Alberto Mendez-Garcia v. Loretta LynchAlberto Mendez-Garcia v. Loretta Lynch
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Lead Opinion
Concurrence by Judge WATFORD
OPINION
IKUTA, Circuit Judge:Alberto Mendez-Garcia’s application for cancellation of removal - claimed that his removal would result in hardship to his son, who was a United States citizen under 21 years of age at the time of the application. See
I
We begin by describing the legal background. The Immigration and Nationality Act (INA) gives the Attorney General discretion to cancel the removal of an alien who is inadmissible or deportable from the *659United States.
The BIA subsequently applied this rule in a decision involving an alien who lost his qualifying relative before his application was adjudicated. See Isidro-Zamorano, 25 I. & N. Dec. at 830-31. Isidro-Zamorano involved an alien whose appli*660cation for cancellation’ of removal identified his son, a United States citizen, as his qualifying relative. The son was under 21 at the time the alien filed the application, but had turned 21 by the time the application was adjudicated. Noting its longstanding rule that an application for relief from removal is a continuing application, the BIA concluded that the alien “did not have a qualifying relative when the Immigration Judge adjudicated the application and therefore could not establish eligibility for relief.” Id. at 831. Isidro-Zamorano recognized that the case presented “a difficult situation because [the alien] has lost his eligibility for relief’, during the pen-dency of his application, while the alien in Bautista Gomez had acquired qualifying relatives during this period, and therefore benefitted from the BIA’s interpretation of
In addition to prescribing eligibility requirements for inadmissible or deportable aliens seeking cancellation of removal, see
Even when an alien otherwise qualifies for relief and the annual number of grants has not been exhausted, “the ultimate decision whether to grant relief ... rests with the Attorney General.” Romero-Torres v. Ashcroft, 327 F.3d 887, 889 (9th Cir. 2003).
II
We next turn to the facts of these consolidated cases.
A
Alberto Mendez-Garcia is a citizen of Mexico who illegally entered the United States in 1990. Except for a brief absence in August 1991, he has resided continuously in thе United States since his entry. While in the United States, Mendez-Garcia had two children; the younger was born in California on March 12, 1992. The record establishes that Mendez-Garcia had a criminal record. In 1996, Mendez-Garcia was arrested following a domestic dispute with his wife, but was not charged. In May 2008, Mendez-Garcia was again arrested for a domestic dispute and pled nolo con-tendere to one count of domestic battery, see
As a result of his conviction, Mendez-Garcia came to the attention of the Department of Homeland Security, which served him with a notice to appear on January 13, 2009. At an initial hearing on January 29, 2009, Mendez-Garcia requested that the hearing be postponed; the Im*661migration Court set a new hearing date in February. At the February hearing, Mendez-Garcia requested another postponement; the court set a third hearing date in March, which was rescheduled to April. Before this hearing, Mendez-Garcia moved to change venue from Phoenix, Arizona, to San Francisco, California. The motion was granted, and a hearing date was set for August 6, 2009.
Mendez-Garcia moved for a continuance until September 2009, and a hearing date was eventually set for October 1, 2009. At the hearing, the IJ set a December 30, 2009, deadline to apply for cancellation of removal and scheduled a merits hearing for January 19, 2011. Mendez-Garcia timely filed his application on December 16, 2009, but the merits hearing date was reset twice for reasons not explained in the record, first to February 6, 2012, and then to March 1, 2013.
At the scheduled hearing date in March 2013, the IJ held removal proceedings in Mendez-Garcia’s case. After hearing testimony from Mendez-Garcia (who was represented by counsel) and reviewing thé record, the IJ informed the attorneys that she had all the evidence she needed to make a decision, but because the annual limit on grants of cancellation of removal, see
The IJ issued an oral decision in Mendez-Garcia’s case on October 23, 2013. She noted thаt Mendez-Garcia’s application was “a borderline case, with regard to both good moral character and exceptional and extremely unusual hardship,” reasoning that Mendez-Garcia’s 2008 domestic-violence conviction, to the extent it was not a per se disqualifying conviction under
Mendez-Garcia appealed to the BIA. The BIA dismissed his appeal on June 5, 2015, holding that the IJ properly applied Isidro-Zamorano in ruling that Mendez-Garcia’s son no longer met the statutory definition of “child” because he had turned 21 before the IJ adjudicated his application. The BIA acknowledged that the IJ had closed the record on March 1, 2013 (before Mendez-Garcia’s younger U.S. citizen child had turned 21), but concluded that this distinction from Isidro-Zamorano was not meaningful. Mendez-Garcia timely petitioned for review.
