Mendez v. Mukasey
| Decision Date | 12 May 2008 |
| Docket Number | Docket No. 06-0032-ag. |
| Citation | 525 F.3d 216 |
| Parties | Juan Manuel MENDEZ, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Attorney General, United States Department of Justice, Respondents. |
| Court | U.S. Court of Appeals — Second Circuit |
Martin L. Rothstein, Barst & Mukamal, LLP (Dan Lundy, on the brief), New York, N.Y., for Petitioner.
Jennifer Paisner, Office of Immigration Litigation, United States Department of Justice, Civil Division, Washington, D.C., for Respondent.
Before: McLAUGHLIN, CALABRESI, and SOTOMAYOR, Circuit Judges.
Petitioner Juan Manuel Mendez, a native and citizen of Mexico, seeks review of a decision of the Board of Immigration Appeals ("BIA") summarily affirming a decision of an Immigration Judge ("IJ"), which denied Mendez's application for cancellation of removal. In re Juan Manuel Mendez, No. A78 428 394 (B.I.A. Dec. 9, 2005), aff'g No. A78 428 394 (Immig. Ct. N.Y. City Sept. 28, 2004). The IJ denied Mendez's petition on the grounds that he had not demonstrated that his removal would result in "exceptional and extremely unusual hardship" to his United States citizen children. 8 U.S.C. § 1229b(b)(1)(D).
Petitioner argues that the IJ erred as a matter of law by applying the wrong standard for determining whether the hardship caused by his removal would be "exceptional and extremely unusual." In De La Vega v. Gonzales, 436 F.3d 141 (2d Cir. 2006), we held that "exceptional and extremely unusual hardship" determinations are discretionary judgments for which we lack jurisdiction to review. Id. at 145-46. Notwithstanding this decision, Petitioner asserts that we have jurisdiction to review his claim regarding the construction and application of the hardship standard, arguing that "so far as De La Vega holds that hardship determinations are discretionary, that holding is based on inapplicable reasoning and case law regarding a previous version of the Cancellation statute, which differs in critical ways from the current one." We dismiss the petition for lack of jurisdiction because we believe that De La Vega's holding encompasses the claims for which Petitioner seeks review.
Because the agency has not questioned Petitioner's credibility, we take the facts asserted by him to be true. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir.2005) (). Petitioner entered the United States in 1989, at age fifteen, and has lived in this country ever since. In 1998, he married; his wife is also present in the United States without documentation. Petitioner and his wife have two children: their son, Jesus Manuel, was born in 1992, and their daughter, Daisy, was born in 1999. Both children are United States citizens.
Petitioner's daughter suffers from severe asthma. Petitioner testified that she has about twenty-five asthma attacks a year and that her condition requires the use of a home nebulizer as well as an inhaler. She also requires regular visits to the emergency room for serious attacks.
Shortly after he was born, Petitioner's son was diagnosed with Grade II Vesicoureteral Reflux. This disease causes urine to reflux from the bladder back to the kidneys and liver, causing staph infections, scarring, and tissue damage. Ultimately, the condition could lead to kidney or liver failure. Jesus received treatment for this condition until age seven, at which point tests showed that his kidneys were normal. He must see a specialist every year, however, to ensure that there are no recurrences or lasting effects.
Petitioner testified that there are "not many jobs available" in the part of Mexico that he is from, and his relatives would be unable to support him and his family if he returned. As a result, he would be unable to pay for his children's medical care or education there. Moreover, there is no doctor in his village in Mexico, and he would have to pay to travel to another city whenever one of his children needed medical care. According to Petitioner, the region of Mexico in which his village is located has few doctors and even fewer specialists. He was uncertain whether the medications for his daughter's asthma would be available there, but he was certain that, if they were, they would be "very expensive."
Additionally, Petitioner's children are unfamiliar with Mexican culture and not fully comfortable speaking Spanish. Petitioner testified that his son was in an honors program and wanted to be a lawyer, a doctor, or a police officer. In Mexico, Petitioner did not think he would be able to pay for the education necessary for his son to pursue these fields. In short, Petitioner concluded that relocating to Mexico would be a "disaster" for his children.
The Immigration and Naturalization Service2 served Petitioner with a Notice to Appear on June 10, 2002. Petitioner conceded removability and applied for cancellation of removal. The IJ denied the application, finding Petitioner ineligible for relief, and the BIA affirmed.
In order to demonstrate eligibility for cancellation from removal, Petitioner must show that he:
(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 for an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title ...; 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.
8 U.S.C. § 1229b(b)(1). The Government has stipulated that Petitioner meets the first three requirements. Accordingly, the only issue is whether Petitioner has demonstrated that his removal would result in exceptional and extremely unusual hardship to his children.
The IJ found that it would not. She wrote that, "[w]hile it is clear from the evidence of record that the respondent's children will, in fact, suffer a hardship, one which might even be characterized or classified as an extreme hardship, the Court finds that there is insufficient evidence on which the Court can conclude that this hardship to his children would be exceptional and extremely unusual." The BIA summarily affirmed.
Under 8 U.S.C. § 1252(a)(2)(B)(i), this Court lacks jurisdiction to review "any judgment regarding the granting of relief under ... [8 U.S.C. § 1229b]." Notwithstanding this provision, Petitioner argues that "8 U.S.C. § 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions regarding an alien's eligibility for the relief specified in 8 U.S.C. § 1252(a)(2)(B)(i)."3 Sepulveda v. Gonzales, 407 F.3d 59, 62-63 (2d Cir. 2005) (emphasis added). That is, Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir.2006) (per curiam) (citations omitted). He argues that "[b]ecause these two stages are distinct, we have jurisdiction to review whether the BIA correctly determined that the alien was eligible for" cancellation of removal, id., but we lack jurisdiction at the second stage to review the Attorney General's decision to grant or deny relief, made entirely in his discretion. See also INS v. St. Cyr, 533 U.S. 289, 307, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ().
Petitioner points out that, based on this precedent, we have previously held that we retain jurisdiction to review agency determinations regarding two eligibility requirements for cancellation of removal: (a) that an alien has not been convicted of certain crimes, see Rodriguez, 451 F.3d at 62-63; and (b) that an alien "has been a person of good moral character," see Sepulveda, 407 F.3d at 62-64. We have also intimated, but not yet held, that we have jurisdiction to review a third requirement — that an alien meets certain physical presence conditions. See id. at 63. Petitioner argues that we broke from these holdings in De La Vega when we ruled that we lack jurisdiction to review the last remaining eligibility requirement, "exceptional and extremely unusual hardship," concluding that such determinations are inherently discretionary judgments. See 436 F.3d at 145-46; see also Barco-Sandoval v. Gonzales, 516 F.3d 35, 38-39 (2d Cir.2008) ().
Petitioner argues there is no compelling reason to differentiate the "exceptional and extremely unusual hardship" determination from the other eligibility requirements. He asserts that the plain language of the cancellation of removal statute suggests no difference between the four requirements, and that there is no compelling argument why, for example, the definition of "physical presence" or "good moral character" is more a question of statutory construction than the definition of "exceptional and extremely unusual hardship."4 Likewise, Petitioner argues it should be obvious that if the BIA were to deny an alien's petition, not because it deems the hardship to, say, the alien's adoptive mother insufficiently serious, but because it determined that an adoptive mother was not a "parent" within the meaning of 8 U.S.C. § 1229b(b)(1)(D), that we would have jurisdiction to question the agency's statutory interpretation. See Jun Min Zhang v. Gonzales, 457 F.3d 172, 180 (2d Cir.2006) ...
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