Baez-Rufino v. Attorney General of the United States

429 F. App'x 136
CourtCourt of Appeals for the Third Circuit
DecidedMay 3, 2011
DocketNos. 10-1890, 10-3676
StatusPublished

This text of 429 F. App'x 136 (Baez-Rufino v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baez-Rufino v. Attorney General of the United States, 429 F. App'x 136 (3d Cir. 2011).

Opinion

OPINION

PER CURIAM.

Petitioner Heriberta Baez requests review of Board of Immigration Appeals (BIA) decisions 1) dismissing her appeal from an order denying cancellation of removal under 8 U.S.C. § 1229b(b) and 2) denying her motions to reopen and reconsider. She argues that the BIA improperly overlooked evidence, an error that violated her right to due process, and also abused its discretion in denying her motions. We consolidated both matters and will now deny the petitions for review and dismiss them in part.

I.

As we write primarily for the parties, we will recount only those facts germane to these petitions. Baez, a citizen and national of Mexico, conceded her removability, but applied for cancellation of removal predicated on the projected hardships that her children — two of whom are American citizens, born after Baez entered the country — would face if they accompanied her to Mexico.1

At a hearing in front of Immigration Judge (IJ) Margaret Reichenberg, Baez spoke of the limited opportunities her older daughter, Daisy, would have to continue her education and preserve her physical and emotional well-being in the town of San Pedro Teyuca,2 where the family would likely relocate if removed. She worried in particular that Daisy, who was doing quite well in her American school, might struggle in a foreign environment. Baez emphasized issues of health care, [138]*138school costs, housing conditions, the language barrier, and her own tenuous financial situation. See, e.g., Certified Administrative Record (A.) 274, 278-79, 281-83, 323, 331.

Baez also made passing mention of increasing violence in Mexico, explaining that “[t]here’s a lot of violence for the children ... [t]hey kill each other there.” A.292-93. Counsel further addressed the matter in his closing statement, and several of the submissions before the IJ dealt with the ongoing chaos fueled by dueling government and narco-forces.

Ultimately, the IJ found that Baez had failed to demonstrate exceptional hardship. A.230. She summarized Baez’s “biggest fear” as being that Daisy “[would] no longer study and that there is a lot of violence for children in Mexico.” A.226. The IJ acknowledged that conditions in Mexico, and particularly in the region in question, were not comparable to those in the United States, see, e.g., A.229, but concluded that this did not amount to the requisite “exceptional” hardship. A.229-30. Hence, the IJ denied relief.

Baez appealed. She now cast her case as being primarily about

a single mother who is terribly afraid that if removed she and her children would go live in one of the most violent countries in the world today. The violence in Mexico sadly has become so out of control that it is spilling over into the United States, mostly in communities adjacent to the U.S./Mexico border.

A.185. The BIA dismissed the appeal, “agreeing] with the [IJ] that the respondent failed to show that her removal would result in exceptional and extremely unusual hardship to either of her two United States citizen children.” A.177. Thus, “considering the factors of this case cumulatively, [Baez] failed to demonstrate that either of her children will suffer exceptional and extremely unusual hardship if they accompany her to Mexico.” A.178. The BIA did not explicitly mention the uptick of violence in the country.

Baez filed a petition for review with this Court. In the meantime, she moved for reconsideration and to reopen proceedings with the BIA. With regard to her motion for reconsideration, Baez argued that the BIA’s decision “fail[ed] to address the impact of the ongoing violence in Mexico and its effect on” her children; Mexico was “simply too unsafe to remove innocent children incapable of defending themselves from drug traffickers, kidnappers, pedophile’s [sic] and other sexual predators.” A.157, 159. With regard to her motion to reopen, she argued that “incidents of violence in Mexico have increased exponentially” in the time since the BIA’s original decision, A.14, and attached many voluminous exhibits.

The BIA denied both motions. In doing so, it explained why the evidence of violence was deficient and would not affect its cancellation-of-removal calculus: no mention was made of violence occurring in or around San Pedro Teyuca, Daisy had not been exposed to violence during her two trips to Mexico, and family members in San Pedro Teyuca had not suffered violence. Viewed in its totality, the evidence “was insufficient to establish that these children will likely become victims of such violence, or will suffer hardship rising to the level that is exceptional and extremely unusual in nature given such incidents, even when considered in conjunction with the other hardship evidence presented.” A.5. With regard to the motion to reopen, the BIA reviewed the new evidence, concluded that it was similarly deficient, and declined to recommence proceedings. A.5. Baez again petitioned this Court for review.

[139]*139II.

We have jurisdiction to review final BIA orders under 8 U.S.C. § 1252(a)(1). But as the parties recognize, that jurisdiction is restricted by 8 U.S.C. § 1252(a)(2)(B)(i), which limits judicial review of discretionary agency actions. Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003); see also Patel v. Att’y Gen., 619 F.3d 230, 232 (3d Cir.2010) (“We lack jurisdiction to review discretionary decisions made pursuant to 8 U.S.C. § 1229b, including ‘exceptional and extremely unusual’ hardship determinations.”). However, we may still review colorable constitutional claims or questions of law. Patel, 619 F.3d at 232. A fundamentally discretionary claim in legal clothing does not grant jurisdiction that would otherwise be proscribed. Pareja v. Att’y Gen., 615 F.3d 180, 186-87 (3d Cir.2010).

We review denials of motions to reopen and motions for reconsideration under an abuse of discretion standard. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). “Discretionary decisions of the BIA will not be disturbed unless they are found to be arbitrary, ‘irrational or contrary to law.’ ” Tipu v. INS, 20 F.3d 580, 582 (3d Cir.1994) (citations omitted).

HI.

Baez argues that the BIA violated due process by failing to consider the evidence of violence in Mexico.3

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