B
Mario Rivera-Baltazar is a citizen of Mexico who illegally entered the United States in 1986 and has resided in the United States continuously since then. While *662residing in the United States, his son was born on August 14, 1990, in California. In March 1996, Rivera-Baltazar was convicted of willful infliction of cоrporal injury upon a spouse or cohabitant. See
Rivera-Baltazar was served with a notice to appear on January 7, 2005. On February 16, 2005, he filed a motion to change venue from Phoenix, Arizona, to San Diego, California, conceded removability, and stated his intention to seek cancellation of removal. After transferring venue, the IJ held an initial hearing on June 7, 2005. At that hearing, Rivera-Baltazar’s counsel indicated that he was not yet prepared to go forward. The IJ set a second hearing for October 5, 2005.
At the October hearing, the government argued that Rivera-Baltazar was not eligid ble for cancellation of removal because his prior conviction rendered him ineligible. In support of this argument, the government introduced a criminal history transcript from the California Department of Justice showing Rivera-Baltazar’s prior conviction. Rivera-Baltazar asked for a continuance to prepare a resppnse to that exhibit. At a third hearing, on December 13, 2005, the IJ overruled Rivera-Baltazar’s objection to the government’s exhibit, found him ineligible for cancellation of removal, and granted voluntary departure.
Riverar-Baltazar appealed to the BIA. After granting Riverar-Baltazar’s request for an extension of the briefing schedule, the BIA rejected his appeal on August 15, 2006. Rivera-Baltazar moved the BIA to reopen the case on November 2, 2006, but the BIA denied the motion on January 11, 2007. in part because the motion was untimely. Rivera-Baltazar petitioned for review of both the BIA’s merits decision and its denial of his subsequent motion to reopen.
While his petitions for review were pending before us, Rivera-Baltаzar moved to extend his time to file his opening brief. We granted the extension and consolidated his petitions. Shortly thereafter, the BIA issued a precedential decision holding that convictions entered prior to September 30, 1996, did not preclude eligibility for cancellation of removal, see Matter of Gonzalez-Silva, 24 I. & N. Dec. 218 (BIA 2007). Because Rivera-Baltazar had been convicted of infliction of corporal injury in March 1996, the government moved to remand the case. We granted the unopposed motion and remanded the case to the BIA on December 6, 2007.
There the case languished until June 7, 2010, when the government filed a request for decision with the BIA. After receiving this request, the BIA set a briefing schedule, and ordered the parties to make their submissions by October 21, 2010. The government moved to remand at that time, but Rivera-Baltazar sought and received an extension until November 11, 2010. Following the government’s lead, Rivera-Bal-tazar filed an unopposed motion to remand the case to the IJ on November 4, 2010.
On remand from the BIA, the IJ held a hearing on May 26, 2011, and at that hearing set an application deadline of November 22, 2011, and the next hearing date for May 16, 2012. Rivera-Baltazar raised no objection to this schedule at the hearing, and subsequently requested an extension of the application deadline to December 22, 2011. This extension was granted, and Rivera-Baltazar timely filed his application for cancellation of removal on December 22, 2011.
On August 14, 2011, while Rivera-Balta-zar’s case was pending, his son turned 21. On May 16, 2012, the IJ issued its decision on Rivera-Baltazar’s application, holding that because Rivera-Baltazar’s son was no longer a child for .purposes of *663
Rivera-Baltazar appealed to the BIA, which dismissed his appeal on August 13, 2013. As in Mendez-Garcia’s case, the BIA held that the IJ properly applied Isidro-Zamorano in ruling that Rivera-Baltazar’s son no longer met the statutory definition of “child” at the time of the IJ’s decision. Rivera-Baltazar timely petitioned for review.
