Rivera v. Sessions , 903 F.3d 147 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 18-1243
CARLOS M. RIVERA,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Selya, and Lipez,
Circuit Judges.
Sameer H. Hasan and Hasan Law Group PLLC on brief for
petitioner.
Lisa M. Damiano, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Chad A.
Readler, Acting Assistant Attorney General, Civil Division, and
Greg D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.
September 6, 2018
LYNCH, Circuit Judge. Carlos M. Rivera, a native and
citizen of Guatemala who entered the United States illegally in
1992, seeks review of a February 2018 Board of Immigration Appeals
(BIA) final decision denying his application for cancellation of
removal pursuant to section 240A(b)(1) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1229b(b)(1).1 An immigration
judge (IJ) denied Rivera's request, in part due to the criminal
charges pending against Rivera of child molestation of his ex-
wife's then-twelve-year-old granddaughter. The BIA affirmed the
IJ and dismissed the appeal on the bases that Rivera had failed to
demonstrate exceptional and extremely unusual hardship to a
qualifying relative, and also that he did not establish that he
warranted cancellation of removal as a matter of discretion. That
is the order now before us. We dismiss Rivera's petition for lack
of jurisdiction over his attacks on the BIA's decision.
I.
We give more details on the background facts. Rivera
last entered the United States without admission or inspection in
1992.
1 Rivera had entered the United States without inspection
in 1992, and an immigration judge issued an order of removal in
2012, which the BIA affirmed. Rivera voluntarily dismissed an
appeal to this court. For reasons explained below, Rivera was
heard on an application for cancellation of removal in 2017, which
was denied.
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A. Prior Proceedings
In January 2008, the U.S. Department of Homeland
Security (DHS) served Rivera with a Notice to Appear in removal
proceedings. At a hearing before an IJ in May 2012, Rivera
conceded removability, but sought cancellation of removal pursuant
to INA § 240A(b)(1) and the Nicaraguan Adjustment and Central
American Relief Act of 1997 (NACARA), Pub. L. No. 105-100, §§ 201-
204, 111 Stat. 2160, 2196-2201 (codified as amended in scattered
sections of 8 U.S.C.). In the alternative, Rivera sought voluntary
departure. Rivera and his former wife had applied for relief and
listed their then-minor daughter, Jackelyn, who is a U.S. citizen,
as the qualifying relative.
The IJ denied Rivera's application in July 2012.2 The
BIA found no error on Rivera's appeal of that decision. In April
2015, Rivera filed a motion before the BIA to reopen and remand
the proceedings, arguing ineffective assistance of his counsel.
2 The IJ found that Rivera was not entitled to relief under
NACARA because he was unable to meet his burden of showing either
that he entered the United States on or before October 1, 1990, or
that he timely registered for benefits under the ABC settlement
agreement. See Am. Baptist Churches v. Thornburgh, 760 F. Supp.
796 (N.D. Cal. 1991); 8 C.F.R. §§ 1240.60, 1240.61(a)(1)-(2). The
IJ further found that Rivera failed adequately to establish ten
years of continuous physical presence for purposes of INA
§ 240A(b)(1). INA § 240A(b)(1)(A); 8 U.S.C. § 1229b(b)(1)(A).
The IJ also denied the request for voluntary departure due to
Rivera's inability to establish by clear and convincing evidence
that he intended to depart the United States, and because Rivera
did not have valid travel documents. INA § 240B(b)(1)(A)-(D); 8
C.F.R. § 1240.26(c).
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The BIA initially denied Rivera's motion, but granted his
subsequent motion to reconsider the decision in September 2015,
after DHS did not file an opposition. The BIA remanded the case
to the IJ for further proceedings as to Rivera's application for
cancellation of removal under INA § 240A(b)(1).3
B. Present Case
Rivera's updated April 2017 application under INA
§ 240A(b)(1) listed Marlen Castaneda, his new wife as of August
2016, as the qualifying relative (his daughter Jackelyn had turned
twenty-one in the interim and no longer qualified). Rivera
testified that Castaneda suffers from anxiety, depression, and
problems with her back, and that she takes medication for back
pain, anxiety, and cholesterol. Castaneda's testimony confirmed
this, and she attributed her depression to Rivera's detention.4
Castaneda works as a cosmetologist and drives herself to her
various appointments.
