Alfredo MONTANEZ-GONZALEZ, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
No. 13-4276.
United States Court of Appeals, Sixth Circuit.
March 12, 2015.
720
BEFORE: GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge.
JANE B. STRANCH, Circuit Judge.
Alfredo Montanez-Gonzalez, a native and citizen of Mexico, seeks review of a decision of the Board of Immigration Appeals (BIA), affirming the decision of the Immigration Judge (IJ) denying his application for cancellation of removal. The IJ denied Montanez-Gonzalez‘s application on the grounds that he had established neither his continuous presence in this country nor the degree of hardship to his citizen relatives required for cancellation of removal, and the BIA affirmed on the hardship ground. Montanеz-Gonzalez contends that the BIA failed to follow its own precedent and failed to correct constitutional errors in the IJ‘s procedure, along with other arguments over which we lack jurisdiction. Because the BIA did, in fact, follow its оwn precedent and Montanez-Gonzalez cannot show constitutional injury, we deny the petition for review on those issues and dismiss the petition with regard to those issues over which we lack jurisdiction.
I. BACKGROUND
Montanez-Gonzalez was born in a small town in Zacatecas, Mexico. He entered the United States without inspection in 1997 and has primarily lived here since. He returned to Mexico in 2001 to marry his wife and brought her back to the United States. Montanez-Gonzalez and his wife lack lawful stаtus, but they have three daughters, ages five, nine, and thirteen, who were born in this country and therefore have United States citizenship. The family lived in Michigan near his wife‘s father, stepmother, brother, and the brother‘s family. The Montanez-Gonzalez childrеn are close with their extended family, who live nearby, and they have never been to Mexico. The eldest daughter excels in school and testified that she wants to be a doctor when she grows up. Montanez-Gonzalez‘s parents rеmain in Zacatecas, as do members of his wife‘s extended family.
Montanez-Gonzalez was placed in removal proceedings in early 2009 and applied for cancellation of removal, pursuant to
The IJ denied Montanez-Gonzalez‘s application for cancellation of removal on two grounds—first, that he had failed to estab-
II. DISCUSSION
Congrеss created cancellation of removal as a discretionary form of relief in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, P.L. 104-208, 110 Stat. 3001, replacing an earlier form of relief called suspension of deportation. To be eligible for cancellation of removal, the alien must satisfy four requirements: (1) continuous physical presence for at least ten years; (2) good moral character; (3) not having been convicted of certain crimes; and (4) that the removal would result in “exceptional and extremely unusual hardship to the alien‘s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.”
The Immigration and Nationality Act starkly limits our jurisdiction to review a decision not to grant cancellation of removal: “[N]o court shall have jurisdiction to review—any judgment regarding the granting of relief under [8 U.S.C. §] 1229b.”
Montanez-Gonzalez‘s first claim is that the BIA and IJ failed to follow the legal standards or rules of decision articulated in the BIA‘s own binding precedent in determining that his daughters would not experience “exceptional and extremely unusual hardship” as a result of his removal. See
In Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), the first case considering cancellation of removal, the BIA developed the standard for identifying “exceptional and extremely unusuаl hardship.” The Board first noted that Congress had chosen a higher hardship standard than the earlier “extreme hardship” standard, and discussed interpretations of “exceptional and extremely unusual hardship” under prior versions of the Act. 23 I. & N. Dec. at 59-60. Finding thе suspension of deportation cases not determinative, the BIA focused on the 1996 statutory language and legislative history. Id. at 62. The BIA determined that “exceptional and extremely unusual hardship” must be “‘substantially’ beyond the ordi-
Montanez-Gonzalez contends that the BIA and IJ did not follow Monreal because they employed an improper balancing approach to the hardship determination and ignored evidence of violence in Zacatecas, Mexico that would impose hardship on the citizen children. He argues that the IJ‘s use of the introductory phrase “on balance” is evidence of balancing the hardship factors, rather than considering them in the aggregate. The BIA properly rejected this argument. The IJ‘s decision does not show that he identified significant hardships on certain factors but found those hardships outweighed by other factors. Instead, the IJ properly examined the consequences of removal for the citizen children and found that the hardship presented did not reach the level required under the statute.
Montanez-Gonzalez next contends that the IJ and BIA imposed an inappropriately high standard for adverse country conditions. The IJ determined that the evidence of risk of violence was too general to show that Montanez-Gonzalez and his family “would be moving directly into what would be the equivalent of a warzone.” Though inartfully stated, the BIA affirmed, restating the standard to hold that Montanez-Gonzalez “has not sufficiently shown that his children would be left unprotected from harm or exposed to violence in Mexico.” Montanez-Gonzalez did present general evidence about gang violence in his home region in Mexico, as well as more specific testimony about the gruesome murder of a cousin and threats to his mentally ill brother-in-law. There is no reason to believe that the IJ failed to consider this evidence. And we lack jurisdiction to second-guess the BIA‘s judgment call about whether the evidence was sufficient to show that removal would place Montanez-Gonzalez‘s three citizen daughters in danger.
On a different tack, Montanez-Gonzalez contends that he was deprived of his due process right to a fair hearing because the IJ did not consider evidence about potential medical hardshiр for his middle daughter. “Fifth Amendment guarantees of due process extend to aliens in deportation proceedings, entitling them to a full and fair hearing.” Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001). The government contends that Montanez-Gomez had no constitutionally protected interest in the discretionary relief of cancellation. “While it is true that the failure to be granted discretionary relief does not amount to a deprivation of liberty interest, we have also held that the Fifth Amendment‘s Due Process Clausе mandates that removal hearings be fundamentally fair and that a petitioner is entitled to a full and fair hearing.” Abdallahi v. Holder, 690 F.3d 467, 472-73 (6th Cir. 2012) (internal quotation marks, citations, and alterations removed); see also Gordillo v. Holder, 640 F.3d 700 (6th Cir. 2011) (considering an ineffective-assistance claim, grounded in constitutional due process, arising from a denial of discretionary NACARA relief). The discretionary na-
For Montanez-Gonzalez to succeed on his constitutional claim, he must show that “there was a defect in the removal proceeding, and if so, [that he] was prejudiced by the defect.” Id. at 472. “A showing of prejudice is essеntially a demonstration that the alleged violation affected the outcome of the proceedings.” Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005). Montanez-Gonzalez cannot show that he was prejudiced. After the close of evidence, he orally moved tо introduce a letter from his daughter‘s pediatrician‘s office noting that she had an elevated lead level and an appointment with an orthopedic specialist. Even if the IJ‘s refusal to allow the letter into evidence wаs a constitutional defect, he would not be able to establish prejudice. Although the IJ noted that the letter was “preliminary [and] speculative” and would therefore not have affected the hardship determination, he specifically noted the letter and the claim of elevated lead levels in the course of announcing his oral decision. Even if Montanez-Gonzalez has shown a defect—a question we do not decide—exclusion of the letter did nоt affect the outcome. The due process argument therefore lacks merit.
Finally, Montanez-Gonzalez raises claims that challenge the Monreal approach to “exceptional and extremely unusual hardship” on statutory and constitutional grounds. He also contends that his due proсess rights were violated because the IJ did not consider the effect of a head wound on his economic prospects after removal. Because he did not raise these claims before the BIA, we lack jurisdiction to сonsider them. See Ramani, 378 F.3d at 560.
For all the reasons set forth above, we DISMISS the petition in part for lack of jurisdiction and DENY the remainder of the petition.
JANE B. STRANCH
CIRCUIT JUDGE