Barco-Sandoval v. Gonzales

• Decision Date: 01 August 2007
• Docket Number: Docket No. 06-0360-ag.
• Citation: Barco-Sandoval v. Gonzales, 496 F.3d 132 (2nd Cir. 2007)
• Parties: Byron BARCO-SANDOVAL, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

496 F.3d 132

Byron BARCO-SANDOVAL, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

Docket No. 06-0360-ag.

United States Court of Appeals, Second Circuit.

Submitted: May 23, 2007.

Decided: August 1, 2007.

Errata Filed: August 6, 2007.

Byron Barco-Sandoval, Bridgeport, CT, pro se.

Richard M. Molot, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney, Sandra Glover, Assistant United States Attorney, on the brief), United States Attorney's Office for the District of Connecticut, New Haven, CT, for Respondent.

Before: WALKER and CABRANES, Circuit Judges, and GOLDBERG,^* Judge.

JOSÉ A. CABRANES, Circuit Judge:

Petitioner Byron Barco-Sandoval, a native and citizen of Guatemala, seeks review of a decision by the Board of Immigration Appeals ("BIA"), adopting and affirming a decision by Immigration Judge ("IJ") Michael W. Straus, denying his application for cancellation of removal under section 240A(b)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229b(b)(1).¹ See In re Barco-Sandoval, No. A 71 500 354 (B.I.A. Jan. 4, 2006) ("BIA Dec."), aff'g In re Barco-Sandoval, No. A 71 500 354 (Immig. Ct. Hartford Oct. 1, 2004) ("IJ Dec."). The IJ denied Barco-Sandoval's application for two reasons. First, the IJ stated that Barco-Sandoval did not deserve a favorable exercise of discretion because he had been arrested twice for driving while intoxicated ("DWI"). Second, the IJ found that Barco-Sandoval had failed to demonstrate that his removal would "result in exceptional and extremely unusual hardship" to his family, 8 U.S.C. § 1229b(b)(1)(D). The BIA agreed with the IJ's reasoning and affirmed his decision.

On appeal, Barco-Sandoval contends that the IJ's decision, and the BIA's decision adopting it, used the incorrect standard to determine whether he had demonstrated extreme and unusual hardship, and that he was entitled to relief under both the correct standard and the allegedly incorrect standard actually used by the agency. The Government seeks dismissal of the petition, asserting that this Court lacks jurisdiction to review the agency's discretionary and factual determinations leading to the denial of Barco-Sandoval's application for cancellation of removal.

We dismiss the petition, concluding (1) that we lack jurisdiction to review the agency's discretionary and factual determinations underlying the denial of Barco-Sandoval's application for cancellation of removal, and (2) that Barco-Sandoval fails to raise any colorable constitutional claims or questions of law. In reaching this conclusion, we reaffirm our holding in De La Vega v. Gonzales, 436 F.3d 141 (2d Cir. 2006), that we lack jurisdiction to review "discretionary determinations concerning whether to grant cancellation of removal," id. at 144, and we settle the question of whether De La Vega remains good law in light of our revised opinion in Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144 (2d Cir.2006) ("Xiao Ji Chen I"), on reh'g, 471 F.3d 315 (2d Cir.2006) ("Xiao Ji Chen II"). Cf. Barnaby-King v. DHS, 485 F.3d 684, 686 (2d Cir.2007) (raising question in dicta of whether cases relying on Xiao Ji Chen I's interpretation of "constitutional claims and questions of law," 8 U.S.C. § 1252(a)(2)(D), remain controlling).

BACKGROUND

Barco-Sandoval entered the United States illegally in March 1992. In May 2003, he was issued a Notice to Appear in removal proceedings. He subsequently admitted the factual allegations contained in the Notice to Appear and conceded that he was removable. In July 2004, Barco-Sandoval applied for cancellation of removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), which authorizes the Attorney General, in his discretion, to cancel the removal of an alien who meets certain statutory requirements. See ante note 1 (reproducing 8 U.S.C. § 1229b(b)(1)).

At his October 2004 hearing on the application for cancellation of removal, Barco-Sandoval, represented by counsel, testified that he had been employed with the same company for the past eleven years, and that he made $17.50 an hour working for the company. Barco-Sandoval stated that he had lived with the same woman, Amrailas Bonilla—also an undocumented alien—for the past eleven years, and had fathered three U.S.-citizen children with her. Barco-Sandoval testified that his children were doing well in school, with the exception of his youngest, Katherine, who "has a problem with speech." He stated that Katherine's teacher and doctor had suggested that Barco-Sandoval and Bonilla take her to a therapist, but they had not yet done so.

