Delgado-Sanchez v. Atty Gen USA , 165 F. App'x 230 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
2-7-2006
Delgado-Sanchez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4533
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4533
JAIME DELGADO-SANCHEZ;
LORENZA JIMENEZ-TECANHUEY,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review from an Order of the
Board of Immigration Appeals
(Board No. A77-034-273)
Submitted Under Third Circuit LAR 34.1(a)
on September 5, 2003
BEFORE: SLOVITER, ROTH and NYGAARD, Circuit Judges
(Opinion Filed: February 7, 2006)
OPINION
ROTH, Circuit Judge:
Jaime Delgado-Sanchez and Lorenza Jiminez-Tecanhuey petition for review of the
Order of the Board of Immigration Appeals (BIA) denying their application for
cancellation of removal. We do not have jurisdiction to review this petition and therefore
will deny it.
Because the parties are familiar with the facts and procedural posture, we will
provide only a brief synopsis of the events leading up to the appeal.
Petitioners, husband and wife, are both citizens of Mexico. They entered the
United States, without inspection, in October 1988. The petitioners have three children,
one of whom was born in the United States and is a United States citizen. The petitioners
sought discretionary cancellation of removal under 8 U.S.C. §1229b(b)(1).
On October 25, 1999, the Immigration Judge (IJ) issued an oral decision denying
petitioners’ application for cancellation of removal and approving petitioners’ application
for voluntary departure. The IJ found that no “exceptional and extremely unusual
hardship” would result from the petitioners’ removal. The petitioners appealed to the
BIA, which affirmed the IJ’s decision without opinion. The petitioners filed a timely
appeal.
1. Judicial Review of “Exceptional and Extremely Unusual Hardship” Determinations
Under section 240A(b) of the Immigration and Naturalization Act (INA), the
Attorney General has discretion to cancel the removal of a non-permanent resident if,
among other factors, it is established “that 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 . . ..” 8 U.S.C. §1229b(b)(1)(D) (emphasis added). Subsection (a)(2)(B) of
8 U.S.C. provides that “no court shall have jurisdiction to review . . . any judgment
regarding the granting of relief under section . . . 1229b . . .,” thus barring judicial review
of cancellation of removal decisions. Because this case involves the granting of relief
under § 1229b, this jurisdictional bar is implicated. See Mendez-Moranchel v. Ashcroft,
338 F.3d 176, 179 (3d Cir. 2003).
In Mendez-Moranchel, we held that Ҥ 1252(a)(2)(B)(i) strips us of jurisdiction to
review certain discretionary decisions under the Immigration and Naturalization Act as
enumerated by the statute,” and further “[t]he decision whether an alien meets the
hardship requirement in 8 U.S.C. §1229b is such a discretionary judgment.” Id. We also
noted that this decision was consistent with other circuits that considered whether the
hardship requirement was discretionary and thus unreviewable. Id. Therefore, because
the IJ’s determination was based on a finding that the “exceptional and extremely unusual
hardship” requirement was not met, which was within his discretionary power, we lack
jurisdiction to review the decision to deny the petitioners application for cancellation of
removal.
2. Due Process Violation
Petitioners also claim that they were denied their due process rights when the BIA
summarily affirmed the decision of the IJ. Pursuant to 8 C.F.R. § 3.1(a)(7), the BIA may
affirm, without opinion, the decision of the IJ if the Board determines the result was
correct and any errors were harmless and immaterial. 8 C.F.R. § 3.1(a)(7)(ii).
In Dia v. Ashcroft, 353 F.3d 228 (3rd Cir. 2003), we concluded that these
streamlining regulations do not violate due process. Id. at 238. Because the streamlining
regulations comport with due process, the BIA’s actions in affirming the IJ’s order
without opinion were proper. Therefore, the petitioners’ due process rights were not
violated.
In conclusion, because we do not have jurisdiction to review this appeal, we will
deny the petition for review.