De Herrera v. Attorney General of the United States

357 F. App'x 498
CourtCourt of Appeals for the Third Circuit
DecidedDecember 21, 2009
DocketNo. 08-3683
StatusPublished

This text of 357 F. App'x 498 (De Herrera 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
De Herrera v. Attorney General of the United States, 357 F. App'x 498 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

PER CURIAM.

Maritza Ramos De Herrera (“Ramos”), a thirty-four-year-old native and citizen of Guatemala, seeks review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). We will deny the petition for review.

I.

Ramos entered the United States in 1994 without inspection, and filed an application for asylum at that time. In 2006, the government served a Notice to Appear, and Ramos filed an updated asylum application. At a hearing before an Immigration Judge (“IJ”), Ramos conceded re-movability as an alien present without being admitted or paroled, and she pursued applications for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and cancellation of removal under 8 U.S.C. § 1229b(b)(l). The IJ denied relief, finding that Ramos failed to meet her burden of proof, but granted voluntary departure.

The BIA affirmed, issuing its own decision. The BIA explained that Ramos sought asylum based on a claim that she suffered past persecution on account of her membership in a particular social group, which she defined as “young Guatemalan females targeted for recruitment by the guerillas and who suffered persecution of a sexual nature if they refused to assist the guerillas.” While the evidence showed that Ramos was harassed and threatened by guerillas in Guatemala, she was never harmed physically or sexually, and thus the BIA concluded that Ramos is not a member of the group she is attempting to define, and that, furthermore, the alleged group lacks social visibility. The BIA held that Ramos failed to provide sufficient evidence that the threats she received rose to the level of persecution. The BIA also found insufficient evidence of a well-founded fear of future persecution. Even assuming that Ramos could establish the existence of her particular social group, the BIA held that Ramos is not currently a member of that group because she has matured in age since 1994, was never harmed by the guerrillas, and has not es[500]*500tablished that females of her age face the same threats as females of grade school age. The BIA also held that Ramos failed to meet the more stringent burden of proof for -withholding of removal, and did not establish under the CAT that she more likely than not faces torture in Guatemala.

Finally, the BIA held that Ramos did not meet her burden of proof for cancellation of removal, which she sought based on a claim that her six-year-old United States citizen son would suffer “exceptional and extremely unusual hardship” if removed. The BIA noted the record evidence of diminished educational opportunities, poor health care, a lower living standard, and crime in Guatemala, and also considered the child’s relative youth, ability to speak Spanish, good health, and family support in Guatemala. Based on this evidence, the BIA held that Ramos did not show an exceptional and extremely unusual hardship. Ramos timely filed a petition for review in this Court.

II.

We first consider our jurisdiction. We have jurisdiction to review the BIA’s final order of removal, including the denials of asylum, withholding of removal, and CAT relief. See 8 U.S.C. § 1252(a)(1). However, despite Ramos’s argument to the contrary, we lack jurisdiction to review the denial of cancellation of removal under § 1229b(b)(l). “This Court generally lacks jurisdiction to review discretionary decisions made under § 1229b regarding cancellation of removal.” Mendez-Reyes v. Att’y Gen., 428 F.3d 187, 189 (3d Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(B)(i)). We have held that a determination regarding the “exceptional and extremely unusual hardship” requirement is a “quintessential discretionary judgment.” Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.2003). Jurisdiction is retained in such cases only to consider “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D).

Ramos contends that she raises a “question of law” because the BIA held her claim to a “heightened legal standard” by “ignoring] the cumulative effect” of the hardships that her son would face. A review of Ramos’s briefing, however, reveals that her argument amounts to no more than an attempt to reargue the persuasiveness of the hardship evidence. Such an argument is not exempt from the jurisdictional bar. See Mendez-Moranchel, 338 F.3d at 179 (“[W]e lack jurisdiction to review the issue Mendez presents on appeal — whether the [BIA] and [IJ] were correct in determining that he does not meet the hardship requirements for cancellation of deportation.”). We see no indication that the BIA applied an incorrect legal standard here, and the BIA cannot be said to have applied an impermissibly “heightened” standard merely because it chose to deny relief after considering the record evidence before it.1 Thus, we lack jurisdiction to review the denial of cancellation of removal.

[501]*501III.

Turning to the removal order, where, as here, the BIA rendered its own decision, we review the BIA’s decision, not the IJ’s decision.2 See Wong v. Att’y Gen., 589 F.3d 225, 230 (3d Cir.2008). “The BIA’s conclusions regarding evidence of past persecution and the well-founded fear of persecution are findings of fact,” reviewed solely for “substantial evidence.” Chavar-ria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). Under the deferential substantial evidence standard, the BIA’s findings “must be upheld unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001).

We first address Ramos’s asylum claim. The Attorney General may grant asylum if the alien establishes that she is a “refugee,” which requires the alien to prove that she was persecuted in the past or has a well-founded fear of future persecution due to, inter alia, membership in a particular social group. 8 U.S.C. § 1158(b)(l)(B)(i). A “particular social group” refers to “a group of persons all of whom share a common, immutable characteristic.” Lukwago v. Ashcroft, 329 F.3d 157, 171 (3d Cir.2003) (quotation marks omitted). “[W]hatever the common characteristic that defines the group, it must be one that members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Id. (quotation marks omitted).

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Related

Pierre v. Attorney General of United States
528 F.3d 180 (Third Circuit, 2008)
Cooey v. Strickland
589 F.3d 210 (Sixth Circuit, 2009)
RECINAS
23 I. & N. Dec. 467 (Board of Immigration Appeals, 2002)
ANDAZOLA
23 I. & N. Dec. 319 (Board of Immigration Appeals, 2002)
MONREAL
23 I. & N. Dec. 56 (Board of Immigration Appeals, 2001)

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