Israel Sarabia-Arredondo v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 26, 2021
• Docket: 20-12753
• Status: Unpublished

Opinion

USCA11 Case: 20-12753 Date Filed: 04/26/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12753 Non-Argument Calendar ________________________

Agency No. A216-031-542

ISRAEL SARABIA-ARREDONDO, a.k.a. Israel Sarabia-Arredondo Arredondo a.k.a. Israel Arredondo,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(April 26, 2021)

Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM: USCA11 Case: 20-12753 Date Filed: 04/26/2021 Page: 2 of 9

Israel Sarabia-Arredondo 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 under the Immigration and Nationality Act

(INA). Sarabia-Arredondo is a native and citizen of Mexico, who arrived in the

United States without being admitted or paroled. In 2017, he was served with a

Notice to Appear that charged him with removability pursuant to INA

§ 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).

Sarabia-Arredondo conceded removability and submitted an application for

cancellation of removal. In support of that application, he alleged that he had been

in the United States since 2002, that he was a person of good moral character, and

that his two daughters were qualifying relatives. In a prehearing memorandum, he

alleged that he entered the United States in 1991, that he was a person of good

moral character, that he had only been charged or convicted of misdemeanor traffic

offenses, and that his removal would result in “exceptional and extremely unusual

hardship” to his two daughters. To that last point, Sarabia-Arredondo alleged that,

if he were removed, his daughters would suffer from a lower standard of living,

diminished educational opportunities, and poor economic conditions.

The IJ found that Sarabia-Arredondo’s allegations were insufficient to

establish exceptional and extremely unusual hardship, and found Sarabia-

Arredondo removable. The IJ granted voluntary departure with a $20,000 bond.

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Sarabia-Arredondo appealed to the BIA. The BIA noted that it reviews findings of

fact for clear error and all other issues, including legal issues, de novo. In the next

sentence, the BIA stated that it discerned “no clear error” in the IJ’s determination

that Sarabia-Arredondo was ineligible for cancellation of removal. Accordingly,

the BIA dismissed Sarabia-Arredondo’s appeal and reinstated the voluntary

departure order. The BIA further warned that the grant of voluntary departure

would automatically terminate if Sarabia-Arredondo, prior to departing, filed a

judicial challenge to its final order. Sarabia-Arredondo now petitions us for

review.

Sarabia-Arredondo argues first that the “exceptional and extremely unusual

hardship” standard for cancellation of removal is void for vagueness. Second, he

argues that the BIA erred by reviewing the IJ’s determination that he was ineligible

for cancellation of removal for clear error. Last, Sarabia-Arredondo argues that the

regulation, 8 C.F.R. § 1240.26(i), which automatically terminates a voluntary

departure order when a person subject to removal petitions for review, is ultra vires

of the voluntary departure statute, INA § 240B, 8 U.S.C. § 1229c.

I.

We review only the decision of the BIA, except to the extent that the BIA

expressly adopted or explicitly agreed with the opinion of the IJ. Ayala v. U.S.

Att’y Gen., 605 F.3d 941, 947–48 (11th Cir. 2010). We determine whether we

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have subject matter jurisdiction de novo. Arias v. U.S. Att’y Gen., 482 F.3d 1281,

1283 (11th Cir. 2007) (per curiam). Constitutional challenges and questions of law

are reviewed de novo. Zhou Hua Zhu v. U.S. Att’y Gen., 703 F.3d 1303, 1307

(11th Cir. 2013).

The INA provides that an order of removal is not judicially reviewable

where that order is against a person subject to removal who has applied for

cancellation of removal under INA § 240A(b), 8 U.S.C. § 1229b(b). See INA

§ 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). However, notwithstanding this

prohibition, we retain jurisdiction to review constitutional claims or questions of

law raised upon a petition for review. See Patel v. U.S. Att’y Gen., 971 F.3d 1258,

1262 (11th Cir. 2020) (en banc). Here, we have jurisdiction to review Sarabia-

Arredondo’s constitutional and legal questions. See id.

II.

We start with Sarabia-Arredondo’s argument that the “exceptional and

extremely unusual hardship” standard for cancellation of removal is void for

vagueness, and therefore violates his Fifth Amendment right to due process. There

is no constitutional right to discretionary relief such as cancellation of removal.

Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008). We have

repeatedly held that “the failure to receive relief that is purely discretionary in

nature does not amount to a deprivation of a liberty interest.” Id. (quoting Garcia

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v. Att’y Gen., 329 F.3d 1217, 1224 (11th Cir. 2003) (per curiam)); accord Meija

Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir. 1999). Accordingly, no due

process violation can arise from the decision not to grant cancellation of removal.

Sarabia-Arredondo cannot prevail on his due process claim because he “does not

enjoy a constitutionally protected liberty interest” in cancellation of removal.1

Meija Rodriguez, 178 F.3d at 1146.

III.

Next, we consider whether the BIA applied the wrong legal standard. The

BIA reviews questions of law de novo and findings of fact for clear error. See 8

C.F.R. § 1003.1(d)(3)(i)–(ii). We have held that the BIA committed legal error by

reviewing the IJ’s factual determinations de novo. 2 See Zhou Hua Zhu, 703 F.3d at

1314–16 (remanding in order for the BIA to determine whether the IJ’s factual

findings were clearly erroneous).

