Ayeni v. Holder

• Decision Date: 17 August 2010
• Docket Number: No. 09-1508.,09-1508.
• Citation: 617 F.3d 67
• Parties: Anthony Oluwadaisi AYENI, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

617 F.3d 67

Anthony Oluwadaisi AYENI, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-1508.

United States Court of Appeals, First Circuit.

Submitted July 8, 2010.

Decided Aug. 17, 2010.

COPYRIGHT MATERIAL OMITTED

Vard R. Johnson on brief for petitioner.

Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, and Tim Ramnitz, Attorney, Office of Immigration Litigation, on brief for respondent.

Before SELYA, LIPEZ and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

The petitioner challenges a decision of the Board of Immigration Appeals (BIA) denying his application for cancellation of removal. We lack jurisdiction over much of his asseverational array, and what remains is without merit. Accordingly, we reject the petition.

The facts are straightforward. The petitioner, Anthony Oluwadaisi Ayeni, is a native and citizen of Nigeria. He entered the United States on a six-month visitor's visa in August of 1987, and overstayed. He has worked at a variety of occupations, including janitor, newspaper delivery person, taxi and limousine driver, and medical technician. Along the way, he earned an associate's degree in engineering from a community college in Virginia.

In 1998, the petitioner, having been in the United States illegally for a decade, married a countrywoman similarly lacking legal status. The couple and their four American-born children reside in Cranston, Rhode Island.

The eldest child, a son born in 1993, suffers from severe asthma and migraine headaches. The second child, a son born in 1996, is afflicted with attention deficit hyperactivity disorder, for which he takes prescription medication. The third child, a daughter born in 2000, is healthy. Her younger sister, born in 2002, has manifested developmental deficits affecting her speech and language skills.

On April 23, 2003, the Department of Homeland Security commenced removal proceedings against the petitioner. In a hearing before an immigration judge (IJ), the petitioner conceded removability and cross-applied for cancellation of removal. See 8 U.S.C. § 1229b(b)(1). In support, he asserted that he is the sole source of income for his family and that, therefore, his wife and children would be forced to accompany him if he were deported. This would visit upon them a litany of hardships, described in his testimony.

On December 6, 2004, the IJ rejected the petitioner's claim and pretermitted his application for cancellation of removal. She predicated this decision on a finding that the petitioner did not satisfy the good moral character requirement id. § 1229b(b)(1)(B), because he had made a false claim to United States citizenship on an employment eligibility form.

The petitioner appealed to the BIA. Concluding that the petitioner's untruthful assertion of citizenship did not as a matter of law preclude a finding of good moral character, the BIA vacated the IJ's decision and remanded for further proceedings.

A newly assigned IJ reconsidered the petitioner's application for cancellation of removal and, on January 24, 2008, denied it. This time, the IJ held that the petitioner had failed to establish that his American-born children would suffer “exceptional and extremely unusual hardship” were he sent back to Nigeria. Id. § 1229b(b)(1)(D).

The petitioner again appealed to the BIA. On March 26, 2009, the BIA upheld the IJ's decision, explaining that the petitioner had not carried his burden of proving that exceptional and extremely unusual hardship would be visited upon his children if he was removed to Nigeria. This timely petition for judicial review followed. In it, the petitioner asseverates that the BIA committed material errors of law.

We begin our analysis with the basics. Cancellation of removal is a form of discretionary relief, the granting of which allows a non-resident alien, otherwise removable, to remain in the United States. It is available only if an alien can establish (i) that he has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of his application; (ii) that he has been a person of good moral character over that span; (iii) that he has not been convicted of certain enumerated crimes; and (iv) that his removal would result in exceptional and extremely unusual hardship to his American-citizen spouse, parent, or child. Id. § 1229b(b)(1); see Toribio-Chavez v. Holder, 611 F.3d 57, 63 (1st Cir.2010). The first three requirements are not in issue here. Consequently, we focus the lens of our inquiry on the fourth element: whether the petitioner has established that his citizen children are likely to suffer exceptional and extremely unusual hardship should he be removed to his homeland.

