Arteaga–De Alvarez v. Holder

• Decision Date: 26 December 2012
• Docket Number: No. 08–70941.,08–70941.
• Citation: 704 F.3d 730
• Parties: Laura Sonia ARTEAGA–DE ALVAREZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

704 F.3d 730

Laura Sonia ARTEAGA–DE ALVAREZ, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08–70941.

United States Court of Appeals,

Ninth Circuit.

Submitted Aug. 9, 2012.^*

Filed Dec. 26, 2012.

Joseph Mbacho, El Centro, California, for Petitioner.

Tony West, Assistant Attorney General, Civil Division; David M. McConnell, Deputy Director; Stacy S. Paddack, Senior Litigation Counsel; and Elizabeth A. McAdams, Law Clerk, Office of Immigration Litigation, Civil Division, Department of Justice; Washington, D.C., for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A200–050–940.

Before: STEPHEN REINHARDT, BARRY G. SILVERMAN, and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge SILVERMAN.

OPINION

REINHARDT, Circuit Judge:

I.

Petitioner Laura Arteaga de Alvarez (“Arteaga”) is an undocumented Mexican national. She is married to a legal permanent resident, who obtained that status after being granted cancellation of removal in 2003, shortly before the couple married. They have three children who are all United States citizens. In 2005, after voluntarily turning herself in to immigration authorities, Arteaga applied for cancellation of removal. Her application was denied in 2007 by an immigration judge who determined that she had not demonstrated the requisite exceptional and extremely unusual hardship to a qualifying relative. The BIA affirmed, and included in its reasoning a statement that the fact that Arteaga had alternative means to immigrate, i.e. a spousal petition filed by her husband, necessarily undercut her ability to demonstrate that her children would suffer exceptional and extremely unusual hardship if she were to be removed from the United States. We hold that we do not have jurisdiction over Arteaga's claim that her due process rights were violated by the fact that her husband was granted cancellation of removal four years earlier based on similar facts. We vacate and remand, however, on Arteaga's second claim that the BIA erred as a matter of law when it held that an applicant for cancellation of removal's ability to demonstrate hardship to his qualifying relatives is necessarily undercut by the possibility that the applicant may have alternative means to immigrate at some undefined point in the future.

II. Facts

Arteaga is a native and citizen of Mexico who arrived in the United States almost twenty years ago, on March 22, 1993, without being admitted or paroled. She does not contest that she entered the country illegally. Arteaga lived in Salinas, California when she first came to the United States and after ten years she moved to Yuma, Arizona, where she currently resides. Her mother and ten of her siblings live in Mexico, and two of her sisters live in California.

On December 6, 2003, Arteaga married Jesus Alvarez (“Alvarez”). He is a lawful permanent resident, having been granted cancellation of removal on April 23, 2003, by an Immigration Judge (“IJ”) in San Francisco. On October 28, 2005, Alvarez filed a petition to immigrate Arteaga on the basis of their marriage.

Arteaga and Alvarez have three children together, ages 18, 15 and 10, all born prior to their marriage. All three children were born in the United States and are American citizens. When asked what language the children speak, Arteaga answered, “English and little Spanish, but the, my daughter, the, English.” The middle child, Natalie, who was 9 years old at the time of Arteaga's hearing, was receiving speech therapy. Natalie was unable to speak until age 4, and Arteaga testified that Natalie had seen doctors in the past but that she did not “have to as much anymore because the school is helping her now.” Natalie receives speech therapy once a week in a special class in the same school where she receives regular instruction, and the speech language pathologist at the school recommended that “direct therapy continue for the next school year.” An Individualized Education Plan was submitted in evidence, which states that Natalie is “still delayed in her verbal communication.” A teacher “reports that Natalie is very difficult to understand in the classroom.” Arteaga also reports that Natalie has difficulty pronouncing Spanish words. None of Arteaga's other children has any medical problems.

Arteaga testified that she would take her children with her if she were deported to Mexico. However, on her original application for cancellation of removal, Arteaga indicated that her children would remain in the United States with her husband. When asked how deportation would affect her children, she answered that “they have their lives made here already.”

