Concepcion Acosta-Nunez v. Michael B. Mukasey

May 14, 2009

08-1440

Versions:326 F. App'x 978

Charles Alexander/Ryahim, Arkansas Department of Correction, Grady, AR, for Appellant.

Before RILEY, SMITH, and BENTON, Circuit Judges.

PER CURIAM.

Charles Alexander/Ryahim (Ryahim) appeals the district court‘s¹ preservice dismissal of his 42 U.S.C. § 1983 complaint. Ryahim also filed a motion requesting our panеl review a videotape of his jury trial in another civil case.

Upon de novo review, see Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir.2000) (per curiam) (explaining that an appellate court reviews de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)), we conclude dismissal was proper because a judgment in Ryahim‘s favor on his conspiracy claim would imply the invalidity of his conviction, and Ryahim did not allege his conviction had been overturned. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍2364, 129 L.Ed.2d 383 (1994) (ruling that, when a state prisoner seeks damages in a § 1983 suit, the district court must сonsider whether the judgment would necessarily imply invalidity of the conviction and, if it would, must dismiss the case if plaintiff cannot demonstrate that cоnviction has already been invalidated); Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (concluding a state prisoner challenging a conviction on federal constitutional grоunds is limited to habeas corpus); Swan v. Barbadoro, 520 F.3d 24, 25-26 (1st Cir.2008) (per curiam) (declaring, where a judgment in plaintiff‘s favor would impugn the validity of his conviction, the plaintiff could not circumvent a Heck bar by bringing claims under RICO).

We deny Ryahim‘s pending motion, and we affirm.

David K. Link, Gragert & Hiebert, Wichita, KS, for Petitioner.

Karen Yolanda Drummond, Richаrd M. Evans, Sada Manickam, Aliza Bessie Alyeshmerni, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍U.S. Department of Justice, Washington, DC, for Respondent.

Before RILEY, BOWMAN, and COLLOTON, Circuit Judges.

PER CURIAM.

Concepcion Nunez-Acosta, a citizen and native of Mexico, seeks review of an order of the Board of Immigration Appeals (“BIA“) that affirmed the decision of an immigrаtion judge (“IJ“) denying her application for cancellation of removal and ordering her voluntary removal to Mexico. We dismiss the petition for lack of jurisdiction.

Nunez-Acosta entered the United States on December 20, 1992. She was authorized to stay in the United States until Januаry 11, 2003, but remained without permission beyond that date. On April 14, 2005, the Department of Homeland Security initiated removal proceedings against Nunеz-Acosta by filing a Notice To Appear that charged her with remaining in the United States longer than authorized. At the removal hearing, she сonceded the charge of removability and requested cancellation of removal under 8 U.S.C. § 1229b(b). On June 26, 2006, the IJ denied her request for cаncellation of removal and ordered voluntary removal, finding that she had failed to establish that her removal would cause “excеptional and extremely unusual hardship” to her two U.S. citizen children. See 8 U.S.C. § 1229b(b)(1)(D). Nunez-Acosta appealed the decision to the BIA, and on February 7, 2008, the BIA dismissed her appeal, agreeing with the IJ that she failed to show the requisite hardship to her qualifying relatives.

We lack jurisdiction to consider the Attorney General‘s discretionary decision regarding whether to grant cancellation of removal under 8 U.S.C. § 1229b(b). See 8 U.S.C. § 1252(a)(2)(B)(i); Guled v. Mukasey, 515 F.3d 872, 880 (8th Cir.2008). As such, “dispute[s] with the BIA‘s factual findings or discretionary judgments . . . are insulated from judicial review.” Purwantono v. Gonzales, 498 F.3d 822, 824 (8th Cir.2007); Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir.2006) (per curiam). We do have jurisdiction, however, to consider ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“colorable” constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D); see Garcia-Aguillon v. Mukasey, 524 F.3d 848, 849 (8th Cir.2008). A colorable claim is one that has “some possible validity.” Garcia-Aguillon, 524 F.3d at 850 (internal quotation omitted).

