 23 I. & N. Dec. at 470. In Monreal-Aguinaga, 23 I. &
N. Dec. 56, the Board found that, to establish "exceptional and extremely unusual
hardship," an alien must show that the qualifying relative would suffer hardship
substantially beyond that which would normally result from deportation. The applicant
need not show that the hardship would be unconscionable. The Board will consider “the
ages, health, and circumstances of qualifying ... relatives.” Id. at 63. An applicant with
financially dependent elderly parents would have a strong case and so would an applicant
who had a qualifying child “with very serious health issues, or compelling special needs
in school.” Id. However, a “lower standard of living or adverse country conditions in the
country of return ... generally will be insufficient.” Id. The Board reaffirmed in
Gonzalez-Recinas, that the “exceptional and extremely unusual” requirement is "not so
restrictive that only a handful of applicants, such as those who have a qualifying relative
with a serious medical condition, will qualify for relief." Id., 23 I. & N. Dec. at 470.
4
Simon-Simon appealed to the Board of Immigration Appeals. On September 27,
2007, the Board dismissed the appeal on the basis of the hardship issue, essentially for the
reasons given by the IJ.3 The Board acknowledged that removal would adversely affect
Simon-Simon’s children, but the children were in good health, he had numerous family
members in Guatemala and work skills in the construction trade that would make him
employable. Therefore, he could not show exceptional and extremely unusual hardship under
Monreal-Aguinaga, Andazola-Rivas, and Gonzalez-Recinas. Simon-Simon has timely
petitioned for review.
We will dismiss the petition for review for lack of subject matter jurisdiction. We
have jurisdiction generally to review final orders of removal pursuant to INA § 242(a), 8
U.S.C. § 1252(a), but section 242(a)(2)(B)(i) of the jurisdictional statute, 8 U.S.C. §
1252(a)(2)(B)(i), divests us of jurisdiction over the Board’s discretionary decisions regarding
cancellation of removal under 8 U.S.C. § 1229b. See Mendez-Moranchel v. Ashcroft, 338
F.3d 176, 179 (3d Cir. 2003). To succeed on an application for cancellation of removal an
alien must establish, among other things, that removal would result in “exceptional and
extremely unusual hardship” to a qualifying relative. We held in Mendez-Moranchel that this
determination is a “quintessential discretionary judgment.” Id. The Board, in reliance upon
the IJ’s more comprehensive decision, affirmed the denial of Simon-Simon’s application for
3
The Board did not decide the physical presence issue and therefore we need not reach
it.
5
cancellation of removal based solely on a discretionary determination that he failed to
establish that his removal would result in "exceptional and extremely unusual hardship" to
his U.S. citizen children, see 8 U.S.C. § 1229b(b)(1)(D). This is an unreviewable decision.
Simon-Simon contends that the IJ did not weigh the evidence of exceptional and
extremely unusual hardship properly, nor did it apply Monreal-Aguinaga properly. See
Appellant’s Brief, at 16. Specifically, the IJ ignored his testimony concerning incidents of
neglect by Isael’s mother and his assertion that his removal would put Isael at risk. Simon-
Simon states: “The fact that Petitioner has been awarded sole residential custody of the child
is clear evidence that the child would suffer exceptional and extremely unusual hardship if
his father were removed from the United States.” Id. at 17. Relying on Gonzalez-Recinas,
23 I. & N. Dec. 467, Simon-Simon contends that his circumstances – a divorced parent who
is the sole source of financial and emotional support for a qualifying relative – must result
in a discretionary grant of cancellation of removal. In his case, the Board erred in affirming
the IJ without engaging in a de novo review of the facts.4 In addition, the IJ failed to give
appropriate consideration to dire economic conditions in Guatemala, as established by the
Department of State’s February 2008 Background Note for Guatemala, App. 122-130.
Simon-Simon points out that the per capita income in Guatemala is only $4,317.00. This is
4
The correct standard is that, although the IJ’s factual determinations in connection
with a cancellation of removal application are reviewed for clear error, 8 C.F.R. §
1003.1(d)(3)(i), whether those facts support a finding of “exceptional and extremely
unusual hardship” is a question of law which the Board reviews de novo, id. at §
1003.1(d)(3)(ii).
6
a far cry from what Simon-Simon was able to earn in the United States. See Appellant’s
Brief, at 18.
We do not agree that these contentions give us jurisdiction. The REAL ID Act
amended INA § 242(a) to provide for jurisdiction in the courts of appeals to review
constitutional claims and questions of law raised by aliens whose petitions for review would
otherwise be outside our jurisdiction, see INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D);
Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006) (factual and discretionary
determinations continue to fall outside our jurisdiction but 8 U.S.C. § 1252(a)(2)(D) would
extend to question whether Board applied wrong legal standard in making discretionary
determination); but Simon-Simon’s disagreement with the weighing of the potential harm to
Isael and the poor economic conditions in Guatemala is a traditional abuse of discretion
challenge, and does not implicate the constitution or raise a legal issue.
We have carefully reviewed the evidence of record, which includes Simon-Simon’s
testimony and New Jersey Superior Court Judge DeSoto’s August 31, 2004 order granting
liberal visitation to Rosalinda Perez Garcia “as agreed by the parties,” A.R. 157. The
allegation that Isael will suffer abuse if Simon-Simon is removed from the United States
obviously is a serious one, but the IJ weighed Simon-Simon’s testimony that Isael’s mother
is unfit against the Custody Order granting liberal visitation as agreed by the parties, and did
not misapply Board precedent in giving less weight to the testimony than to the Custody
Order. As the IJ noted, Simon-Simon could have produced the complaint or transcripts from
7
the family court proceedings, or other independent evidence that Garcia Perez was not a fit
parent, see Oral Decision of the Immigration Judge, at 7. Furthermore, there was no record
evidence other than Simon-Simon’s unsupported testimony that Isael’s mother would even
insist upon custody or refuse to consent to Isael’s accompanying his father to Guatemala.
Finally, the IJ did indeed consider the contention of reduced economic and educational
opportunities in Guatemala, id. at 9, to the extent of the evidence presented.5
In sum, nothing in the IJ’s decision indicates that he did not take into account the
required factors to determine that Simon-Simon failed to establish "exceptional and
extremely unusual hardship" to his United States citizen children. Gonzalez-Recinas
involved a single mother with six children whose only family members resided in the United
States. In contrast, Simon-Simon has three children he cares for, a partner who assists him
physically and emotionally in raising the children, numerous relatives in Guatemala, cf.
Andazola-Rivas, 23 I. & N. Dec. at 323 (noting fact that alien had no family to help her in
Mexico, which would likely make her adjustment to new life there more difficult), and
construction skills. We thus conclude that his quarrel is over the correctness of the factual
findings and justification for the discretionary choices of the IJ and the Board, and we do not
have jurisdiction to consider these arguments. 8 U.S.C. § 1252(a)(2)(B)(i);
Mendez-Moranchel, 338 F.3d at 179.
5
The 2008 Background Note, which appears in the Appendix on appeal, was not made
a part of the Administrative Record.
8
For the foregoing reasons, we will dismiss the petition for review for lack of subject
matter jurisdiction.
9