This focus is narrowly confined. As a general proposition, the courts of appeals lack jurisdiction to review agency-level hardship determinations made in the cancellation of removal context. 8 U.S.C. § 1252(a)(2)(B) (stating that “no court shall have jurisdiction to review ... any judgment regarding the granting of relief” under the cancellation of removal provision); see Parvez v. Keisler, 506 F.3d 93, 96 (1st Cir.2007); Elysee v. Gonzales, 437 F.3d 221, 223 (1st Cir.2006).

Congress did, however, carve out an isthmian exception to the sweep of this jurisdiction-stripping provision. Under the exception, appellate jurisdiction exists when a petition for judicial review raises claims premised on either constitutional questions or questions of law. 8 U.S.C. § 1252(a)(2)(D). It follows that we have jurisdiction in the instant case only if and to the extent that the petition fits within this exception.

Reaching this safe harbor is not an exercise in semantics. The presence vel non of either a constitutional or legal question is a matter of substance, not a function of labeling. A bare allegation of either a constitutional shortfall or legal error will not transmogrify an unreviewable issue of fact into an issue reviewable by the courts. Xiao Ji Chen v. U.S. DOJ, 471 F.3d 315, 331 (2d Cir.2006). For jurisdiction to attach, the claim of constitutional or legal error must at least be colorable. Elysee, 437 F.3d at 223.

In an effort to access the safe harbor and avoid the jurisdictional bar, the petitioner frames his plaints in the idiom of constitutional or legal error. He advances four arguments, two of which substantially overlap. Consequently, we divide our assessment into three segments.

The petitioner first contends that the BIA committed an error of law by applying an incorrect legal standard. The petitioner starts this argument by explaining that the cancellation of removal statute required him to establish that his removal would result in exceptional and extremely unusual hardship to qualifying family members (here, his American-born children). See 8 U.S.C. § 1229b(b)(1)(D). Building on this foundation, he insists that the BIA added a further requirement, unanchored in the statutory text: proof that he, as the applying alien, would be entirely foreclosed from obtaining employment in his homeland. Relatedly, the petitioner argues that, in adding this neoteric requirement, the BIA departed without explanation from its own precedents and, thus, abridged his right to due process.

The petitioner's argument that the BIA imposed a new and unprecedented requirement for entitlement to cancellation of removal is within our jurisdiction. After all, the choice and shape of an applicable legal standard is quintessentially a question of law. See, e.g., Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir.2007); Vinick v. United States, 205 F.3d 1, 7 (1st Cir.2000); United States v. Mariano, 983 F.2d 1150, 1154 (1st Cir.1993). Thus, we have jurisdiction to hear and determine the petitioner's claim that the BIA applied an incorrect legal standard in his case. See Lumataw v. Holder, 582 F.3d 78, 85 (1st Cir.2009).

This proves to be a Pyrrhic victory for the petitioner. We review the merits of the claim de novo, though according a modicum of deference to the BIA's interpretation of the relevant statute. Mendez-Barrera v. Holder, 602 F.3d 21, 24 (1st Cir.2010). This review shows conclusively that there was no error of law. We explain briefly.

The statement that the petitioner views as the smoking gun reads as follows: “[T]he record does not establish that the [petitioner] is entirely foreclosed from obtaining employment in Nigeria and thus providing his children with the necessities of life.” In characterizing this statement as the herald of a new standard, the petitioner takes one line of text from the BIA's decision and attributes disproportionate weight to it. This approach glosses over the context in which the statement was made and conveniently overlooks that it is a tiny fraction of the BIA's evaluation of the evidence bearing on whether the petitioner established exceptional and extremely unusual hardship.

Reading the BIA's decision as a whole puts the challenged statement in perspective. Far from blazing a new trail, the BIA faithfully applied the congressionally mandated hardship standard. It did not, as the petitioner charges, create a new requirement that an alien prove that he would be altogether unemployable in his homeland. To the contrary, the BIA appears to have made the challenged statement as a comment on the petitioner's testimony that he would be unable to find work in Nigeria. The BIA was merely pointing out that, despite ...