Alfredo Montanez-Gonzalez v. Eric Holder, Jr. , 780 F.3d 720 ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0042p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ALFREDO MONTANEZ-GONZALEZ, ┐
Petitioner, │
│
│ No. 13-4276
v. │
>
│
ERIC H. HOLDER, JR., │
Respondent. │
┘
On Petition for Review of a Decision of
the Board of Immigration Appeals.
No. A089 080 741.
Decided and Filed: March 12, 2015
BEFORE: GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge*
_________________
COUNSEL
ON BRIEF: Andrea J. Ferrara, Roseville, Michigan, for Petitioner. Andrew N. O’Malley,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
JANE B. STRANCH, Circuit Judge. Alfredo Montanez-Gonzalez, a native and citizen of
Mexico, seeks review of a decision of the Board of Immigration Appeals (BIA), affirming the
decision of the Immigration Judge (IJ) denying his application for cancellation of removal. The
IJ denied Montanez-Gonzalez’s application on the grounds that he had established neither his
*
The Honorable Pamela L. Reeves, United States District Judge for the Eastern District of Tennessee,
sitting by designation.
1
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continuous presence in this country nor the degree of hardship to his citizen relatives required for
cancellation of removal, and the BIA affirmed on the hardship ground. Montanez-Gonzalez
contends that the BIA failed to follow its own precedent and failed to correct constitutional
errors in the IJ’s procedure, along with other arguments over which we lack jurisdiction.
Because the BIA did, in fact, follow its own precedent and Montanez-Gonzalez cannot show
constitutional injury, we deny the petition for review on those issues and dismiss the petition
with regard to those issues over which we lack jurisdiction.
I. BACKGROUND
Montanez-Gonzalez was born in a small town in Zacatecas, Mexico. He entered
the United States without inspection in 1997 and has primarily lived here since. He
returned to Mexico in 2001 to marry his wife and brought her back to the United States.
Montanez-Gonzalez and his wife lack lawful status, but they have three daughters, ages five,
nine, and thirteen, who were born in this country and therefore have United States citizenship.
The family lived in Michigan near his wife’s father, stepmother, brother, and the brother’s
family. The Montanez-Gonzalez children are close with their extended family, who live nearby,
and they have never been to Mexico. The eldest daughter excels in school and testified that she
wants to be a doctor when she grows up. Montanez-Gonzalez’s parents remain in Zacatecas, as
do members of his wife’s extended family.
Montanez-Gonzalez was placed in removal proceedings in early 2009 and applied for
cancellation of removal, pursuant to INA § 240A(b), 8 U.S.C. § 1229b(b). At a hearing, he
presented evidence about rampant gang violence and limited educational opportunities in
Zacatecas, as well as concerns about his ability to provide for his children should he be removed.
He also sought the introduction of a late exhibit which purported to show that his middle
daughter was diagnosed with lead poisoning causing injury to her legs. The exhibit stated that
the daughter “has been requested by Dr. Perla to see an orthopedic specialist. She has had an
elevated lead level and an appointment has been made.”
The IJ denied Montanez-Gonzalez’s application for cancellation of removal on two
grounds—first, that he had failed to establish sufficient continuous residency to be eligible for
relief and second, that he had not established that his removal would create the requisite hardship
No. 13-4276 Montanez-Gonzalez v. Holder Page 3
for his citizen children. He appealed to the BIA, which affirmed the denial on only the hardship
ground. Montanez-Gonzalez filed this petition for review, as well as two motions to stay his
removal. Both motions for a stay were denied, and he was removed on October 31, 2014. The
government contends that we lack jurisdiction over his petition.
II. DISCUSSION
Congress created cancellation of removal as a discretionary form of relief in the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, 110 Stat. 3001,
replacing an earlier form of relief called suspension of deportation. To be eligible for
cancellation of removal, the alien must satisfy four requirements: (1) continuous physical
presence for at least ten years; (2) good moral character; (3) not having been convicted of certain
crimes; and (4) that the 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). Even for an alien who meets these
requirements, cancellation of removal is a discretionary form of relief, meaning that the IJ will
grant relief only if the alien warrants a favorable exercise of discretion. See Matter of M-L-M-A-,
26 I. & N. Dec. 360, 364 (BIA 2014) (considering the analogous discretionary nature of
§ 1229b(b)(2)).
The Immigration and Nationality Act starkly limits our jurisdiction to review a decision
not to grant cancellation of removal: “[N]o court shall have jurisdiction to review—any
judgment regarding the granting of relief under … [8 U.S.C. §] 1229b.” 8 U.S.C.
§ 1252(a)(2)(B)(i). We retain jurisdiction, however, to consider “constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(D). Any such claims must have been administratively
exhausted, that is, presented to the BIA in the first instance. 8 U.S.C. § 1252(d)(1); Ramani v.
Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004).
Montanez-Gonzalez’s first claim is that the BIA and IJ failed to follow the legal
standards or rules of decision articulated in the BIA’s own binding precedent in determining that
his daughters would not experience “exceptional and extremely unusual hardship” as a result of
his removal. See 8 U.S.C. § 1229b(b)(1)(D). We have jurisdiction to consider such an argument
as a non-discretionary question of law. See Ettienne v. Holder, 659 F.3d 513, 517–18 (6th Cir.
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2011). This jurisdiction does not extend to “claims that can be evaluated only by engaging in
head-to-head comparisons between the facts of the petitioner’s case and those of precedential
decisions.” Id. at 518. Such factual analysis would be an impermissible “second-guessing the
agency’s weighing of factors.” Id.