III
We* start with the petitioners’ argument that the IJ and BIA erred in holding they were not eligible for cancellation of removal under
A
In addressing the petitioners’ argument that the BIA’s interpretation of
At step two, we consider whether the BIA’s interpretation is “based on a permissible construction of the statute.” Valenzuelo, Gallardo, 818 F.3d at 815. At this step, we conclude that the BIA could reasonably determine that
In opposing this conclusion, Mendez-Garcia and Rivera-Baltazar contend that the BIA’s interpretation is not reasonable because it is inconsistent with
Because the BIA offered a reasonable interpretation of
B
Mendez-Garcia and Rivera-Bal-tazar also argue that the BIA’s interpretation of
C
Finally, Mendez-Garcia and Rivera-Baltazar argue that the BIA erred in interprеting the word “child” in
IV
Mendez-Garcia and Rivera-Bal-tazar next argue that the decisionmaking processes in their cases violated their due process rights. “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). “A full and fair hearing is one of the due process rights afforded to aliens in deportation proceedings.” Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir. 2011). An alien’s right to procedural due process is violated “only if [1] the proceeding was ‘so fundamentally unfair that the alien was prevented from reasonably presenting his case,’ ” and [2] •the alien proves that “the alleged violation prejudiced his or her interests.” Id. (quoting Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006)). While aliens are entitled to a procedurally fair hearing, “aliens have no fundamental right to discretionary relief from removal for purposes of due process and equal protection” because such relief is “a privilege created by Congress.” Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004). Denial of such discretionary relief “cannot violate a substantive interest protected by the Due Process clause.” Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003). Because “[c]ancellation of removal is a form of discretionary relief which does not give rise to a ‘substantive interest protected by the Due Process Clause,’ ” Hyuk Joon Lim v. Holder, 710 F.3d 1074, 1076 (9th Cir. 2013) (quoting Munoz, 339 F.3d at 954), its denial likewise does not deprive an applicant of a constitutionally protected liberty or property interest.
The petitioners argue that their due process rights were violated because the application of Isidro-Zamorano coupled with the failure of the agency to adjudicate their cancellation of removal applications before their sons became 21 was procedurally unfair and deprived them of a substantive interest, their “settled expectations” in *666receiving relief.- We consider their arguments in turn.
A
The petitioners first argue that the proceedings were proeedurally unfair because they were deprived of the opportunity to have their applications for cancellation of removal adjudicated at a time when they would have had a meaningful opportunity for relief. Mendez-Garcia argues that because he had qualifying relatives at the time he filed his application for cancellation of removal in 2009, the fact that his application was not adjudicated until October 2013 “prevented [him] from reasonably’ presenting his relief application.” Similarly, Rivera-Baltazar argues that his son had five years of eligibility as a qualifying relative remaining at the time he applied‘for cancellation of removal, and that the lack of “an expedited review” in 2011 on remand from the BIA was “fundamentally unfair” and amounted to an “inequitable process.”
We disagree. First, procedural delays, such as routine processing delays, do not deprive aliens of a substantive liberty or property interest unless the aliens have a “legitimate claim of entitlement” to have their applications adjudicated within a specified time. Ruiz-Diaz v. United States, 703 F.3d 483, 487 (9th Cir. 2012) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). In Ruiz-Diaz, we considered a regulation that barred a category of aliens, including religious workers, from filing an application for adjustment of status under
*667Nor did the agency’s delays violate Mendez-Garcia’s and Rivera-Baltazar’s procedural due process rights by preventing them from reasonably presenting their cases at a meaningful time. Cf. Singh v. Reno, 182 F.3d 504 (7th Cir. 1999). In Singh, the Immigration and Naturalization Service (INS) ‘Continued to drag its feet” in setting hearing dates and repeatedly сanceled hearing dates over a. four-year period, despite the alien’s diligent efforts to have his hearing recalendared. Id. at 507. Only after Congress enacted a statute that retroactively eliminated any possibility of relief for that alien did the INS set. a hearing date and summarily conclude that he was deportable. Id. at 510. While acknowledging that an alien generally “has no substantive right to have a claim heard at a particular time,” the Seventh Circuit held that under “the very unusual circumstance” when the alien, rather than the agency, pressed for a speedier resolution of his status, the alien had sufficiently raised a claim that his due process rights had been violated to allow him the “exceptional procedure” of “direct review of constitutional claims in the court of appeals.” Id.
