Cerna v. Gonzales

248 F. App'x 209

• Court: Court of Appeals for the Second Circuit
• Decided: September 19, 2007
• Docket: Nos. 05-3522-ag(L), 05-3524(con), 05-3523(con)
• Status: Published

Opinion

SUMMARY ORDER

Petitioners Jose Javier Cerna Ruiz and Marta Cerna seek review of a June 9, 2005 order of the BIA affirming the January 13, 2004 decision of Immigration Judge (“IJ”) Michael W. Strauss denying their applications for Cancellation of Removal under section 240A(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1229b(b). In re Cerna, No. A92 747 957 (B.I.A. Jun. 9, 2005), affg No. A92 747 957 (Immig. Ct. Hartford, Ct. Jan. 13, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Petitioners first claim that in determining “exceptional and extremely unusual hardship,” the IJ and BIA improperly relied on In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), rather than on In re Recinas, 23 I. & N. Dec. 467 (BIA 2002). That exact same argument was rejected by our court in Barco-Sandoval v. Gonzales, 496 F.3d 132, 136-39 (2d Cir.2007). Accordingly, that claim is not now colorable and must be dismissed for want of jurisdiction. Id.1

Petitioners contend that the BIA, in Monreal-Aguinaga, improperly abandoned a preexisting standard of relief, that is, that it improperly engaged in rule-making. This argument is colorable and statutory, hence we have jurisdiction to consider it. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326 (2d Cir.2006). It is, however, not meritorious, N.L.R.B. v. Bell Aerospace Co. Division of Textron, Inc., 416 U.S. 267, 294, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974) (finding that agency may use adjudication to announce a new principle, even when the principle involves a change from past policy), and must be denied. Petitioners do not raise the question of whether the BIA, in Monreal-Aguinaga, correctly interpreted the statutory definition of “exceptional and extremely unusual hardship,” and hence we do not consider it.²

We have considered all of petitioners’ claims and find them to be without merit. For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. The petition for a stay of removal is DENIED.

1 . The Cernas' Due Process claims are also not colorable and must be dismissed.

2 . The IJ found that Jose Cerna had not met the statutory requirement of ten years of continuous physical presence to be eligible for cancellation of removal under 8 U.S.C. § 1229b. The BIA did not discuss this ground for ineligibility. As it is not necessary to our decision, we do not consider it. Petitioners also argue that the IJ prejudiced the ability of their daughter, Nancy Cerna, to present her application for Cancellation of Removal. As Nancy Cerna is not before us, we also decline to consider this claim.