In Matter of Monreal, 23 I. & N. Dec. 56 (BIA 2001), the first case considering
cancellation of removal, the BIA developed the standard for identifying “exceptional and
extremely unusual hardship.” The Board first noted that Congress had chosen a higher hardship
standard than the earlier “extreme hardship” standard, and discussed interpretations of
“exceptional and extremely unusual hardship” under prior versions of the Act. 23 I. & N. Dec. at
59–60. Finding the suspension of deportation cases not determinative, the BIA focused on the
1996 statutory language and legislative history. Id. at 62. The BIA determined that “exceptional
and extremely unusual hardship” must be “‘substantially’ beyond the ordinary hardship that
would be expected when a close family member leaves this country” but that the standard,
“although high, is clearly less than ‘unconscionable.’” Id. at 61–62. To determine the degree of
hardship, the IJ must “consider the ages, health, and circumstances of qualifying … United
States citizen relatives,” including “family ties in the United States and abroad … [and] the
political and economic conditions in the country of return.” Id. at 63. “Factors relating to the
applicant himself or herself can only be considered insofar as they may affect the hardship to a
qualifying relative.” Id. The factors must be “considered in the aggregate.” Id. at 64.
Montanez-Gonzalez contends that the BIA and IJ did not follow Monreal because they
employed an improper balancing approach to the hardship determination and ignored evidence of
violence in Zacatecas, Mexico that would impose hardship on the citizen children. He argues
that the IJ’s use of the introductory phrase “on balance” is evidence of balancing the hardship
factors, rather than considering them in the aggregate. The BIA properly rejected this argument.
The IJ’s decision does not show that he identified significant hardships on certain factors but
found those hardships outweighed by other factors. Instead, the IJ properly examined the
consequences of removal for the citizen children and found that the hardship presented did not
reach the level required under the statute.
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Montanez-Gonzalez next contends that the IJ and BIA imposed an inappropriately high
standard for adverse country conditions. The IJ determined that the evidence of risk of violence
was too general to show that Montanez-Gonzalez and his family “would be moving directly into
what would be the equivalent of a warzone.” Though inartfully stated, the BIA
affirmed, restating the standard to hold that Montanez-Gonzalez “has not sufficiently shown
that his children would be left unprotected from harm or exposed to violence in Mexico.”
Montanez-Gonzalez did present general evidence about gang violence in his home region in
Mexico, as well as more specific testimony about the gruesome murder of a cousin and threats to
his mentally ill brother-in-law. There is no reason to believe that the IJ failed to consider this
evidence. And we lack jurisdiction to second-guess the BIA’s judgment call about whether the
evidence was sufficient to show that removal would place Montanez-Gonzalez’s three citizen
daughters in danger.
On a different tack, Montanez-Gonzalez contends that he was deprived of his due process
right to a fair hearing because the IJ did not consider evidence about potential medical hardship
for his middle daughter. “Fifth Amendment guarantees of due process extend to aliens in
deportation proceedings, entitling them to a full and fair hearing.” Huicochea-Gomez v. INS, 237
F.3d 696, 699 (6th Cir. 2001). The government contends that Montanez-Gomez had no
constitutionally protected interest in the discretionary relief of cancellation. “While it is true that
the failure to be granted discretionary relief does not amount to a deprivation of liberty interest,
we have also held that the Fifth Amendment's Due Process Clause mandates that removal
hearings be fundamentally fair and that a petitioner is entitled to a full and fair hearing.”
Abdallahi v. Holder, 690 F.3d 467, 472–73 (6th Cir. 2012) (internal quotation marks, citations,
and alterations removed); see also Gordillo v. Holder, 640 F.3d 700 (6th Cir. 2011) (considering
an ineffective-assistance claim, grounded in constitutional due process, arising from a denial of
discretionary NACARA relief). The discretionary nature of certain forms of relief does not
eliminate the constitutional requirement of a fair hearing for all aliens facing removal.
For Montanez-Gonzalez to succeed on his constitutional claim, he must show that “there
was a defect in the removal proceeding, and if so, [that he] was prejudiced by the defect.” Id. at
472. “A showing of prejudice is essentially a demonstration that the alleged violation affected
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the outcome of the proceedings.” Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005).
Montanez-Gonzalez cannot show that he was prejudiced. After the close of evidence, he orally
moved to introduce a letter from his daughter’s pediatrician’s office noting that she had an
elevated lead level and an appointment with an orthopedic specialist. Even if the IJ’s refusal to
allow the letter into evidence was a constitutional defect, he would not be able to establish
prejudice. Although the IJ noted that the letter was “preliminary [and] speculative” and would
therefore not have affected the hardship determination, he specifically noted the letter and
the claim of elevated lead levels in the course of announcing his oral decision. Even if
Montanez-Gonzalez has shown a defect—a question we do not decide—exclusion of the letter
did not affect the outcome. The due process argument therefore lacks merit.
Finally, Montanez-Gonzalez raises claims that challenge the Monreal approach to
“exceptional and extremely unusual hardship” on statutory and constitutional grounds. He also
contends that his due process rights were violated because the IJ did not consider the effect of a
head wound on his economic prospects after removal. Because he did not raise these claims
before the BIA, we lack jurisdiction to consider them. See Ramani, 378 F.3d at 560.
For all the reasons set forth above, we DISMISS the petition in part for lack of
jurisdiction and DENY the remainder of the petition.