Perez-Roblero v. Holder, 071511 FED6, 09-3982

Docket Nº:09-3982
Opinion Judge:SAMUEL H. MAYS, JR., District Judge
Party Name:ANACELIA PEREZ-ROBLERO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General Respondent.
Judge Panel:Before: McKEAGUE and STRANCH, Circuit Judges; and MAYS, District Judge.
Case Date:July 15, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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ANACELIA PEREZ-ROBLERO, Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General Respondent.

No. 09-3982

United States Court of Appeals, Sixth Circuit

July 15, 2011

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON PETITION FOR REVIEW FROM ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before: McKEAGUE and STRANCH, Circuit Judges; and MAYS, District Judge. [*]

SAMUEL H. MAYS, JR., District Judge

Petitioner Anacelia Perez-Roblero ("Perez-Roblero") seeks review of the Board of Immigration Appeals' (the "BIA") order denying cancellation of removal and voluntary departure. For the following reasons, we DENY Perez-Roblero's petition for review.

I.

A native of Guatemala, Perez-Roblero entered the United States at age sixteen on December 7, 1992. Her immigration proceedings began on August 15, 2003, when she received a Notice to Appear before the Executive Office for Immigration Review in Detroit, Michigan from the Department of Homeland Security (the "Government"). At her appearance on February 4, 2005, Perez-Roblero conceded that she was present without having been admitted or paroled and therefore removable under Section 212(a)(6)(A)(I) of the Immigration and Nationality Act (the "Act"). She also stated her intention to apply for two forms of discretionary relief: cancellation of removal, under Section 240A(b)(1) of the Act, and voluntary departure, under Section 240B of the Act.

Immigration Judge Marsha K. Nettles (the "IJ") held a hearing on Perez-Roblero's requested relief on April 9, 2008. After the IJ had received documentary evidence, Perez-Roblero testified on her own behalf. The focus of Perez-Roblero's testimony was the hardship that her three minor children, all United States citizens, would suffer if she were removed to Guatemala. Perez-Roblero testified about their health problems. She noted that her thirteen-year-old son, Hector, and her four-year-old son, Cleybi, suffered from asthma and that Cleybi's condition was serious enough to require daily use of an inhaler and weekly use of a nebulizer to regulate his breathing. Perez-Roblero expressed concern about the availability of medical care near her family's home outside Sibinal, San Marcos, Guatemala, testifying that she remembered traveling seven to eight hours by car to visit a doctor as a child. She acknowledged, however, that she had not investigated the availability of medical care for her children with anyone currently living there. Perez-Roblero also discussed the effect that the lack of educational opportunity and social problems in Guatemala might have on her children. She testified that her children might need to work instead of attend school and expressed concern about gang activity near her family's home. Perez-Roblero acknowledged, however, that she did not know whether her nieces and nephews, who were living in Guatemala, worked or attended school and that she was aware of gang activity near her home outside Detroit.

After discussing the potential hardship to her children, Perez-Roblero admitted that she had extensive family living in Guatemala, including all six of her siblings. Although she had stated on a previously withdrawn asylum application that three of her siblings were living in the United States, including her brother Ignacio, she explained that they had since returned to Guatemala. Perez-Roblero testified that five of her six siblings now resided at her family's home, where they worked on a family farm, cultivating beans, corn, and coffee, some of which they used for subsistence and some of which they sold for profit. She acknowledged that, if she were removed, her parents would probably permit her and her children to live with them, at least temporarily. Perez-Roblero also admitted that she had accumulated assets in the United States, including three automobiles with clean titles, a home with $15, 000 in equity, and $10, 000 in savings.

After Perez-Roblero's testimony, the IJ stated that she did not believe that Perez-Roblero's physical presence or moral character were at issue in determining her eligibility for cancellation of removal and that her case would "come down to hardship." The Government agreed. To support the case for hardship, Perez-Roblero's son Hector took the stand and reiterated much of his mother's testimony. However, Hector contradicted Perez-Roblero's testimony on one, important point. Although Perez-Roblero had testified that all of her siblings, including her brother Ignacio, were living in Guatemala, Hector testified that Ignacio lived with them in Michigan. Hector said that Ignacio had been present at their home when they left for his mother's hearing.

After Hector's testimony, Perez-Roblero took the stand to explain her prior testimony about Ignacio's presence in the United States. She initially said that she was "just nervous" when she testified that she had no family members in the United States. She then said she was "afraid" because Ignacio had been caught driving while intoxicated recently. The IJ interrupted Perez-Roblero's testimony, said she had given contradictory explanations about her earlier testimony, and asked why she "didn't . . . tell . . . the truth" about Ignacio's presence. Perez-Roblero responded that "they're going to deport him to Guatemala and he basically does not exist here." The IJ asked, "Madam, do you understand that what you told me was not the truth and that what you've essentially done is justifying in your own mind why you should tell me something that is completely false?" Perez-Roberlo answered, "Yes." In response, the IJ said that she had reason to doubt whether any of Perez-Roblero's testimony about her past was true. Perez-Roblero responded that, with the exception of her testimony about Ignacio's presence, everything she had said was true.

Before stepping down, Perez-Roblero attempted to qualify for voluntary departure, saying that she would leave the United States at her own expense if the IJ denied cancellation of removal and that she had sufficient assets to purchase transportation and post a bond. After her testimony, the parties gave closing arguments. In its closing, the Government noted that it had stipulated to Perez-Roblero's good moral character before her misstatement about Ignacio's presence in the United States. The Government urged the IJ to consider that misstatement.

After deliberating, the IJ rendered an oral decision denying cancellation of removal because Perez-Roblero had not shown the statutorily required hardship, the statutorily required good moral character, or entitlement to a favorable exercise of discretion. The IJ concluded that Perez-Roblero had not established that her three United States citizen children would suffer the "exceptional and extremely unusual hardship" required for cancellation of removal. Although the children "had some medical issues, " Perez-Roblero had not shown more hardship than "ordinarily would be expected to result from an individual's removal from the United States." The IJ also concluded that Perez-Roblero's providing clearly false testimony under oath demonstrated her "complete lack of veracity, " which made her unable to establish the required "good moral character" and demonstrated that she was not entitled to a "favorable exercise of discretion" even if she could establish statutory eligibility.

The IJ also denied Perez-Roblero's application for voluntary departure. Although...

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