Even аssuming that extraordinary delays caused by the agency could give rise to a constitutional claim, there were no such “very unusual circumstancefc]” in these cases. Neither Mendez-Garcia nor Rivera-Baltazar contend that the delays in their cases result from anything other than “routine processing times,” Ruiz-Diaz, 703 F.3d at 487, and neither took action to increase the likelihood that their applications would be adjudicated before their sons turned 21, cf. Singh, 182 F.3d at 511 (finding “of crucial significance” that “it was [the alien] who pressed to have the matter resolved”). Indeed, Mendez-Garcia sought to postpone the adjudication of his application three times before his younger U.S. citizen child turned 21. Even when the IJ brought to Mendez-Garcia’s attention the imminence of his child’s twenty-first birthday and offered him the opportunity to submit supplemental briefing on the issue, he did not do so. Similarly, Rivera-Baltazar did not act when we remanded his case to the BIA in-2007; the BIA ultimately took action only after the government (not Rivera-Baltazar) filed a request for decision. Rather than seeking to expedite the adjudication of his application, Rivera-Baltazar sought to postpone it four times before his child turned 21. We conclude that the decisionmaking process here did not violate Mendez-Garcia’s and Rivera-Baltazar’s due‘process rights.
B
Mendez-Garcia and Rivera-Baltazar also argue that their due process rights were violated because they had “settled expectations” that they could apply for and receive cancellation of removal, and these settled expectations were upset by the change in the status of their qualifying relativеs. In making this argument, Mendez-Garcia and Rivera-Baltazar analogize to INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which considered the retroactive effect of section 304 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. (IIRI-RA), Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-587-3009-597.
In order to analyze the strength of this analogy, we briefly summarize the relevant facts and conclusion in St. Cyr. As the Supreme Court explained, section 304 eliminated
As this summary makes clear, St. Cyr is not applicable here. Landgraf emphasized that “[t]he Due Process Clause ... proteсts the interests in fair notice and repose that may be compromised by retroactive legislation,” 511 U.S. at 266, 114 S.Ct. 1483, and St. Cyr accordingly discusses “settled expectations” as they related to retroactive application of IIRIRA, see 533 U.S. at 323-24, 121 S.Ct. 2271, Mendez-Garcia and Rivera-Baltazar do not point to any legislative change; there was no amendment to the cancellation of removal statute or other legislation that could raise due process concerns under Landgraf and St. Cyr. Whereas St. Cyr indicated that it is sometimes impermissible to apply new law to “transactions or considerations already past,” id. at 321, 121 S.Ct. 2271, nothing in St. Cyr suggests that it is impermissible to apply unchanged law to a current factual situation as it has changed or developed over time. Further, St. Cyr made clear that “settled expectations” result only when an alien gives up “valuable legal rights.” Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 602 (9th Cir. 2002) (quoting St. Cyr, 533 U.S. at 321, 121 S.Ct. 2271). Mеndez-Garcia and Rivera-Baltazar gave up no such legal rights in applying for cancellation of removal. Cf. id. (finding that alien who had turned herself into the INS “gave up only her ability to continue living illegally and undetected in the United States,” and not any valuable legal rights). Nor can Mendez-Garcia and Rivera-Baltazar claim they lacked notice that their children would grow up. Accordingly, we reject Mendez-Garcia and Rivera-Baltazar‘s claim that they have a due process right to have their applications adjudicated in light of historical facts.
C
Mendez-Garcia raises one additional argument that his due process rights were violated by the proceedings.4 Accord*669ing to Mendez-Garcia, the application of the statutory cap on grants of cancellation of removal,
To the extent Mendez-Garcia is challenging Congress’s authority to enact a statutory cap on relief from deportation, we reject the argument. “ ‘[0]ver no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens.” Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977). “Congress has plenary power to regulate immigration and the conditions on which aliens remain in the United States.” Korab v. Fink, 797 F.3d 572, 574 (9th Cir. 2014). When Congress acts in-the immigration context, the resulting legislation need “meet only ‘the (unexacting) standard of rationally advancing some legitimate governmental purpose.’ ” Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 788 (9th Cir. 2014) (en banc) (quoting Flores, 507 U.S. at 306, 113 S.Ct. 1439). A statutory cap on grants of cancellation of removal is rational; Congress could have concluded, for example, that immigration benefits should generally be reserved for aliens who are not otherwise removable. Moreover, limiting the number of otherwise-removable aliens who are permitted to remain in the United States is a legitimate governmental purpose, one that the statutory cap rationally advances.
