Arleni-Escobar v. Sessions
685 F. App'x 656
10th Cir.2017Background
- Arleni-Escobar, a Mexican national, entered the United States without inspection and was charged with being present without admission or parole after a DUI arrest in Utah.
- She conceded the charge but sought cancellation of removal under 8 U.S.C. § 1229b(b)(1), which requires ten years’ presence, good moral character, absence of disqualifying offenses, and hardship to a qualifying relative.
- The IJ found she failed to prove ten years’ continuous presence due to an unspecified exact entry date and failed to show exceptional or extremely unusual hardship to her U.S. citizen daughter, denying cancellation.
- The BIA affirmed, based on the hardship determination, and did not address the ten-year continuous-presence ground because cancellation would still be unavailable given the hardship finding.
- Ms. Arleni-Escobar petitioned for review; the government argued this court lacked jurisdiction under § 1252(a)(2)(B)(i); the court agreed, noting a narrow exception for constitutional questions or questions of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition for review is reviewable given the jurisdictional bar | Arleni-Escobar argues for review of the hardship determination | Government contends no jurisdiction to review discretionary hardship finding | Lack of jurisdiction affirmed; hardship determination not reviewable under § 1252(a)(2)(B)(i) |
| Whether the challenge to the continuous-presence ground is reviewable or moot | Arleni-Escobar contends the IJ’s continuous-presence ground should be reviewable | Government asserts that the continuous-presence issue is moot because hardship denial precludes relief | Challenge to continuous-presence was moot and thus not reviewable due to the hardship ruling |
Key Cases Cited
- Arambula-Medina v. Holder, 572 F.3d 824 (10th Cir. 2009) (limited jurisdictional exception for constitutional claims or questions of law; court reviews only legal questions?)
- Diallo v. Gonzales, 447 F.3d 1274 (10th Cir. 2006) (questions of law allow review of narrow statutory-construction issues; otherwise discretionary/factual challenges are outside review)
- Sabido Valdivia v. Gonzales, 423 F.3d 1144 (10th Cir. 2005) (review typically limited by jurisdictional bar; hardship-ground challenge not reviewable)
- Velasco v. Holder, 736 F.3d 944 (10th Cir. 2013) (court reviews BIA’s reasoning only to extent grounded in the agency’s stated grounds)