563 F. App'x 401
6th Cir.2014Background
- Faustino Hernandez-Lara, a Mexican national, entered the U.S. unlawfully and is removable; DHS commenced removal proceedings in 2010.
- Hernandez conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1), which requires, inter alia, 10 years continuous physical presence and that removal would cause "exceptional and extremely unusual hardship" to a qualifying U.S.-citizen relative.
- Hernandez has a six-year-old U.S.-citizen daughter (AHF); he argued his removal would cause her exceptional hardship.
- The immigration judge found two plausible scenarios (daughter returns to Mexico with father or remains in the U.S. with mother) and concluded the hardships were within the range of normal, not "exceptional and extremely unusual." The IJ also found doubts about Hernandez’s claimed entry date.
- The Board of Immigration Appeals affirmed on the hardship ground and expressly did not rely on the IJ’s alternative finding regarding the 10-year continuous-presence requirement.
- Hernandez petitioned this court, arguing the Board’s discretionary denial violated his daughter’s Equal Protection rights; he also challenged the IJ’s continuous-presence finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board’s discretionary denial under §1229b(b)(1)(D) implicates AHF’s Equal Protection rights | Hernandez: denying cancellation based on "exceptional and extremely unusual hardship" framework discriminates against U.S.-citizen children of removable parents and violates equal protection | Government: discretionary hardship determination in removal proceedings does not implicate the constitutional rights of citizen children; court lacks jurisdiction to review factual hardship determinations | Held: No cognizable constitutional claim; citizen child’s rights not implicated; court lacks jurisdiction to review the discretionary factual hardship determination, so petition denied |
| Whether IJ erred in finding Hernandez failed to prove 10 years continuous physical presence | Hernandez: IJ’s finding was incorrect and makes him ineligible for relief | Government: IJ’s factual credibility finding was supported by the record; Board did not rely on this ground | Held: Court declined to reach this alternative issue because Board affirmed on hardship ground and did not rely on continuous-presence finding |
Key Cases Cited
- Ettienne v. Holder, 659 F.3d 513 (6th Cir. 2011) (distinguishing reviewability of factual hardship determinations in cancellation cases)
- Newton v. I.N.S., 736 F.2d 336 (6th Cir. 1984) (holding deportation of parents does not implicate citizen children's constitutional rights)
- Payne-Barahona v. Gonzales, 474 F.3d 1 (1st Cir. 2007) (citizen children's constitutional rights not triggered by parents' deportation)
- Oforji v. Ashcroft, 354 F.3d 609 (7th Cir. 2003) (same principle applied)
- Urbano de Malaluan v. I.N.S., 577 F.2d 589 (9th Cir. 1978) (similar holding regarding parental deportation and citizen children)
- Perdido v. I.N.S., 420 F.2d 1179 (5th Cir. 1969) (earlier precedent affirming that parents' deportation does not create a constitutional bar via children's rights)