Elzar Orpinel-Robledo v. Merrick B. Garland
5f4th893
8th Cir.2021Background
- Orpinel-Robledo, a Mexican national, entered the U.S. without inspection in 1995–96 and removal proceedings began in 2011.
- He applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1), claiming his three U.S.-citizen children would suffer "exceptional and extremely unusual hardship" if he were removed.
- Immigration Judge (IJ) Megan Foote Monsky heard the case but was unavailable to complete the decision; the case was reassigned to IJ Nancy J. Paul under 8 C.F.R. § 1240.1(b).
- IJ Paul reviewed the full record, found the petitioner and witnesses credible, but concluded the children were healthy and cared for by their mothers/step‑fathers and that Orpinel-Robledo could find work in Mexico; she denied cancellation as not meeting the "exceptional and extremely unusual" hardship standard.
- The BIA affirmed, rejecting the claim that substitution of IJs violated the statute or due process; Orpinel-Robledo petitioned for review in the Eighth Circuit.
- The Eighth Circuit denied the petition, holding (1) substitution of IJs was permissible and (2) no due process violation occurred because there is no protected liberty interest in discretionary cancellation relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statute requires the same IJ to preside over hearing and decision | Orpinel-Robledo: the phrase "the immigration judge" means the same judge must conduct both hearing and decision | Government/BIA: statutory language refers to whichever IJ conducts that part; substitution is permitted | Court: statutory text and precedent allow substitution; no requirement that the initial IJ complete the decision |
| Whether substituting IJs violated due process | Orpinel-Robledo: substitution deprived him of procedural fairness and prejudiced his case | Government/BIA: cancellation is discretionary; no constitutionally protected interest in relief; substitute IJ complied with regulatory familiarity requirement | Court: due process claim fails—no protected liberty interest in discretionary cancellation; IJ properly familiarized herself with the record |
Key Cases Cited
- Nielsen v. Preap, 139 S. Ct. 954 (2019) (interpretation of definite article "the" in statutory context)
- Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021) (addressed use of the indefinite article "a" in notice-to-appear context; court explained it is not controlling here)
- Caballero-Martinez v. Barr, 920 F.3d 543 (8th Cir. 2019) (upheld substitute IJ who reviewed record and denied cancellation based on insufficient hardship evidence)
- Nunez-Portillo v. Holder, 763 F.3d 974 (8th Cir. 2014) (no constitutionally protected liberty interest in discretionary cancellation of removal)