Nor did the application of the cap to Mendez-Garcia violate his due pro-cess rights. In order to assert a due process challenge to such a condition of relief, an alien must establish a “qualifying liberty interest of which he was deprived.” Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1165 (9th Cir. 2002) (citing Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). Mendez-Garcia has no such liberty interest. Discretionary immigration relief gives rise to no “substantive interest proteсted by the Due Process Clause.” Hyuk Joon Lim, 710 F.3d at 1076. Nor did Congress provide aliens with such an interest. When cancellation of removal was established as a form of relief under IIRIRA, Congress circumscribed its availability not only by specifying the four requirements that an alien must satisfy but also by including the statutory cap. See IIRIRA § 304(a), Pub. L. No. 104-208, 110 Stat. at 3009-594, 3009-596. Thus, “the very liberty interest [Mendez-Garcia] asserts to have been taken away” by the statutory cap, his ability to receive cancellation of removal, “was granted by [the] same statute” that instituted the cap— IIRIRA section 304. Hernandez-Mezquita, 293 F.3d at 1165. Though the statutory cap may have deprived Mendez-Garcia of the ability to receive cancellation of removal relief, the right to receive that relief unrestricted by the cap was “a right he never had.” Id. This due process challenge, too, fails.
PETITIONS DENIED.
Notes
. These petitions are consolidated for purposes of disposition.
.
(b) Cancellation of removal and, adjustment of status for certain nonpermanent residents
(1) In general The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—
(A)has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United Stаtes or an alien lawfully admitted for permanent residence.
. Although
.. In a letter submitted the day before oral argument under
Concurrence Opinion
concurring:
I join the court’s opinion because it correctly resolves the two cases before us. I write separately to emphasize that, for me at least, the dispositive factor in denying *670relief on the petitioners’ procedural due process claim is their lack of diligence in pressing for expedited review.
The petitiohers’ due process claim arises from delays in the processing of their applications for cancellation of removal based on hardship to their U.S. citizen children. See
As the court acknowledges, an arbitrary and unjustified delay in processing an application for cancellation of removal can serve as the basis for a successful due process claim, provided the applicant has been diligent throughout in urging the agency to reach a decision before his child turns 21. The petitioners before us cannot establish a violation of their due process rights because they were not diligent in pressing for expedited review of their applications. Had they been diligent in doing so, however, they might well have been entitled to prevail.
Take Mario Rivera-Baltazar’s case. The immigration judge who initially ruled on his application denied it on an erroneous legal ground, and our court subsequently remanded the case to the BIA for further proceedings. At that point, Rivera-Balta-zar’s U.S. citizen son was 17 years old, so there was plenty óf time left for his application to be considered. Because the immigration judge did not reach the merits of Rivera-Baltаzar’s application during the initial round of proceedings, his case necessarily had to be remanded back to the immigration judge. Yet the BIA sat on his case for three years and did nothing. Unlike my colleagues, I do not think we can characterize that as a routine processing delay (particularly for such a ministerial task), and as far as the record discloses there was absolutely no justification for it.
The problem for Rivera-Baltazar is that he did nothing during that entire three-year period of delay to try to expedite review of his application. As the court notes, it was the government’s action after nearly three years of unexplained delay that finally prompted the BIA to do what it should have done right away: remand the case back to the immigration judge. Had Rivera-Baltazar been diligent in urging the BIA to remand his case fоrthwith, and had he lost his eligibility for cancellation of removal due to the unjustified delay, what more could be required to assert a meritorious due process claim?
The protections of the Due Process Clause are vital in cases like these because there is enormous potential for arbitrariness and hence unfairness under the rule adopted by the BIA. Under that rule, an applicant’s eligibility for relief can be foreclosed by administrative delays that are wholly outside the applicant’s control and that have nothing to do with the merits of the application. The potential for arbitrariness is heightened in the cancellation of removal context because a person eligible for such relief may not affirmatively apply for it—she may request it only after the government decides to initiatе removal proceedings by serving her with a notice to appear. So from the outset the applicant cannot control how old her U.S. citizen *671child may be at the time’ her application is filed, and she of course has no ability to stop the clock from ticking as her child approaches the age of 21. When an applicant does everything in her power to ensure that the agency can adjudicate her application for cancellation of removal while her U.S. citizen child is still under 21, the agency cannot simply allow the application to languish for years without justification .such that the child ages out before a decision can be rendered.
Due process guarantees “a full and fair hearing” in immigration proceedings. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). A hearing for relief surely cannot be considered full and fair if the adjudicator arbitrarily and unjustifiably withholds a decision until a time when the relief is no longer available. See Singh v. Reno, 182 F.3d 504, 510 (7th Cir. 1999).