Rivera has been arrested five times, in 1992, 1995, 1997,
2007, and 2016; three of the arrests resulted in dismissal of all
charges. The 1992 arrest was for sexual battery, but he pleaded
guilty to simple assault and battery. The 2016 arrest was for
3 Rivera also successfully moved to sever his removal
proceedings from that of his wife after they divorced in May 2015.
4 Immigration and Customs Enforcement detained Rivera in
March 2017 due to pending criminal charges of child molestation.
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child molestation of Rivera's ex-wife's then-twelve-year-old
granddaughter; the charges were still pending as of his hearing
date before the IJ. Rivera invoked his Fifth Amendment right
against self-incrimination when asked for further details relating
to the 2016 arrest, so the government offered police reports
relating to the incident, over Rivera's objection.
The IJ denied Rivera's application for relief under INA
§ 240A(b)(1) on September 6, 2017. The IJ had "misgivings" about
Rivera's credibility, but declined to make an explicit adverse
credibility finding. The IJ found that Rivera had failed to
establish that Castaneda would suffer exceptional and extremely
unusual hardship if Rivera were removed. The IJ noted that
Castaneda's back problems began several years before she married
Rivera, she had not required overnight hospitalization in
connection with her back injuries, she did not apply for and was
not receiving disability benefits, and that her anxiety and
depression were not unusual for those with loved ones in similar
proceedings. The IJ also found the suggestions of Castaneda's
potential financial hardship to be speculative, and noted that
Castaneda works and had supported herself before her recent
marriage to Rivera.
The IJ additionally denied Rivera's application under
INA § 240A(b)(1) as a matter of discretion. The IJ found that
Rivera had several "positive equities" in his favor: he entered
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the United States in the early 1990s, had a wife and daughter who
were U.S. citizens, was active in church, worked, paid his taxes,
and had no contacts in Guatemala. The IJ drew negative factors
from Rivera's criminal record: the arrest in 1992 for sexual
battery, for which Rivera pled guilty to simple assault and
battery, and "[m]ost recently, and most seriously," the 2016 arrest
for first and second degree child molestation. The IJ drew an
adverse inference from Rivera's invocation of the Fifth Amendment,
and concluded in light of the serious, pending charges that Rivera
had not met his burden of establishing that he merited a favorable
exercise of discretion.
Rivera timely appealed, and the BIA entered a four-page
order affirming the IJ's decision. The BIA determined that the
IJ's findings were not clearly erroneous, and that Rivera had not
demonstrated that Castaneda "would suffer hardship in the
aggregate substantially different from, or beyond, that which
would normally be expected from removal of an alien with close
family members here." The BIA further concluded that Rivera had
not carried his burden of demonstrating that he merited
cancellation of removal as a matter of discretion, because even
when Rivera's positive factors are viewed "in the best light for
[Rivera], they are outweighed by his criminal history." The BIA
rejected Rivera's due process arguments, concluding that the IJ
properly considered the arrest for the pending child molestation
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charge, as well as the invocation of his Fifth Amendment rights.
The BIA also rejected Rivera's claim that he was deprived of a
fundamentally fair hearing, because the IJ provided Rivera with a
meaningful opportunity to be heard. Furthermore, the BIA found no
showing of prejudice, as Rivera had not demonstrated that he was
unable to fully present his claim.
II.
Courts are statutorily barred from reviewing "any
judgment regarding the granting of relief under section . . .
1229b," the cancellation of removal provision, unless the petition
raises "constitutional claims or questions of law." 8 U.S.C.
§§ 1252(a)(2)(B)(i), (D); see Castro v. Holder, 727 F.3d 125, 128
(1st Cir. 2013); Santana-Medina v. Holder, 616 F.3d 49, 52 (1st
Cir. 2010). "A bare allegation of either a constitutional
shortfall or legal error" will not suffice, however. Ayeni v.
Holder, 617 F.3d 67, 71 (1st Cir. 2010). To confer jurisdiction,
"the claim of constitutional or legal error must at least be
colorable." Id.
No colorable legal or constitutional claim is stated.
Rivera argues that there is legal error, positing that the BIA
failed to follow its own precedent. He relies on Matter of
Monreal-Aguinaga, 23 I&N Dec. 56 (BIA 2001), for the proposition
that the IJ should have made a "specific finding regarding the[]
overall severity" of Castaneda's health issues. However, Matter
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of Monreal-Aguinaga simply states that a "strong applicant might
have a qualifying child with very serious health issues, or
compelling special needs in school." Id. at 63 (emphasis added).
