Marco Sanchez-Velasco v. Eric H. Holder, Jr. ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2131
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Marco Sanchez-Velasco, *
*
Petitioner, *
* On Petition for Review of an
v. * Order from the Board of
* Immigration Appeals.
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
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Submitted: January 14, 2010
Filed: January 20, 2010
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Before MURPHY and BYE, Circuit Judges, and GOLDBERG,1 Judge.
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MURPHY, Circuit Judge.
Marco Sanchez-Velasco petitions for review of the decision of the Board of
Immigration Appeals (BIA) affirming the immigration judge's (IJ's) denial of his
application for cancellation of removal on the basis that he failed to prove that he
had been continuously physically present in the United States for ten years, as
1
The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
required under 8 U.S.C. § 1229b(b)(1)(A). Sanchez-Velasco argues that the IJ held
him to an impermissibly high burden of proof and denied him due process of law
by deeming his testimony insufficient by itself and by pretermitting his application
before two witnesses testified. We deny the petition.
I.
Sanchez-Velasco is a native and citizen of Mexico who was charged on October
26, 2007 with removability as an inadmissible alien, in violation of 8 U.S.C. §
1182(a)(6)(A)(I). He conceded removability but sought cancellation of removal under
§ 1229b(b)(1)(A), which required him to prove that he had been continuously
physically present in the country since at least October 26, 1997. Id.; § 1229b(d)(1)
(term of continuous physical presence deemed to terminate upon service of notice to
appear). At a master calender hearing before the IJ, Sanchez-Velasco testified that he,
his sister, and his mother had entered the United States without admission or parole
on or about December 17, 1996. They resided in California for approximately six
months before moving to Illinois, where he attended elementary, junior high, and high
school. He submitted school records which indicated that he had attended an
elementary school in Collinsville, Illinois from March 5, 1998 through 2000 and that
he had attended junior high school there in 2001. He also testified that although his
parents lived in Illinois and could attest to his 1996 entry, they refused to testify for
fear of being subjected to removal proceedings.
After Sanchez-Velasco testified, the Department of Homeland Security moved
to pretermit his application on the basis that he had failed to prove that he had been
present in the country since October 26, 1997. The IJ agreed, noting that the school
records established his presence in the country only as of March 1998. Although the
IJ did not make an adverse determination about Sanchez-Velasco's credibility, he
stated that a negative inference could be drawn from petitioner's admission to using
a false social security number and from his refusal to answer further questions about
it. The IJ concluded that corroborating testimony from Sanchez-Velasco's parents was
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available but unused, but he "underst[ood] their reluctance to testify in Court" given
their lack of immigration status. After confirming that Sanchez-Velasco's two
witnesses had known him for less than ten years and were present only to testify as to
the hardship his removal would cause his family, the IJ found him removable and
denied his application. The BIA affirmed, concluding that the IJ had neither denied
Sanchez-Velasco due process nor erred in determining that he had failed to prove the
requisite ten years of continuous physical presence. Sanchez-Velasco's timely petition
for review of the BIA's final order of removal followed.
II.
Although we lack jurisdiction to review the ultimately discretionary denial of
cancellation of removal, 8 U.S.C. § 1252(a)(2)(B), we are not precluded from
considering "constitutional claims or questions of law raised upon a petition for
review," § 1252(a)(2)(D). We also retain jurisdiction "[to] review the
nondiscretionary determinations underlying a denial of an application for cancellation
of removal, 'such as the predicate legal question whether the IJ properly applied the
law to the facts in determining an individual's eligibility.'" Pinos-Gonzalez v.
Mukasey, 519 F.3d 436, 439 (8th Cir. 2008) (quoting Guled v. Mukasey, 515 F.3d
872, 880 (8th Cir. 2008)). Because the BIA essentially adopted the IJ's findings and
analysis, both decisions are within the scope of our review. See Krasnopivtsev v.
Ashcroft, 382 F.3d 832, 837 (8th Cir. 2004). We review conclusions of law de novo,
according substantial deference to the agency's interpretation of immigration statutes
and regulations. Kim v. Holder, 560 F.3d 833, 836 (8th Cir. 2009). "The
administrative findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude the contrary." § 1252(b)(4)(B).
A.
Sanchez-Velasco contends that the IJ held him to an impermissibly high burden
of proof by according insufficient weight to his testimony that he had entered the
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country in 1996 and by requiring him to corroborate his testimony with other
evidence. In determining whether an alien has proved the requisite ten years of
continuous physical presence, "the [IJ] shall weigh the credible testimony along with
other evidence of record." 8 U.S.C. § 1229a(c)(4)(B). If the IJ deems it necessary,
however, the alien must corroborate "otherwise credible testimony" with additional
evidence unless the alien demonstrates that it is not reasonably available. Id. An IJ's
determination that corroborating evidence is reasonably available is conclusive unless
"a reasonable trier of fact [would be] compelled to conclude that [it] is unavailable."
