Fernando Resendiz-Salgado v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 13, 2019
• Docket: 18-3639
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0118n.06

Case No. 18-3639

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 13, 2019 FERNANDO RESENDIZ-SALGADO, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) ) ____________________________________/

BEFORE: KEITH, MERRITT, and LARSEN, Circuit Judges.

DAMON J. KEITH, Circuit Judge. Petitioner Fernando Resendiz-Salgado (“Resendiz”)

seeks review of the Board of Immigration Appeals’ (“BIA”) final order, affirming the immigration

judge’s (“IJ”) denial of his application for cancellation of removal. We deny the petition for

review.

I.

Resendiz is a native and citizen of Mexico. In October 2012, the Department of Homeland

Security apprehended Resendiz and initiated removal proceedings against him by issuing a notice

to appear, charging him with removability as an alien present in the United States without being

admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). In a motion to change venue, Resendiz

conceded removability and subsequently applied for relief in the form of cancellation of removal. Case No. 18-3639, Resendiz-Salgado v. Barr

On August 2, 2016, Resendiz’s individual hearing was held before an IJ, who heard

testimony from Resendiz and his wife, and considered various documents in support of Resendiz’s

application. On September 1, 2017, the IJ issued a decision and order denying Resendiz’s

application for cancellation of removal. The IJ found that Resendiz failed to demonstrate good

moral character and that his removal would not result in exceptional and extremely unusual

hardship to his three United States citizen children.

Resendiz appealed the IJ’s decision to the BIA. On June 29, 2018, the BIA dismissed his

appeal, agreeing with the IJ’s finding that Resendiz had “not met his burden to prove that his

removal to Mexico will result in the requisite level of hardship … to any of his three young United

States citizen children.” For this reason, the BIA declined to address the good moral character

finding.

Resendiz now timely petitions this court for review of the BIA decision. Resendiz argues

the IJ and BIA violated his Fifth Amendment right to due process in determining that he failed to

demonstrate that his removal would result in exceptional and extremely unusual hardship. He

further argues the BIA violated his Fifth Amendment right to a full and fair hearing by failing to

address the IJ’s good moral character finding. The Government responds that we lack jurisdiction

over this appeal.

II.

Where the BIA reviews the IJ’s decision and issues a separate opinion, rather than

summarily affirming the IJ’s decision, we review the BIA’s decision as the final agency

determination. Al-Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009). “To the extent that the

BIA has adopted the IJ’s reasoning, however, we also review the IJ’s decision.” Id.

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To establish eligibility for cancellation of removal, Resendeiz was required to show:

(1) continuous physical presence in the United States for at least ten years; (2) good moral

character; (3) no convictions of qualifying criminal offenses; and (4) “exceptional and extremely

unusual hardship” to his “spouse, parent, or child, who is a citizen of the United States.” 8 U.S.C.

§ 1229b(b)(1). As a discretionary form of relief, we lack jurisdiction to review a denial of

cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B); see also Rodriguez v. Lynch, 614 F. App’x

266, 269 (6th Cir. 2015). We retain jurisdiction, however, to review “constitutional claims or

questions of law” as well as non-discretionary decisions. 8 U.S.C. § 1252(a)(2)(D); Aburto-Rocha

v. Mukasey, 535 F.3d 500, 502 (6th Cir. 2008). Resendiz argues this court has jurisdiction because

he presents a constitutional claim. Specifically, he argues the IJ and BIA violated his Fifth

Amendment due process rights “by failing to take into account that all factors, when considered as

a whole,” establish that his removal would result exceptional and extremely unusual hardship for

his three children. Pet’r’s Br. at 8.

Resendiz styled his argument as a constitutional claim. However, this is “merely an

attempt to circumvent Section 242(a)(2)(B)(i) of the INA, which clearly prohibits this court from

reviewing the IJ’s discretionary determination.” Lopez Gonon v. Holder, 341 F. App’x 88, 92 (6th

Cir. 2009). As such, we lack jurisdiction to review his challenge. This court previously rejected

and foreclosed an argument similar to the one Resendiz now puts forth. In Ettienne v. Holder, the

petitioner, seeking review from this court, argued the IJ and BIA failed to weigh hardship factors

in the aggregate as required by BIA precedent. 659 F.3d 513 (6th Cir. 2011). We explained that

such an argument could be within our jurisdiction to review, but only if the IJ had identified a

standard other than cumulative weighing. Id. at 518. This court found that the petitioner could

not credibly make such an argument, as the IJ twice identified the proper standard. Id. The court

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further concluded that while the Petitioner cloaked her argument as a question of law, she

ultimately argued that the IJ failed to consider certain facts specific to her case, a challenge which

this court lacks jurisdiction to review. Id. at 519.

Here, Resendiz also argues that the IJ and BIA failed to cumulatively weigh factors in his

hardship determination. As in Ettienne, the IJ in Resendiz’s removal proceedings identified the

proper standard. Before reaching a conclusion, the IJ stated “[t]his Court has weighed all the

evidence of record both individually and cumulatively on the issue of exceptional and extremely

unusual hardship.” The IJ then determined that Resendiz’s removal would not result in the requisite

hardship level, and the BIA affirmed. Resendiz neither identifies another standard the IJ used, nor

can he credibly do so. Therefore, as explained above, this court lacks jurisdiction to review the

IJ’s hardship determination.

Finally, we decline to address Resendiz’s challenge to the BIA’s finding that he failed to

establish good moral character, as it is unnecessary to our decision. Having failed to establish

extreme hardship, Resendiz cannot gain relief by showing good moral character anyway. See INS

v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (stating that courts and agencies are generally

not required to make findings on issues the determination of which are not necessary to

disposition).

III.

For the foregoing reasons, Resendiz’s petition for review is DENIED.

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