Rivera misreads that decision, which does not require a specific
finding as to the overall severity of a qualifying relative's
health issues. See generally id. Matter of Monreal-Aguinaga only
requires that "all hardship factors [be] considered in the
aggregate when assessing exceptional and extremely unusual
hardship."5 Id. at 64.
Rivera's argument, in reality, concerns the "relative
evidentiary weight or level of detail accorded to specific facts
in the agency's hardship determination," so we may not consider
it. Alvarado v. Holder, 743 F.3d 271, 275 (1st Cir. 2014). A
petitioner "cannot 'transform an unreviewable issue of fact into
a reviewable issue of law' by the simple expedient of cloaking
what is essentially a factual claim in the raiment of
constitutional or legal error." Ramirez-Matias v. Holder, 778
F.3d 322, 326 (1st Cir. 2015) (citing Alvarado, 743 F.3d at 275).
Rivera also argues that there was constitutional due
process error. That claim, too, is not colorable. Rivera
challenges as a denial of due process the admission of the police
5 In any event, the IJ both considered all of Castaneda's
health problems cumulatively, and explained the reasons for
finding them insufficient.
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report detailing the pending child molestation charges, the
adverse inference drawn from Rivera's invocation of his Fifth
Amendment rights with regard to those charges, and the denial of
his request to continue proceedings until the charges were
resolved.
Rivera's mere "invocation of the Due Process Clause does
not create a constitutional claim for the purpose of 8 U.S.C.
§ 1252(a)(2)(D)." Cruz-Orellana v. Sessions, 878 F.3d 1, 5 (1st
Cir. 2017). The BIA found that Rivera had had a fair hearing and
there was no violation of due process. A claim of deprivation of
due process requires that a "'cognizable liberty or property
interest be at stake.'" Kandamar v. Gonzales, 464 F.3d 65, 69
(1st Cir. 2006) (quoting DaCosta v. Gonzales, 449 F.3d 45, 50 (1st
Cir. 2006)). Rivera cannot demonstrate that he has a protected
liberty interest here, as we have already held that
"[d]iscretionary forms of relief do 'not rise to the level of such
a protected interest.'" Id. (quoting DaCosta, 449 F.3d at 50).
And even if there were a protected interest at stake,
none of Rivera's arguments even colorably raise a due process claim
under our cases. The police report was admissible and, in any
event, Rivera's witnesses established the key facts. See Cruz-
Orellana, 878 F.3d at 5 (rejecting argument that IJ violated
petitioner's due process rights "by relying on a police report
that contained hearsay in denying him voluntary departure as a
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matter of discretion"). The drawing of an adverse inference was
not even arguably a due process violation. See Garcia-Aguilar v.
Lynch, 806 F.3d 671, 676 (1st Cir. 2015) (noting that "an IJ may
draw an adverse inference from an alien's invocation of the Fifth
Amendment during removal proceedings," and that the IJ was
permitted to conclude that petitioner's silence corroborated
certain documentation). The argument regarding denial of a further
continuance to await the outcome of the criminal proceedings is
even weaker. See Amouri v. Holder, 572 F.3d 29, 36 (1st Cir. 2009)
("The grant or denial of a continuance rests largely in the
discretion of the [IJ]. While that authority must be exercised
judiciously and with an eye toward fundamental fairness, even the
arbitrary denial of a continuance cannot sink to the level of a
due process violation unless it results in actual prejudice."
(citation omitted)).6
Moreover, "before a petitioner in an immigration case
may advance a procedural due process claim, he must allege some
cognizable prejudice fairly attributable to the challenged
process." Lattab v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004).
6 Indeed, Rivera may have benefitted from the denial of a
continuance. The respondent tells us that in June 2018, Rivera
was convicted in Rhode Island of one count of first degree child
molestation and two counts of second degree child molestation.
See Amouri, 572 F.3d at 36 ("'A court will find such prejudice
only when it is shown that an abridgement of due process is likely
to have affected the outcome of the proceedings.'" (quoting Pulisir
v. Mukasey, 524 F.3d 302, 311 (1st Cir. 2008))).
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Rivera has made no such showing here. Accordingly, there is no
jurisdiction over these claims. See id.; Alvarado, 743 F.3d at
275.
III.
For the reasons set forth above, Rivera's petition for
review is dismissed for lack of jurisdiction.
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