Judy Perez-Perez v. Jefferson Sessions, III ( 2018 )

FILED
NOT FOR PUBLICATION
AUG 30 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUDY PEREZ-PEREZ, AKA Sandra No. 15-71658
Perez,
Agency No. A097-469-497
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 28, 2018**
Pasadena, California
Before: BYBEE and WATFORD, Circuit Judges, and HERNANDEZ,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Marco A. Hernandez, United States District Judge for
the District of Oregon, sitting by designation.
Judy Perez-Perez petitions for review of the Board of Immigration Appeals’
(“BIA”) decision to deny her application for “special-rule” cancellation of removal
under the Immigration and Nationality Act (“INA” or “Act”) § 240A(b)(2), 8
U.S.C. § 1229b(b)(2). We have jurisdiction under 8 U.S.C. § 1252. Our review is
de novo. Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). For the
reasons stated below, we deny the petition for review.
I. Petitioner’s Two Sons Were Not “Children” for the Purpose of
Establishing Hardship Under 8 U.S.C. § 1229b(b)(2)(A)(v)
Petitioner argues that the Immigration Judge (“IJ”) and BIA should have
found that her two sons were “children” when determining whether Petitioner had
any qualifying relatives who would suffer extreme hardship as the result of her
removal. Under 8 U.S.C. § 1229b(b)(2)(A)(v), the Attorney General may cancel
the removal of an alien who is deportable from the United States if the alien
demonstrates, in relevant part, that “the removal would result in extreme hardship
to . . . the alien’s child.” The Act defines “child” as “an unmarried person under
twenty-one years of age.” 8 U.S.C. § 1101(b)(1).
Petitioner argues that her two sons were qualifying children because they
were under twenty-one years old when she filed her special-rule cancellation
application. The IJ and BIA determined that Petitioner’s sons were not children
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under the Act because they were over twenty-one years old when the IJ issued its
final decision. Petitioner’s argument was recently foreclosed by the Ninth Circuit’s
decision in Mendez-Garcia v. Lynch, 840 F.3d 655, 665 (9th Cir. 2016). In that
case, the court concluded that “the BIA could reasonably determine that
§ 1229b(b)(1)(D) requires an alien seeking cancellation to establish hardship to a
qualifying relative as of the time the IJ adjudicates the alien’s application.” Id. at
664. Accordingly, the IJ and BIA correctly found that Petitioner’s sons were not
qualifying relatives.
II. Petitioner Did Not Administratively Exhaust Her Claim That She
Would Suffer Extreme Hardship as the Result of Her Removal
Petitioner claims that her Fifth Amendment due process right was violated
when the BIA failed to consider whether removal would cause her extreme
hardship. Respondent argues that Petitioner failed to administratively exhaust a
claim based on her own extreme hardship because she did not raise the issue in her
brief before the BIA. We “may review a final order only if . . . the alien has
exhausted all administrative remedies available to the alien as of right.” 8 U.S.C.
§ 1252(d)(1). “We are without jurisdiction to hear arguments that a petitioner has
not exhausted by raising and arguing in his brief before the BIA.” He v. Holder,
749 F.3d 792, 795 (9th Cir. 2014).
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The BIA found that Petitioner had not alleged that she would suffer extreme
hardship upon her removal. In her appeal to the BIA, Petitioner challenged the IJ’s
determination that she was not credible. The parties dispute whether that challenge
encompassed the IJ’s finding that Petitioner had not established that she would
suffer extreme hardship. Upon review of the record in this case, we find that
Petitioner did not raise the issue in her brief before the BIA.
In sum, the BIA did not err in concluding that Petitioner failed to satisfy the
extreme hardship requirement necessary to sustain her special-rule cancellation
application.
The petition for review is DENIED.
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