Santana-medina v. Holder

• Decision Date: 05 August 2010
• Docket Number: No. 09-2598.,09-2598.
• Parties: Pablo SANTANA-MEDINA, Petitioner, v. Eric H. HOLDER, Jr., Respondent.
• Court: U.S. Court of Appeals — First Circuit

616 F.3d 49

Pablo SANTANA-MEDINA, Petitioner,
v.
Eric H. HOLDER, Jr., Respondent.

No. 09-2598.

United States Court of Appeals,First Circuit.

Submitted June 30, 2010.
Decided Aug. 5, 2010.

616 F.3d 49

Lolita J. Semidey was on brief for petitioner.

Brianne Whelan Cohen, Trial Attorney, Office of Immigration Litigation, William C. Peachey, Assistant Director, and Tony West, Assistant Attorney General, Civil Division, were on brief for respondent.

616 F.3d 50

Before LYNCH, Chief Judge, BOUDIN and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

Petitioner Pablo Santana-Medina, a native and citizen of the Dominican Republic, seeks review of a Board of Immigration Appeals (BIA) decision denying his application for cancellation of removal under 8 U.S.C. § 1229b(b). That provision requires an alien to show, inter alia, “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)(D).

Santana-Medina claims that he satisfies this requirement because his thirteen-year-old son, a U.S. citizen, would face exceptional and extremely unusual hardship if Santana-Medina were deported. The BIA relied on the IJ's reasoning and rejected this argument. Santana-Medina now argues that the IJ applied an incorrect legal standard by failing to consider his son's best interests as the primary criterion in its analysis, which Santana-Medina claims is required under the United Nations Convention on the Rights of the Child.

By statute, orders regarding cancellation of removal are not subject to judicial review, see 8 U.S.C. § 1252(a)(2)(B)(i), unless the appeal raises a question of law or a constitutional claim, see 8 U.S.C. § 1252(a)(2)(D). Santana-Medina's legal claim on appeal was not made before the IJ or BIA, and his other claims merely challenge the IJ's factual determinations. We hold that we lack jurisdiction to review the denial of his application.

I.

In 1989, Santana-Medina arrived in the United States without inspection. He has lived in San Juan, Puerto Rico since 1990. In 1991, he married a U.S. citizen, and his then-wife filed an immediate relative visa petition for him. The visa was approved, and on December 8, 1992, Santana-Medina obtained conditional resident status.

On September 30, 1994, Santana-Medina and his then-wife filed a joint I-751 petition to remove the conditions on his permanent residence. However, numerous inconsistencies in Santana-Medina's interview with an immigration official on June 15, 1995 drew into question whether he and his wife had entered into a good faith marriage. On August 11, 1995, the I-751 petition was denied and Santana-Medina's status as a permanent resident was terminated.

In 1996, Santana-Medina had a son as a result of an affair with another woman. The son was born in Puerto Rico and is now in his early teens. He is a U.S. citizen and lives with his mother, step-father, and three half-siblings in San Juan.

On August 27, 2001, Santana-Medina's marriage ended, and on January 15, 2004, he filed an I-751 petition to remove the conditions on his residence; he filed this as a waiver application, claiming that he had entered into a good faith marriage. On October 5, 2006, the Department of Homeland Security (DHS) denied the petition and terminated Santana-Medina's conditional resident status.

On January 30, 2007, DHS initiated removal proceedings and filed a Notice to Appear, charging that Santana-Medina was removable because his conditional permanent resident status had been terminated. Santana-Medina responded by reapplying for a waiver under I-751, but at a October 12, 2007 hearing before an IJ, he confirmed that he would instead pursue only cancellation of removal and, in the alternative, voluntary departure.

616 F.3d 51

In two hearings before an IJ on May 14, 2008, and May 28, 2008, Santana-Medina argued that he was entitled to cancellation of removal because his son, who was eleven at the time, would face exceptional and extremely unusual hardship if Santana-Medina were deported. In support of his claim, Santana-Medina testified about his relationship with his son and introduced a report from a psychologist and a letter from a social worker at his...