Case Information
*1 Before LUCERO , TYMKOVICH , and HOLMES , Circuit Judges.
Abеl Ocampo-Guaderrama petitions for judicial review of an order of the Board of Immigration Appeals (BIA) affirming the immigration judge’s (IJ) denial of his application for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Exercising our jurisdiction under 8 U.S.C. § 1252, we deny the petition.
I. Background
Petitioner, a native and citizen of Mexico, entered the United States illegally in 1996. He has three children, all of whom are United States citizens. In 2008, the Department of Homeland Security initiated removal рroceedings against him under 8 U.S.C. § 1182(a)(6)(A)(i), alleging that he was present without being admitted or paroled. Petitioner appeared before an IJ and conceded removability, but requested cancellation of removal under § 1229b, which provides for discretionary cancellation of removal when an alien demonstrates that: (1) he has been physically and continuously present in the United States in the ten years preceding his application; (2) he has bеen a person of good moral character during such period; (3) he has not been convicted of certain criminal offenses; and (4) “removal would result in exceptional and extremely unusual hardship to the alien’s spоuse, parent, or child, who is a citizen of the United States.” 8 U.S.C. § 1229b(b)(1).
In 2010, the IJ held a hearing on the matter during which only petitioner testified in support of his application. The decisive issues before the IJ were whether petitioner satisfied the second and fourth requirements. Petitioner contended that his removal would result in exceptional and extremely unusual hardship to his children. He testified that his children did not want to go to Mexico. More particularly, he testified that his daughter, who was five years old at the time of the hearing, has difficulties with speech and that he was advised by the child’s teacher that she should be evaluated by a physician. He claimed that if his daughter were to return with him *3 to Mexico, that shе would not learn as much as she could in the United States and that there was no treatment in his town in Mexico for children with speech problems.
Petitioner also testified concerning certain criminal convictions, including some traffiс offenses and a conviction for prostitution. He sought to discredit the government’s position that his prostitution conviction constituted a crime of moral turpitude disqualifying him for cancellation of removal. He claimed that hе did not hire anyone for services and was induced to plead guilty with the threat of being turned in to immigration officials for deportation.
The IJ denied the application finding that petitioner had failed to establish “exceptional and extremely unusual hardship” to his qualifying relatives. 8 U.S.C. § 1229b(b)(1)(D). Although the IJ had previously advised petitioner that corroborative evidence concerning his childrens’ hardship was expected, and petitioner had fifteen months to obtain such evidence, he did not proffer any evidence from a medical professional or school educator establishing that his daughter had a speech problem or was receiving medical treatment for any speech difficulties. The IJ further found that petitioner failed to establish he possessed good moral character, because petitioner pled guilty to the crime of prostitution and did not provide evidence concerning thе underlying facts of the offense.
Petitioner appealed the IJ’s decision to the BIA, which, after conducting a de novo review, affirmed the IJ’s conclusion that petitioner had not established exceptional or extremеly unusual hardship. In so holding, the BIA concluded that *4 petitioner had not demonstrated hardship that is “substantially different from or beyond that normally encountered in the course of removal.” Admin. R. at 3-4. The BIA further determined that it need not address pеtitioner’s argument regarding whether he had met his burden of proof establishing the requisite good moral character for cancellation of removal.
Petitioner now petitions this court for review, claiming that in assessing the requisite еxceptional and extremely unusual hardship, the BIA applied a legal standard that has not been defined and further challenging the IJ’s finding that petitioner lacked good moral character. Respondent asserts that 8 U.S.C.
§ 1252(a)(2)(B)(i) deрrives this court of jurisdiction to review the agency’s determination.
II. Jurisdiction
As a threshold matter, we must first determine whether we have jurisdiction to
review the issues raised by petitioner.
Arambula-Medina v. Holder
,
Under § 1252(a)(2)(D), we retain jurisdiction, however, to reviеw
“constitutional claims” or “questions of law” involving statutory construction.