Here, the BIA’s decision correctly indicated that a de novo standard of

review applied to the IJ’s legal determinations and that a clear-error standard of

review applied to the IJ’s factual determinations. However, the BIA also stated

1 To the extent that Sarabia-Arredondo argues that it is improper to distinguish constitutional protections during the removal portion and the relief portion of removal proceedings, absent an intervening Supreme Court or en banc decision, we are bound by our prior precedent. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). 2 Similarly, the Attorney General remanded a BIA decision because the BIA had failed to conduct a de novo review of the applicant’s asylum claim, and instead determined in one sentence that the IJ had committed “no clear error” in its determination that the applicant had established persecution. In re A-C-A-A-, 28 I. & N. Dec. 84, 84–85, 95–96 (A.G. 2020). 5 USCA11 Case: 20-12753 Date Filed: 04/26/2021 Page: 6 of 9

that it discerned “no clear error” in the IJ’s determination that Sarabia-Arredondo

was ineligible for cancellation of removal. But the BIA went on to explain that

Sarabia-Arredondo had failed to demonstrate that his daughters would suffer from

exceptional and extremely unusual hardship due to his removal because the

hardship was not substantially beyond what was expected. The BIA elaborated

that diminished economic and educational opportunities would generally be

insufficient to support a finding of exceptional and extremely unusual hardship as

required for cancellation of removal. Thus, while the BIA stated that it

“discern[ed] no clear error” in the IJ’s determination, it did in fact review Sarabia-

Arredondo’s legal claim de novo. Accordingly, the BIA did not err.

IV.

Finally, we determine whether 8 C.F.R. § 1240.26(i), which automatically

terminates a voluntary departure order when a person subject to removal petitions

for review, is beyond the scope of the Attorney General’s authority under the

voluntary departure statute. The Attorney General may allow a person subject to

removal to voluntary depart the United States at the conclusion of removal

proceedings in lieu of removal. INA § 240B(b)(1), 8 U.S.C. § 1229c(b)(1). An IJ

may enter an order granting voluntary departure at the conclusion of the

immigration proceedings if the petitioner: (1) has been present in the United States

for at least one year; (2) had good moral character for the preceding five years; (3)

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was not removable under INA § 237(a)(2)(A)(iii) or (a)(4), 8 U.S.C.

§ 1227(a)(2)(A)(iii); and (4) he has established by clear and convincing evidence

that he has the means to depart the United States and that he intends to do so. INA

§ 240B(b)(1), 8 U.S.C. § 1229c(b)(1). The Attorney General may limit voluntary

departure eligibility for “any class or classes of” persons subject to removal. INA

§ 240B(e), 8 U.S.C. § 1229c(e).

A petitioner has a right to seek judicial review of an order of removal. See

INA § 242, 8 U.S.C. § 1252. However, under 8 C.F.R. § 1240.26(i), if the person

subject to removal files a petition for review prior to departing the United States, a

grant of voluntary departure is automatically terminated. Under the regulation, a

person subject to removal who is granted post-conclusion voluntary departure will

not be deemed to have been removed if the person departs the United States no

later than 30 days after he files a petition for review. 8 C.F.R. § 1240.26(i). A

petitioner may seek review from outside of the United States. See Jian Le Lin v.

U.S. Att’y Gen., 681 F.3d 1236, 1238 (11th Cir. 2012).

To determine whether an agency’s regulation exceeds its statutory authority,

we apply the two-step test articulated in Chevron U.S.A., Inc. v. Nat. Res. Def.

Council, Inc., 467 U.S. 837 (1984); see De Sandoval v. U.S. Att’y Gen., 440 F.3d

1276, 1278–79 (11th Cir. 2006). At the first step, we determine whether Congress

has directly spoken to the precise question at issue. De Sandoval, 440 F.3d at

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1278–79. We will set aside a regulation if it conflicts with Congress’s express

purpose. Id. However, if Congress has not addressed the issue, or if the statute is

ambiguous, the second step is to determine whether the regulation is “based on a

permissible construction of the statute.” Id.

First, 8 C.F.R. § 1240.26(i) does not deprive a person subject to removal of

judicial review because that person can still seek a petition of review following his

voluntary departure from the United States. See 8 C.F.R. § 1240.26(i); Jian Le

Lin, 681 F.3d at 1238. Furthermore, the regulation does not exceed the Attorney

General’s statutory authority. Congress has not directly spoken as to whether

person subject to removal’s petition for review may automatically terminate an

order of voluntary departure. However, Congress has given the Attorney General

the authority and discretion to grant voluntary departure. See INA § 240B(b)(1), 8

U.S.C. § 1229c(b)(1). And Congress has given the Attorney General the authority

to limit eligibility for voluntary departure. See INA § 240B(e), 8 U.S.C.

§ 1229c(e). This means that a grant of voluntary departure is discretionary and

persons subject to removable are not entitled to it. Therefore, 8 C.F.R.

§ 1240.26(i) is a permissible exercise of the Attorney General’s discretion to grant

or limit voluntary departure and does not exceed INA § 240B, 8 U.S.C. § 1229c.

See De Sandoval, 440 F.3d at 1278–79. Accordingly, we deny Sarabia-

Arredondo’s petition for review.

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PETITION DENIED.