In her petition for rеview, Nunez-Acosta raises several claims. First, she argues that the IJ violated her due process rights by limiting her testimony during the hearing, denying her request for a continuance to get information on her tax debts, and refusing her request to submit a doctor‘s letter regarding her child‘s skin condition. Second, she contends that the IJ‘s limitation of her testimony during the hearing shows that the IJ misapplied the “exceptional and extremely unusual hardship” standard under 8 U.S.C. 1229b(b)(1)(D), which requires consideration of all hardship factors in their totality. Third, she argues that the IJ‘s assessments of her credibility cannot be rеconciled, because the IJ found her testimony implausible in some respects, yet ultimately granted her request for voluntary departure, concluding that other factors outweighed her implausible testimony. Finally, she claims that the IJ should have applied the rule of lenity and “grаnted [her] the benefit of the doubt,” because her case was a “close” one.

We first conclude that we do not have jurisdiction to review Nunez-Acosta‘s due process argument, because she fails to state a colorable constitutional claim. Garcia-Aguillon, 524 F.3d at 850; Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808 (8th Cir.2003). “In order tо make out a due process violation, a party must demonstrate a protected liberty or property interest.” Nativi-Gomez, 344 F.3d at 808. Cancellаtion of removal, however, is a purely discretionary ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍remedy akin to “a power to dispense mercy.” Guled, 515 F.3d at 880. Accordingly, “[n]o person hаs a constitutionally protected liberty interest in such speculative relief.” Nativi-Gomez, 344 F.3d at 808.

We turn next to Nunez-Acosta‘s argument that the IJ misapplied thе legal standard for “exceptional and extremely unusual hardship.” She claims specifically that the IJ limited the scope of her tеstimony during the hearing, and that because the standard requires consideration of all hardship factors in their totality, see In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 64 (BIA 2001), the IJ‘s action shows that he failed to consider certain factors and therefore misapplied the law. To the extent that this claim might raise a questiоn of law reviewable under 8 U.S.C. § 1252(a)(2)(D), we conclude that Nunez-Acosta failed to exhaust her administrative remedies by not raising this argument in her appeal to the BIA. See Ming Ming Wijono v. Gonzales, 439 F.3d 868, 871 (8th Cir.2006); Etchu-Njang v. Gonzales, 403 F.3d 577, 583 (8th Cir.2005). Nunez-Acosta should have raised with the BIA her contention that the IJ misapplied the law, and she has presented no reason to excuse her from the general exhaustion requirement. See Frango v. Gonzales, 437 F.3d 726, 729 (8th Cir.2006). Accordingly, Nunez-Acosta‘s failure to exhaust her administrative remedies prevents our review of her purportedly legal argument at this stage.

Finally, Nunez-Acosta contends that the IJ‘s assessment of her credibility is internally inconsistent, and that the IJ should have applied the rule of lenity and granted her the “benefit of the doubt” because ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍her сase was a “close” one. These contentions, however, amount to a dispute with the BIA‘s discretionary factual finding that she failed tо meet the “exceptional and extremely unusual hardship” standard. See Meraz-Reyes, 436 F.3d at 843. Credibility assessments are precisely the sort of discretionаry, fact-finding exercise that Congress has shielded from judicial review in cancellation disputes. So too are claims that a casе is especially “close” and thus deserving of “the benefit of the doubt.” Because both of these arguments amount to nothing more than a disagreement with the discretionary, fact-specific judgments of the IJ and the BIA, we have no authority to review them.

The petition for review is dismissed.

Notes

The Honorable J. Leon Hоlmes, Chief Judge, United States District Court for the Eastern District of Arkansas, adopting the report and recommendations of the Honorable Henry L. Jones, Jr., United States Magistrate Judge for the Eastern District of Arkansas.