Ramirez-Perez v. Ashcroft

• Decision Date: 18 July 2003
• Docket Number: No. 02-71038.,02-71038.
• Citation: 336 F.3d 1001
• Parties: Rosalba RAMIREZ-PEREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.3d 1001

Rosalba RAMIREZ-PEREZ, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-71038.

United States Court of Appeals, Ninth Circuit.

Submitted March 6, 2003.^*

Filed July 18, 2003.

Walter Rafael Pineda, Law Offices of Walter Rafael Pineda, Redwood City, CA, for the petitioner.

Robert D. McCallum, Jr., Richard M. Evans, and Michael T. Dougherty, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A76-849-185.

Before T.G. NELSON, SILVERMAN, and McKEOWN, Circuit Judges.

OPINION

T.G. NELSON, Circuit Judge.

Rosalba Ramirez-Perez appeals the decision of the Board of Immigration Appeals ("BIA") denying her request for cancellation of removal. She asserts two due process challenges. First, she argues that the BIA's interpretation of "exceptional and extremely unusual hardship" violates her due process rights. Second, she argues that the BIA's use of its summary affirmance ("streamlining") procedures whereby a single BIA member decides an appeal without a separate opinion, violates her procedural due process rights.

We reject both claims. We have jurisdiction to review whether the BIA's interpretation of the hardship standard violates the Constitution. However, the BIA's interpretation is well within the broad bounds of the statutory language and does not violate due process. We further hold that the BIA's streamlining procedures do not violate due process. Thus, we deny the petition.

I. FACTUAL AND PROCEDURAL HISTORY

A citizen of Mexico, Ramirez-Perez came to the United States illegally. On April 9, 1998, the Immigration and Naturalization Service ("INS")¹ issued a notice to appear. Ramirez-Perez conceded deportability and requested cancellation of removal. The Immigration Judge ("IJ") held a hearing on May 16, 2001, to evaluate Ramirez-Perez's circumstances.²

Ramirez-Perez was born in Mexico in 1967. She testified that she came to the United States in 1987, living and working with her father and brother in Turlock, California. From 1987 until November 1995, she lived with her family at a house on Fulkerth Road in Turlock. She then moved away for one year, but returned from September 1996 until December 1998. Her cousin, Jose Isabel Perez, testified on her behalf. However, he was unable to substantiate some parts of Ramirez-Perez's account. Ramirez-Perez submitted a letter from her employer supporting her claim. The letter contained additional inconsistencies.

Ramirez-Perez has a child, who is a United States citizen and was born in 1999. The child's father is also a United States citizen. He sees the child frequently and pays child support. Although Ramirez-Perez testified that she would take her child to Mexico if deported, she also testified that the father said the child would remain with him.

Ramirez-Perez has siblings in the United States, but her parents and some of her siblings reside in Mexico. She and her son would be unable to live with her family in Mexico. According to Ramirez-Perez, her parents do not want to see her because she had her child out of wedlock.

The IJ found that Ramirez-Perez was not eligible for cancellation of removal relief.³ The IJ determined that Ramirez-Perez failed to establish the ten years' continuous presence statutory prerequisite. The IJ made no credibility finding as to Ramirez-Perez. However, the IJ gave little weight to the employer's letter because it used the name "Rosalva" instead of "Rosalba" Ramirez-Perez. Additionally the letter and Ramirez-Perez's testimony contained inconsistent dates for when her employment terminated. Finally, the IJ noted that the letter, while containing an original signature, appeared to be two documents pasted together. The IJ gave little weight to Ramirez-Perez's cousin's testimony because Ramirez-Perez testified that the Fulkerth Road house had three bedrooms, while he testified that it had two bedrooms.⁴

The IJ also concluded that Ramirez-Perez failed to establish the fourth prerequisite: "exceptional and extremely unusual hardship." The difficulties that Ramirez-Perez's child might face would not be materially different from those faced by any child who relocates with a parent at a young age. Additionally, the IJ concluded that Ramirez-Perez's child was in good health and possibly could stay with his father in the United States. Because Ramirez-Perez failed to establish the statutory prerequisites for cancellation of removal, the IJ denied relief.

Ramirez-Perez appealed to the BIA. She argued that the record showed that she met the ten years' continuous presence requirement because her evidence in favor was unrefuted. In addition, she contended that the IJ abused its discretion in the hardship finding by failing to consider all of the factors and failing to evaluate their cumulative effect.