When asked about the consequences of his removal, Barco-Sandoval stated that if he were forced to return to Guatemala, he would have no family members there, other than his grandparents, whom he helps to support. He also testified that if he were returned to Guatemala his children would suffer, because of the bond he has with them and also because of the financial support he provides.

Barco-Sandoval admitted that he had been arrested twice for DWI. He asserted that after his first arrest, in 1995, he took ten alcohol education classes and the charges were dismissed. He was arrested again for DWI in 2002. As a result of this arrest, Barco-Sandoval was put on probation, his license was suspended for a year, and he was required to take six months of alcohol education classes. He asserted that he had completed all of the required classes, but told the IJ that he had left at home proof of his successful completion of these requirements.

Following the hearing, the IJ rendered an oral decision denying Barco-Sandoval's application for cancellation of removal. The IJ determined that Barco-Sandoval should be denied relief "in the exercise of discretion" based on "the dangerousness of driving under the influence, and the potential harm to the public" he posed. IJ Dec. 6, Joint Appendix ("J.A.") 36. The IJ then relied on In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), in determining that Barco-Sandoval had not established that his three U.S.-citizen children would suffer "exceptional and extremely unusual hardship" if he were removed to Guatemala.² The IJ noted that under Monreal-Aguinaga, cancellation of removal relief "should be available to individuals only in compelling cases." Id. (citing Monreal-Aguinaga, 23 I. & N. Dec. at 59). The IJ found that, even though Barco-Sandoval's children would lose the financial support and companionship that he provided were he to be removed, these factors were not, by themselves, sufficient to establish his right to relief because "[t]hese are hardship factors that can typically occur when a close family member must depart the United States." Id. at. 8, J.A. 38. The IJ also found that Barco-Sandoval's failure to address his daughter Katherine's "serious speech issue" was an adverse factor weighing against a finding that his children would suffer exceptional hardship were he to be removed. Id. at 7, J.A. 37. The IJ did, however, grant Barco-Sandoval voluntary departure.

On January 4, 2006, the BIA adopted and affirmed the IJ's decision. The BIA agreed that Barco-Sandoval had failed to establish that his three U.S. citizen children would face exceptional and extremely unusual hardship upon his removal, and that his "recidivist misconduct for driving under the influence" supported the denial of his application in the exercise of discretion. BIA Dec. 1, J.A. 2.

On January 26, 2006, Barco-Sandoval, appearing in this Court pro se, timely filed a motion for a stay of removal and a petition for review of the BIA's January 2006 order. In his brief in support of the petition, Barco-Sandoval argues that the IJ's reliance on Monreal-Aguinaga was "misplaced," Pet'r Br. 4, because that decision allegedly was "superseded" by the BIA's subsequent decision in In re Recinas, 23 I. & N. Dec. 467 (BIA 2002). Barco-Sandoval asserts that Recinas established a less stringent standard than Monreal-Aguinaga for satisfying the "exceptional and extremely unusual hardship" requirement of the cancellation of removal statute. Barco-Sandoval's brief also contends that, under either the Recinas standard or the Monreal-Aguinaga standard, he should be entitled to cancellation of removal because of the severe economic hardship that his U.S. citizen children-particularly his speech-impaired daughter — would suffer were he forced to return to Guatemala.³

In March 2007, the Government filed a motion to dismiss the petition for lack of jurisdiction. In its motion, the Government argues that this Court lacks jurisdiction to review the January 2006 BIA ruling because it reflects a discretionary decision that is unreviewable under INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), which provides that "[n]otwithstanding any other provisions of law . . ., no court shall have jurisdiction to review . . . any judgment regarding the granting of relief under [8 U.S.C.] section . . . 1229b," the cancellation of removal statute. The Government acknowledges that under Section 106(a)(1)(A)(iii) of the REAL ID Act of 2005, Pub.L. No. 109-13, Div. B, 119 Stat. 231, 310-11 (codified at 8 U.S.C. § 1252(a)(2)(D)), the limitations on judicial review set forth in 8 U.S.C. § 1252(a)(2)(B)(i) are not to be "construed as precluding review of constitutional claims or questions of law raised upon a petition for review." 8 U.S.C. § 1252(a)(2)(D). Relying on De La Vega and Xiao Ji Chen II, the Government contends that Barco-Sandoval raises no nonfrivolous constitutional claims or questions of law in his petition, and therefore we are required to dismiss the petition for want of jurisdiction.

DISCUSSION

A. De La Vega Remains Binding Law of the Circuit

If De La Vega remains binding, we lack jurisdiction to review Barco-Sandoval's challenge to the BIA's decision denying him the discretionary relief of cancellation of removal. We concluded in De La Vega that "the BIA's discretionary determinations...