Alvarado v. Holder

• Decision Date: 14 February 2014
• Docket Number: No. 13–1322.,13–1322.
• Citation: 743 F.3d 271
• Parties: Jorge Alberto ALVARADO; Irma Yolanda Cardoza, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

743 F.3d 271

Jorge Alberto ALVARADO; Irma Yolanda Cardoza, Petitioners,

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

No. 13–1322.

United States Court of Appeals,First Circuit.

Feb. 14, 2014.

John P. Garan on brief for petitioners.

Stuart F. Delery, Assistant Attorney General, Civil Division, John S. Hogan, Senior Litigation Counsel, Office of Immigration Litigation, and Robbin K. Blaya, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before THOMPSON, SELYA, and LIPEZ, Circuit Judges.

THOMPSON, Circuit Judge.

Petitioners Jorge Alberto Alvarado and Irma Yolanda Cardoza, husband and wife, left their rural Guatemalan village and entered the United States illegally through the Arizona desert in the mid–1990s. They petition for review of the Board of Immigration Appeals' (BIA) decision upholdingan Immigration Judge's (IJ) denial of their application for cancellation of removal. After careful consideration, we deny their petition in part and otherwise dismiss it for want of jurisdiction.

I. Background

Alvarado and Cardoza have lived and worked in Rhode Island and Massachusetts for over fifteen years. They have two sons: Jorge, born in Guatemala in 1993, and Brian, born in the United States in 1998. In 2008, the couple applied for asylum, which alerted immigration authorities to their presence. Their application was denied, and removal proceedings began shortly thereafter.

In a hearing before an IJ, Alvarado and Cardoza conceded removability but sought cancellation of removal based on the hardship that their departure would cause for their son Brian. To be eligible for cancellation of removal, petitioners must show, among other things, that their removal would result in “exceptional and extremely unusual hardship” to a qualifying relative, such as an American-citizen child. 8 U.S.C. § 1229b(b)(1)(D). Petitioners testified that Brian, who was twelve years old on the day of the hearing, would accompany them to Guatemala if they were ordered removed. Having been born in the United States and never having visited Guatemala, Brian, they explained, would face several formidable obstacles in Guatemala.

First, as a gifted student, Brian would not be able to reach his full potential in Guatemala because of the lack of educational opportunities available there. Sallie D'Agostino Pisaturo, a certified school psychologist with a master's degree in mental health counseling, testified on petitioners' behalf. After conducting a psycho-educational evaluation of Brian, speaking with his parents, and contacting his school, Pisaturo concluded that, in terms of academic skill, Brian was one grade level or higher than his peers and possessed “superior intellectual ability.” Pisaturo had never been to Guatemala, but she had read widely about the Guatemalan school system. Based on her research, she was concerned that Brian would not receive an appropriate education in Guatemala due to the lack of quality teachers and enrichment programs for high-achieving students, particularly in rural regions. She testified that Brian's needs are “as specialized as those of a child with a learning disability or a developmental disorder because he is gifted.” She warned that Brian could become discouraged and develop behavioral problems if not placed in a program that offers the stimulation he requires.

Second, although Brian tested very well in some areas, Pisaturo found that Brian has “weaknesses with getting overloaded easily and [has] some memory difficulties.” Brian's parents worry that he is suffering from attention deficit hyperactivity disorder, though it is unclear whether he has ever been diagnosed. They claim his deficiencies require specialized educational interventions that are widely available in the United States but not in Guatemala.

Third, Brian's inability to read, write, or fluently speak Spanish would further hinder his ability to receive an education in Guatemala. Although Brian's parents speak Spanish at home, Brian resists speaking Spanish and has been educated entirely in English. Brian's poor Spanish skills would make it difficult for him to succeed in school, socialize with his peers, and find a good job in Guatemala.

Fourth, if the family returned to Joyabaj, Guatemala, the rural area where petitioners were born, Brian and his family would have to overcome steep practical hurdles. For example, Brian would have to travel at least an hour by bus to reach the nearest school. Besides, Alvarado testified, he could never afford to pay Brian's tuition and bus fare with his income as a farmer in Guatemala.

Finally, and worst of all, Alvarado said, he would fear for Brian's safety in Guatemala, where kidnappings, gangs, and violent crime are rampant, especially because Brian lacks “street smarts” and does not speak the language.