On April 3, 2002, the BIA affirmed, without opinion, pursuant to 8 C.F.R. § 3.1(a)(7). Ramirez-Perez timely appealed.

II. THE BIA'S INTERPRETATION OF THE HARDSHIP STANDARD DOES NOT VIOLATE RAMIREZ-PEREZ'S DUE PROCESS RIGHTS

Ramirez-Perez contends that the BIA's interpretation of the hardship standard contradicts congressional intent to such a degree that it violates her due process rights. The Government replies that we lack jurisdiction to review whether the BIA's interpretation of the hardship standard violates due process. Thus, we must address our jurisdiction before reaching the merits of Ramirez-Perez's first claim.⁵

A. We retain jurisdiction to consider whether the BIA's interpretation of the hardship standard violates due process.

We retain jurisdiction to review constitutional claims, even when those claims address a discretionary decision. Although we lack jurisdiction to review whether an alien has established exceptional and extremely unusual hardship,⁶ we retain jurisdiction to consider whether the BIA's interpretation of the hardship standard violates due process. However, we emphasize that our only task is to ensure that the BIA's construction of the statutory terms does not stray beyond the wide range of possible interpretations encompassed by those terms.

Congress intended to make cancellation of removal relief available in some compelling circumstances.⁷ Thus, if the BIA interpreted "exceptional and extremely unusual hardship" to mean that no hardship showing would ever be sufficient, its interpretation would be so divorced from Congress's mandate as to violate the Constitution.⁸ The same conclusion would follow if the BIA interpreted "exceptional and extremely unusual hardship" at the other extreme — if, for example, the BIA interpreted the requirement to mean that an alien with a qualifying relative need only show that the relative would be sad if the BIA removed the alien.⁹ Once we determine that the BIA's interpretation is anywhere within the broad range authorized by the statutory language, our inquiry ends.¹⁰

The jurisdiction-stripping provisions of the immigration laws do not apply to Ramirez-Perez's constitutional claim. The one relevant provision, 8 U.S.C. § 1252(a)(2)(B)(i), prohibits us from exercising jurisdiction over any "judgment regarding the granting of" cancellation of removal relief. Under this provision, we lack jurisdiction to review discretionary decisions in the cancellation of removal context.¹¹ Thus, we may not review whether an alien established exceptional and extremely unusual hardship.¹²

The Government urges that § 1252(a)(2)(B)(i) also removes our jurisdiction over Ramirez-Perez's claim. We disagree. We read § 1252(a)(2)(B)(i)'s language narrowly, construing any ambiguities in its language in favor of Ramirez-Perez and in favor of judicial review.¹³ Whether the BIA's interpretation of the hardship standard violates due process is not a "judgment regarding the granting of" cancellation of removal relief.¹⁴ Rather, it presents a question of statutory construction. Thus, we conclude that § 1252(a)(2)(B)(i) does not preclude our review of Ramirez-Perez's constitutional claim.¹⁵

We retain jurisdiction to consider whether the BIA's interpretation of the hardship standard violates due process. Accordingly, we now turn to the merits of Ramirez-Perez's claim.

B. The BIA's interpretation of the hardship standard does not violate due process.

We reject Ramirez-Perez's claim for two reasons. First, Ramirez-Perez does not challenge before us the IJ's determination that she failed to show ten years' continuous presence. Thus, Ramirez-Perez cannot show that she was prejudiced by the BIA's application of its hardship standard to her case.¹⁶

Second, because the BIA's interpretation falls well within the broad range authorized by the statutory language, we must defer to it.¹⁷ The BIA has not exceeded its broad authority by defining "exceptional and extremely unusual hardship" narrowly.¹⁸ The BIA concluded that the "exceptional and extremely unusual hardship" standard is a higher standard than the "extreme hardship" standard under 8 U.S.C. § 1254(a)(1), the former provision governing this issue.¹⁹ As the BIA observed, in order to satisfy the hardship standard, Congress intended to require an alien to "`provide evidence of harm to his spouse, parent, or child substantially beyond that which ordinarily would be expected to result from the alien's deportation.'"²⁰ Thus, in evaluating hardship, the BIA considers "the ages, health, and circumstances of qualifying" relatives.²¹ However, although the BIA will consider the fact that the country of return has a lower standard of living (to the extent it would affect the qualifying relative), such a fact would normally "be insufficient in [itself] to support" a hardship determination.²²

This interpretation of the hardship standard comports with the statutory language and congressional intent. It does not violate due process. Even if it did, Ramirez-Perez was not prejudiced by the BIA's application of its hardship standard to her case....