Marco Nunez-Portillo v. Eric H. Holder, Jr.
763 F.3d 974
8th Cir.2014Background
- Nunez-Portillo, a native and citizen of Mexico, seeks cancellation of removal under 8 U.S.C. § 1229b(b).
- He entered the United States in 1998; DHS issued an NTA in 2009; he conceded removability in 2010 and applied for cancellation.
- At a 2011 hearing, he argued his three US-born children would face hardship if he were removed to Mexico.
- The IJ denied relief, finding lack of continuous physical presence and insufficient hardship to qualifying relatives.
- The BIA affirmed, concluding the IJ correctly found no requisite hardship; Nunez-Portillo petitioned for review.
- The court holds the BIA’s decision rests on discretionary hardship findings and that the constitutional claim fails for lack of a protected liberty interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the BIA err in evaluating hardship evidence? | Nunez-Portillo | Nunez-Portillo | No reversible error; weighing hardship factors is discretionary. |
| Did the BIA violate due process by not analyzing hardship factors meaningfully? | Nunez-Portillo | Nunez-Portillo | Constitutional claim fails; no protected liberty interest in discretionary relief. |
Key Cases Cited
- Meraz-Reyes v. Gonzales, 436 F.3d 842 (8th Cir. 2006) (discretionary nature of hardship determination; review limited)
- Gomez-Perez v. Holder, 569 F.3d 370 (8th Cir. 2009) (no jurisdiction to review weighing of factors)
- Guled v. Mukasey, 515 F.3d 872 (8th Cir. 2008) (cancellation of removal is discretionary; limited review)
- INS v. Yang, 519 U.S. 26 (U.S. 1996) (discretionary relief lacks a constitutionally protected liberty interest)
- Nativi-Gomez v. Ashcroft, 344 F.3d 805 (8th Cir. 2003) (no due process when no protected interest in discretionary relief)
- Etchu-Njang v. Gonzales, 403 F.3d 577 (8th Cir. 2005) (due process concerns with discretionary immigration relief)