Delgado v. Holder, 11–2648.

• Decision Date: 22 March 2012
• Docket Number: No. 11–2648.,11–2648.
• Citation: 674 F.3d 759
• Parties: Ernesto DELGADO, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

674 F.3d 759

Ernesto DELGADO, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 11–2648.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 15, 2012.Decided March 22, 2012.

June Jasmine Htun (argued), Richard Harvey Trais, Attorneys, Richard H. Trais Attorney at Law, Chicago, IL, for Petitioner.

OIL, Dara Smith (argued), Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Ernesto Delgado entered the United States illegally in 1989. Eleven years later, in 2000, the Immigration and Naturalization Service (the “INS”) commenced removal proceedings against Delgado by sending him a Notice to Appear. Delgado admitted the allegations in the Notice to Appear, but sought leave to stay in the United States by filing an application for Cancellation of Removal. After several immigration hearings and two remands from the Board of Immigration Appeals (the “BIA” or “Board”), an immigration judge denied Delgado's application for cancellation, and the BIA affirmed that finding. Delgado appeals the BIA's decision, claiming that his cancellation application was wrongly decided and that his right to due process was violated. We deny Delgado's petition for review.

I. Background

In 1989, Delgado left his home in Morelos, Mexico and illegally entered the United States. He settled in Chicago where he has maintained a continuous residence. In 1992, he married Analoet Roman, another illegal alien, and together they have three children: Guadalupe (18 years old), Daisy (13 years old) and Luis (5 years old). All three of the Delgado's children were born in the United States and are U.S. citizens.

This case began in 2000 when the INS commenced proceedings against Delgado with the filing of a Notice to Appear. The Notice to Appear charged Delgado with being a native of Mexico who is subject to removal from the United States. In response, Delgado filed an application for cancellation of removal pursuant to INA § 240A(b)(1), 8 U.S.C. § 1229b(b) 1. To qualify for cancellation under § 1229b(b)(1), an alien must meet the following four criteria:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and

(D) establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.

The merits hearing on Delgado's cancellation of removal claim took place on September 24, 2004. Though the immigration judge (“IJ”) found that Delgado established the requisite continuous physical presence and good moral character for cancellation of removal, he determined that Delgado failed to meet his burden of showing his removal would result in exceptional and extremely unusual hardship to his children, who are United States citizens. The IJ denied his application for cancellation or removal, granted voluntary departure, and alternatively, ordered his removal to Mexico.

Delgado appealed the IJ's decision to the BIA. In 2005, the BIA remanded Delgado's case to the IJ for further action and certification because the tape recording of Delgado's hearing was defective, which prevented the BIA from analyzing Delgado's claims on appeal. The BIA instructed the IJ to take the steps necessary and appropriate to enable the BIA to review a complete record and to hold a new hearing if necessary. In response, the IJ determined that a new hearing was unnecessary, given that the only shortcoming of the previous record was an inability to discern what was said at Delgado's hearing. The IJ therefore determined that it was inappropriate to consider new documents or evidence.

The BIA disagreed. In July 2008, the BIA ruled that its 2005 order did not preclude the submission of new evidence or the taking of additional testimony, and because new evidence might have been relevant, it ordered a new hearing and preparation of a new decision that included comprehensive findings of fact. On June 18, 2010, the IJ held a second merits hearing on Delgado's application for relief.

During Delgado's 2010 cancellation hearing—the hearing we now review—Delgado offered supporting evidence in the form of documentation and live testimony. Delgado testified that his parents and at least two brothers still reside in Morelos. Despite this fact, he claimed that his family would be unable to stay with his parents in Mexico because his parents do not have the resources to support them. Delgado admits that he has not looked into the possibility of living anywhere other than Morelos, or living with anyone other than his parents. Delgado also stated that if he were to move to Mexico, his father, who owns a business in Morelos, would be unable to offer him a job. Delgado admits that he did not look into the possibility of working anywhere besides his father's business.

In addition to Delgado's perception that there is a lack of housing and employment opportunities in Morelos, he explained that Morelos is not a safe place to live, citing excessive violence and murder. Delgado also lamented the possibility that his daughters may need to enter the Mexican education system. He stated that the schools are not as good as they are in the United States, and that the children would have difficulty taking classes in Spanish.

Guadalupe also testified at the hearing. Her sister, Daisy, did not testify, but Guadalupe offered testimony as to her sister. Guadalupe is in honors classes, receives As and Bs in school, and aspires to work in the medical field. Daisy also receives As and Bs. Both daughters have been to Mexico on vacation, and both prefer the United States to Mexico. Guadalupe can speak, read and write in Spanish. Daisy can speak Spanish enough to communicate with her father (who does not speak English), but she cannot read or write in Spanish. According to Guadalupe and Delgado, a move to Mexico would be challenging for both daughters, but would be much more difficult for Daisy. Delgado and Guadalupe maintained that Daisy would have an especially difficult time, since she is old enough to have become acculturated by the United States and she cannot read or write in Spanish. Guadalupe also expressed concern regarding her college prospects in Mexico—the nearest university to Morelos is an hour and a half away. She also discussed the potentially prohibitive costs of a college education in Mexico, and while Delgado did not know whether Guadalupe would be eligible for financial aid, Guadalupe believed that she would not be able to receive any financial help from the State.

Delgado was unclear regarding where his children would live if he were deported. If they did remain in the United States, they would need to be supported by the income of their mother and the $50,000 that Delgado has in the bank. Guadalupe discussed the possibility of working while in school to help support the family.

If Delgado does get deported, there is a possibility that he would return to the United States in the future. One of his brothers is a United States citizen, and in 1999, Delgado's brother applied for a visa for Delgado, thus raising the chances that Delgado would not be separated from his family permanently.

At the hearing, the IJ took a semi-active role in the questioning (as he is permitted to do under 8 U.S.C. § 1229a(b)(1), which allows the IJ to “interrogate, examine, and cross-examine the alien and any witnesses.”). During the direct examination of Delgado, the IJ interrupted the questioning three to four times to either clarify what was being said, ask for an expanded answer, or inquire as to why a certain line of testimony was relevant. For example, the IJ interrupted a line of questioning regarding the undesirability of Delgado's parents' home as a potential residence for Delgado's family. In interjecting, the IJ questioned the relevance of the testimony since Delgado could choose to live in any number of other locations in Morelos, or even Mexico generally. The IJ also conducted his own examination of Delgado once both attorneys had completed their questioning. Delgado's attorney requested permission to ask follow-up questions to the IJ's examination of Delgado, but her request was denied. She also asked that both of Delgado's daughters provide testimony in support of Delgado's cancellation request, but the IJ only allowed one daughter to testify. Delgado's attorney did not object.

Delgado faults the IJ's general demeanor during Delgado's hearing. He suggests that the IJ was rude and hostile throughout the hearing. As an example of the IJ's allegedly inappropriate demeanor, Delgado quotes the following line of questioning conducted by the IJ:

But that's why you, a good family man who's concerned about your family, would go back there and live there as opposed to any other place in Mexico, isn't it? You'd go to the place that is the most violent. You'd choose to live in that place in Mexico. Isn't that right, according to your account?

At the conclusion of Delgado's 2010 cancellation hearing, the IJ determined that Delgado met three of the four criteria to be eligible for cancellation of removal, but held that Delgado fell short of proving that his removal would result in “exceptional and extremely unusual hardship” to his children. He also ruled that Delgado should not be granted voluntary departure, since he chose not to leave the country voluntarily on the two prior occasions that the IJ denied Delgado's cancellation request—that is, the denials from which Delgado appealed. Just as with the...