§ 1252(b)(4).
Sanchez-Velasco argues that because the IJ made no adverse credibility
determination, his testimony that he had entered the country in 1996 is due a
"rebuttable presumption of credibility on appeal" under § 1229a(c)(4)(C). It was
within the IJ's discretion, however, to require Sanchez-Velasco to corroborate any
"otherwise credible testimony" with reasonably available evidence. § 1229a(c)(4)(B).
The IJ did that and concluded that corroborative testimony from Sanchez-Velasco's
parents was reasonably available but unused despite their fear of being subjected to
removal proceedings. Because the evidence does not compel a contrary conclusion,
there is no basis upon which to reverse the IJ's finding. See § 1252(b)(4). Sanchez-
Velasco testified that his parents were living in Illinois at the time of the hearing and
could corroborate his testimony. They could therefore have testified or submitted
affidavits on his behalf.2
Sanchez-Velasco invokes the Ninth Circuit's decision in Lopez-Alvarado v.
Ashcroft, 381 F.3d 847 (9th Cir. 2004), for the proposition that "the lack of
documentary evidence is not an adequate basis for rejecting a petitioner's [claim of
continuous presence]." Id. at 855 (quoting Vera-Villegas v. INS, 330 F.3d 1222, 1225
2
We note that Sanchez-Velasco does not argue that fear of removal proceedings
renders a witness not reasonably available.
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(9th Cir. 2003)) (alteration in original). But in that case the Ninth Circuit also stated
expressly that documentary evidence is unnecessary as a matter of law only "if the
oral and written testimony is otherwise sufficient." Id. Sanchez-Velasco's argument
is thus unavailing, for the IJ determined that his testimony was insufficient standing
alone. More importantly, however, Lopez-Alvarado preceded enactment of the REAL
ID Act of 2005, see Pub. L. No. 109-13, 119 Stat. 231, 306, § 101(h)(2) (codified as
amended in scattered sections of 8 U.S.C.), which definitively provided the IJ with
discretion to demand reasonably available corroborative evidence. § 1229a(c)(4)(B).
Sanchez-Velasco's arguments amount to a challenge to the IJ's finding that he
had not been in the country on or before October 26, 1997. The only evidence
supporting the contention that he had entered the country in 1996 was his own
testimony, about which the IJ drew a negative inference, and he failed to provide
reasonably available corroborative evidence. On that basis, no reasonable adjudicator
would be compelled to conclude that the IJ's finding was incorrect. It is therefore
conclusive. See § 1252(b)(4)(B).
B.
Sanchez-Velasco also contends that the IJ deprived him of his liberty without
due process by excluding his witnesses and by failing to fully consider the evidence
presented. The IJ pretermitted Sanchez-Velasco's application only after confirming
that his witnesses had known him for less than ten years and that they therefore could
not corroborate his testimony that he had entered the U.S. in 1996. Sanchez-Velasco
argues that his witnesses should nevertheless have been allowed to testify because
they would have attested to his credibility and that he had told them of his 1996 entry.
See Kim, 560 F.3d at 836 (hearsay evidence admissible in removal proceedings if
probative and fundamentally fair).
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The Fifth Amendment prohibits the government from depriving an alien of his
liberty without due process of law. Mathews v. Diaz, 426 U.S. 67, 77 (1976). Yet
that right affords no protection against the deprivation of liberty interests that are not
constitutionally cognizable. Board of Regents v. Roth, 408 U.S. 564, 569 (1972);
Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 718 (8th Cir. 1995).
Accordingly, aliens have no right to due process in the purely discretionary remedy
of cancellation of removal because no constitutionally cognizable liberty interest
arises from it. Guled, 515 F.3d at 880. That is because "[c]ancellation of removal is
. . . roughly equivalent to executive clemency, over which the executive branch has
unfettered discretion." Id.
Since Sanchez-Velasco lacks a protected interest in the ultimately discretionary
relief of cancellation of removal, see id., his claim that the IJ's actions violated his due
process rights is unavailing, see Movers Warehouse, 71 F.3d at 718. He urges
reconsideration of that rule, arguing that aliens will be unable to ensure the
fundamental fairness of removal hearings without the guarantee of due process.
However, we are without power to revisit that rule here, as the court in Guled squarely
and comprehensively resolved the issue. See United States v. Lovelace, 565 F.3d
1080, 1085 (8th Cir. 2009).
III.
Accordingly, we deny the petition for review. Moreover, because Sanchez-
Velasco's petition automatically terminated the BIA's grant of voluntary departure, see
8 C.F.R. § 1240.26(i), his alternative motion to uphold that grant is denied.
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