Diallo
v. Gonzales
,
Petitioner claims that the BIA erred because it applied a legal standard for
determining “exceptional and extremely unusual hardship” that has not been defined.
Respondent asserts thаt petitioner is simply trying to escape the jurisdictional bar and
has not presented a “substantial legal issue.” Resp. Br. at 9. We disagree and find
that petitioner’s challenge to the legal standard used by the BIA raises a colorable
question of law that is within our jurisdiction to review. Petitioner is, in effect,
attacking the BIA’s standard as vague which necessarily involves statutory
construction, and the claim is not wholly insubstantial.
See, e.g
.,
Pareja v. Att’y
*6
Gen
.,
III. Discussion
We review petitioner’s question of law de novo.
Lorenzo v. Mukasey
,
Petitioner’s claim of legal error stems from the BIA’s reliance on its decision
in
In re Monreal-Aguinaga
, 23 I. & N. Dec. 56 (BIA 2001). In that decision the BIA
interpreted the meaning of “exceptional and extremely unusual hardship” under
§ 1229b(b)(1)(D). In doing so, it examined the relevant statutory provision in much
detail, considering the structure and legislative history to determine what an applicant
for cancellation of removal has to demonstrate.
See In re Monreal-Aguinaga
,
23 I. & N. Dec. at 58-60;
see also Pareja
,
In
In re Monreal-Aguinaga
, the BIA observed that with passage of thе Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, 110 Stat. 3009 (1996), the new standard of “exceptional and extremely
unusual” hardship for cancellation of removal is a “higher” and “more restrictive”
*7
standard than the “extreme hardship” standard previously applicable in suspension of
deportation cases. 23 I. & N. Dec. at 59, 62;
see also Pareja
,
Petitioner’s attack on the BIA’s use of the hardship standard set forth in
In re
Monreal-Aguinaga
,
i.e
., hardship that is “substantially beyond” that which would
normally be expected, is very narrow. He argues only that it “has not been defined.”
Pet’r Br. at 13. But other than providing summaries of other BIA decisions, he does
not providе any analysis or cite any authority to support his apparent argument that
the standard in
In re Monreal-Aguinaga
may not be given legal effect
because
it has
not been further defined.
See Phillips v. Calhoun
,
On this basis, we cannot find error simply in the BIA’s use of a standard that it has not further defined. And we note that there is nothing improper with the BIA using fаctors set forth in In re Monreal-Aguinaga to further define “substantially beyond” ordinary hardship on a case-by-case basis.
But even if there was some legal support for petitioner’s claim, we must
nevertheless give
Chevron
deference to the BIA’s interpretatiоn of “exceptional and
extremely unusual hardship” if its construction is reasonable.
See Chevron, U.S.A.,
Inc. v. Natural Res. Defense Council, Inc
.,
In a well-reasoned analysis, the Third Circuit concluded that the BIA’s
interpretation of “exceptional and extremely unusual hardship” as set forth in
In re
Monreal-Aguinaga
was entitled deference because it was a “permissible construction
of the statute.”
Pareja
,
Furthermore, to thе extent that the remainder of petitioner’s argument asks us
to re-evaluate the agency’s hardship determination by claiming that the IJ did not
consider all the evidence, this we may not do. We have no jurisdiction to review
arguments that “the evidence was incorrectly weighed, was insufficiently considered,
or supports a different outcome.”
Alzainati v. Holder
,
Turning to petitioner’s challenge to the IJ’s determination that he failed to
establish good moral character for cancellation of removal under § 1229b(b)(1)(B),
he argues that whether his conviction for prostitution presents a statutory bar to his
eligibility for cancellation of removal is a question of law within our jurisdiction to
rеview. But we may not address petitioner’s argument as this issue was not reviewed
or relied on by the BIA.
See Kechkar
,
The petition for review is DENIED.
Entered for the Court Jerome A. Holmes Circuit Judge
Notes
[*] After examining thе briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.