Carlos Alvarez Leal v. Loretta E. Lynch
673 F. App'x 630
| 9th Cir. | 2017Background
- Carlos Fabricio Alvarez-Leal, a Mexican national brought to the U.S. as a child, conceded removability and sought cancellation of removal based on "exceptional and extremely unusual hardship" to his U.S. citizen daughter, Daisy.
- Daisy was about two years old at the time of the immigration hearing and could speak only a few words; Alvarez-Leal testified about the hardship she would face if he were removed.
- Alvarez-Leal contends his daughter, a third party, was denied due process because she did not receive notice, an opportunity to be heard, or representation by counsel.
- The IJ denied cancellation, finding Alvarez-Leal failed to prove the requisite hardship because he could relocate to Tijuana to remain geographically close to his daughter; the BIA dismissed his appeal.
- The Ninth Circuit considered only whether Alvarez-Leal’s third‑party due process claim was a "colorable constitutional violation," which would permit review under 8 U.S.C. § 1252(a)(2)(D).
- The court majority concluded Alvarez-Leal failed to show prejudice from the alleged procedural defects (he declined to call witnesses and testified about his child’s hardship), so the claim was not colorable and the petition was dismissed; Judge Pregerson dissented on equitable and humanitarian grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court can review a third‑party due process claim of a noncitizen’s U.S. citizen child under 8 U.S.C. § 1252(a)(2)(D) | Alvarez‑Leal: The child had constitutional due process rights and was denied notice, hearing, and counsel | Government: Review is limited; claim must allege a colorable constitutional violation to invoke jurisdiction | Court: Jurisdiction exists only for colorable constitutional claims; here the claim was not colorable and thus review was dismissed |
| Whether failure to provide notice/representation to the child violated due process | Alvarez‑Leal: The child’s procedural rights were violated by lack of notice, hearing, and counsel | Government: Any error did not result in prejudice and thus fails the due process standard in removal proceedings | Court: Even assuming a right, Alvarez‑Leal failed to show substantial prejudice; no colorable due process violation established |
| Whether the outcome would have differed if the child had participated or been represented | Alvarez‑Leal: Child’s participation could have altered the outcome | Government: Alvarez‑Leal had the opportunity to call witnesses, declined, and effectively presented the child’s interests through his testimony | Court: Alvarez‑Leal did not identify any new information the child could have provided; outcome would not likely differ |
| Whether BIA decision must be reversed on due process grounds | Alvarez‑Leal: BIA’s dismissal should be reversed for constitutional error | Government: Reversal requires showing the outcome may have been affected by the violation | Court: Reversal requires showing error plus substantial prejudice; petitioner did not meet that burden, so dismissal affirmed |
Key Cases Cited
- Martinez-Rosas v. Gonzales, 424 F.3d 926 (9th Cir. 2005) (jurisdiction under § 1252(a)(2)(D) limited to colorable constitutional claims)
- Mendez-Casitro v. Mukasey, 552 F.3d 975 (9th Cir. 2009) (interpretation of habeas and review limits in removal context)
- Lata v. INS, 204 F.3d 1241 (9th Cir. 2000) (due process claim in removal requires error plus substantial prejudice)
- Ibarra-Flores v. Gonzales, 439 F.3d 614 (9th Cir. 2006) (BIA reversal on due process grounds requires showing the outcome may have been affected)
- Platero-Cortez v. INS, 804 F.2d 1127 (9th Cir. 1986) (prejudice standard for reversal on due process grounds)