494 F. App'x 680
8th Cir.2012Background
- Soto-Roque, a Mexican citizen, first entered the U.S. in 1994 without admission or parole and has been apprehended and returned multiple times.
- Removal proceedings began on August 1, 2007, charging removability under INA 212(a)(6)(A)(i); he sought cancellation under INA 240A(b) or voluntary departure under INA 240B(b).
- IJ denied cancellation and ordered removal to Mexico; BIA dismissed on December 22, 2009, but remanded for required advisals; on remand Soto-Roque moved to admit new evidence, which the IJ refused.
- BIA dismissed the appeal on December 28, 2011, denying cancellation but granting voluntary departure; Soto-Roque timely challenged the BIA decision in this court.
- Petition argues due process violations and misapplication of law, including hardship factor weighing, consideration of Mexican conditions, and the continuous presence standard; Government argues the challenge attacks discretionary denial and is not reviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the hardship determination is reviewable. | Soto-Roque contends BIA misweighed factors and failed to consider applicable hardship factors. | Government argues hardship weighing is discretionary and not reviewable. | Discretionary; no review of hardship weighing. |
| Whether the BIA erred by failing to aggregate hardship factors and consider parents’ claims. | Soto-Roque claims cumulative hardship and parental factors were improperly weighed. | Government asserts such aggregation is discretionary and not subject to review. | Discretionary determination; not reviewable. |
| Whether the BIA erred in applying the legal standard related to continuous presence. | Soto-Roque argues the ten-year continuous presence standard was misapplied. | Government maintains the standard was correctly applied and is not reviewable as a legal question. | No jurisdiction to review the discretionary standard on continuous presence. |
| Whether due process was violated by refusing to admit new evidence on remand. | New evidence could affect credibility and hardship findings; due process requires admission. | Relief is discretionary; lack of credibility or proof—not due process violation—predicates denial. | No due process violation; discretionary relief not guaranteed. |
Key Cases Cited
- Gomez-Perez v. Holder, 569 F.3d 370 (8th Cir. 2009) (courts cannot review discretionary cancellation decisions)
- Guled v. Mukasey, 515 F.3d 872 (8th Cir. 2008) (no due process right to discretionary relief)
- Pinos-Gonzalez v. Mukasey, 519 F.3d 436 (8th Cir. 2008) (review limited to constitutional claims or legal questions)
- Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011) (cumulative hardship not reviewable as legal error)
- INS v. Yang, 519 U.S. 26 (1996) (discretionary nature of relief; no due process liberty interest)