III. Proceedings Below

Fearing that she would be apprehended on the street, Arteaga self-surrendered at a border patrol station on November 2, 2005. She was served with a Notice to Appear the same day. Arteaga was charged with being removable under § 212(a)(6)(A)(i) of the Immigration and Nationality Act because she is an alien present in the United States without being admitted or paroled. On December 19, 2005, Arteaga filed an application for cancellation of removal.

Arteaga appeared with counsel before an IJ on January 13, 2006. She conceded removability but continued to pursue her application for cancellation of removal and, in the alternative, for voluntary departure. The hearing was continued to September 18, 2006, at which time Arteaga offered testimony in support of her application. At the conclusion of her testimony, the IJ asked a clerk to do a records check on the 2003 grant of permanent residency to Alvarez. After a break in the proceedings, the IJ stated:

[W]e discovered that he was granted cancellation of removal by another Immigration Court on the day set forth on his lawful permanent residency card, April 23, 2003. So, I wanted both counsel to be aware of that. It seemed to me that that's an important factor for me to take into consideration in the case, and for both of them to be aware of. I have discussed that fact with both counsel, and to summarize, in this case this evidence simply does not rise to the level of exceptional and extremely unusual hardship. Court's unaware [sic] of what factors the husband's cancellation was granted on, but if it was similar to the evidence presented in this case, we are a little concerned about the consistency between the decisions.

The IJ then granted a continuance, with consent from the government, to allow Arteaga to file a request for prosecutorial discretion. On October 6, 2006, the case was administratively closed while the Department of Homeland Security adjudicated the application for prosecutorial discretion.

On April 6, 2007, the IJ announced that the application for prosecutorial discretion had been denied, and he received a motion from the government to recalender the case. Arteaga indicated that she would like to continue to pursue relief rather than accept voluntary departure at an early stage, if offered by the government.

On April 9, 2007, the IJ rendered his oral decision based on the testimony presented during the September 2006 hearing. He determined that Arteaga had testified credibly, and that she met the first three prongs needed to establish eligibility for cancellation of removal: physical presence, good moral character, and lack of criminal convictions. However, the IJ determined that Arteaga did not meet the fourth prong: exceptional and extremely unusual hardship to a qualifying relative. The IJ held that her U.S. citizen children and permanent resident husband, the qualifyingrelatives in this case, were “all in good health.” He noted that one child “was identified as having a problem speaking,” but that the issue “has been dealt with through special classes and therapy.” The IJ further explained that Alvarez had “filed an application to immigrate” Arteaga, which was pending, and that “it will be some period of time before a visa becomes available.” ¹ He concluded that although Arteaga's being deported would cause a hardship to her children, it did not “rise[ ] to the level of exceptional and extremely unusual hardship.” Accordingly, he granted voluntary departure instead.

Arteaga filed a timely appeal with the BIA. She stated that the IJ had failed to give weight to her daughter's medical condition, and that the denial of relief was “inconsistent with a decision to grant issued by an Immigration Judge in San Francisco for [her] husband for the same evidence and application.” The BIA dismissed the appeal. In a per curiam decision, it affirmed that “[f]or the reasons identified by the [IJ] ... the level of hardship in this case falls short of the exceptional and extremely unusual standard.” The BIA noted that Arteaga had not demonstrated that speech therapy would be unavailable in Mexico. Furthermore, it explained that the IJ “was not bound by the decision of a different IJ in a separate matter,” and thus Arteaga's husband's successful application for cancellation of removal was not grounds for reversal. Finally, the BIA stated: “Moreover, the respondent's husband is now a lawful permanent resident who has filed a visa petition on her behalf. We have long held that the availability of an alternative means of lawfully immigrating to the United States undercuts a claim of exceptional and extremely unusual hardship stemming from an alien's removal.”

IV. Jurisdiction and Standard of Review

In cancellation of removal cases we lack jurisdiction to “review [ ] the merits of a hardship determination.” Mendez–Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir.2009). However, we have jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to review constitutional claims and questions of law raised upon a petition for review. Cabrera–Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir.2005). This includes any alleged “colorable constitutional violation,” Martinez–Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2...