Taking all this into consideration, the IJ nevertheless found that petitioners had not established that Brian would suffer “exceptional and extremely unusual hardship” if his parents were removed to Guatemala. She acknowledged Pisaturo's testimony that Brian was gifted and might not have access to as good an education in Guatemala as he would in the United States. However, she said, simply because Brian could receive a higher level of education in the United States did not mean that he had the right to expect a comparable level of education in Guatemala. Moreover, petitioners had not shown that an appropriate education did not exist for Brian in Guatemala; rather, Brian's family might have to send him to school far away from their rural village or pay private school tuition to obtain the education best-suited to his needs. The fact that a high-quality education might be more difficult or more expensive to get in Guatemala than in the United States did not trigger “exceptional and extremely unusual hardship” for Brian.

As to the other roadblocks cited by petitioners, the IJ concluded that “[b]asically, there is absolutely nothing else, other than the normal difficulties that individual[s] have to go through when relocating to another country, to base this exceptional and extremely unusual hardship upon.” Accordingly, she found that Brian's parents had failed to meet the hardship eligibility requirement for cancellation of removal. She therefore denied their application and ordered them removed to Guatemala.

On appeal, the BIA dismissed the couple's petition for relief because it discerned no clear error in the IJ's factual findings and agreed with the IJ's legal and discretionary determinations. Hoping to reverse this trend, Alvarado and Cardoza ask us to review the BIA's decision.

II. Discussion

Petitioners say the BIA committed legal error when it affirmed the IJ's denial of their application for cancellation of removal. The government counters that we lack jurisdiction to evaluate petitioners' claim.

We begin our discussion with a basic overview of the relief petitioners seek. Cancellation of removal is a form of discretionary relief which, if granted, permits an otherwise removable non-resident alien to remain in the United States. Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir.2010). It is available only if an alien: (a) has resided in the United States for a continuous period of at least ten years immediately preceding his application; (b) has been a person of good moral character during that period; (c) has not been convicted of certain enumerated offenses; and (d) has established that removal would result in exceptional and extremely unusual hardship to a qualifying family member, such as an American-citizen child. Id. (citing 8 U.S.C. § 1229b(b)(1)); Toribio–Chavez v. Holder, 611 F.3d 57, 64 (1st Cir.2010).

The first three requirements are not at issue here.¹ Accordingly, we proceed to the fourth prong: whether petitioners have shown that their American-citizen son Brian is likely to suffer exceptional and extremely unusual hardship if his parents are removed to Guatemala. See8 U.S.C. § 1229b(b)(1)(D).

This is a high bar to clear. It requires petitioners to demonstrate that Brian would suffer hardship that is “substantially different from, or beyond, that which would normally be expected from the deportation” of a close relative, though it need not be “unconscionable.” See Matter of Monreal–Aguinaga, 23 I. & N. Dec. 56, 60, 65 (BIA 2001); see also Matter of Gonzalez Recinas, 23 I. & N. Dec. 467, 468 (BIA 2002).

Statutes narrowly circumscribe our review on this point. Courts generally lack jurisdiction to review a judgment concerning discretionary relief sought under the cancellation of removal provision. 8 U.S.C. § 1252(a)(2)(B)(i); see Ayeni, 617 F.3d at 70;Toribio–Chavez, 611 F.3d at 64. Constitutional claims and questions of law, however, are excepted from this prohibition. 8 U.S.C. § 1252(a)(2)(D); see Ayeni, 617 F.3d at 70;Toribio–Chavez, 611 F.3d at 64. Thus, we have jurisdiction to consider this petition only if it raises a question of constitutional or legal dimension. See Ayeni, 617 F.3d at 70.

The presence of a constitutional or legal question “is a matter of substance, not a function of labeling.” Id. at 70–71. Styling a factual claim as constitutional or legal error will not transform an unreviewable issue of fact into a reviewable issue of law. Id. at 71; Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir.2007). Rather, only a “colorable” claim of constitutional or legal error—i.e., a constitutional or legal argument that is at least potentially valid—can give rise to our jurisdiction. Pan, 489 F.3d at 84;see also Ayeni, 617 F.3d at 71.

Generally, whether a petitioner satisfies the hardship requirement for cancellation of removal is a factual, not legal, inquiry. See Parvez v. Keisler, 506 F.3d 93, 96 (1st Cir.2007). For this reason, we typically decline to review a determination of whether a petitioner has met this burden. Castro v. Holder, 727 F.3d 125, 128 (1st Cir.2013). While we retain jurisdiction over claims that the IJ or the BIA imposed a new...