Munzon v. Attorney General of the United States

452 F. App'x 227
CourtCourt of Appeals for the Third Circuit
DecidedNovember 23, 2011
DocketNo. 11-2447
StatusPublished

This text of 452 F. App'x 227 (Munzon 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
Munzon v. Attorney General of the United States, 452 F. App'x 227 (3d Cir. 2011).

Opinion

[228]*228OPINION

PER CURIAM.

Ligia Mercedes Munzon and Luis Danilo Sanchez petition for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. We will deny the petition.

Munzon and Sanchez are citizens of Ecuador. They are not married, but they have three children together and are raising a fourth, who is Munzon’s from a previous relationship. All four children are United States citizens. The Government charged Munzon as removable for having entered without valid documents, see 8 U.S.C. § 1227(a)(1)(A), and charged Sanchez as removable for being present without inspection, see 8 U.S.C. § 1182(a)(6)(A)(i). Petitioners concede the charges but applied for cancellation of removal. Eligibility for that discretionary relief required them to show, inter alia, that their removal “would result in exceptional and extremely unusual hardship” to their children. 8 U.S.C. § 1229b(b)(l)(D).

Petitioners submitted documentary evidence and, along with two of their children, testified before the Immigration Judge (“IJ”). Petitioners claimed that their children would accompany them to Ecuador and would suffer hardship there because two of the children have vision problems, one had an allergic reaction to the water in Ecuador, and another has a skin condition. They further claimed that they might not be able to find employment in Ecuador and that their children would be deprived of educational opportunities available in the United States. The IJ denied their application on May 5, 2011. He considered the factors set forth in In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), and concluded that, although petitioners’ children undoubtedly will suffer some regrettable hardship if moved to Ecuador, that hardship will not be “exceptional and extremely unusual.”

Two days after that decision, petitioners filed a motion for reconsideration with the IJ requesting a “continuance” to present the testimony of a licensed clinical social worker named Priska Imberti. Petitioners asserted that Imberti had been “ready and able to testify, but was not called upon due to a breakdown in communications” between her and counsel. (A.R.36.) Petitioners also noted that they had filed Imberti’s expert report of record and that the report addressed the children’s psychological and emotional states. The IJ denied the motion on May 26, 2010, on the ground that “counsel has identified no error of law or fact in this court’s previous decision.” (A.R.32.)

In the meantime, petitioners had appealed to the BIA, which dismissed their appeal on May 5, 2011. The BIA perceived no error in the IJ’s assessment of hardship. It also denied relief on petitioners’ argument that the IJ overlooked Imberti’s report. The BIA reviewed the report itself and concluded that it did not contain evidence indicating that petitioners’ children face the requisite hardship. Finally, it rejected their request to remand the matter for the taking of Imberti’s testimony. They now petition for review.1

I.

As petitioners acknowledge, our jurisdiction to review the denial of cancellation of removal is limited. We lack jurisdiction to review discretionary decisions, including the Agency’s determination under 8 U.S.C. [229]*229§ 1229b(b)(l)(D) that petitioners did not show sufficient hardship. See 8 U.S.C. § 1252(a)(2)(B)(i); Patel v. Att’y Gen., 619 F.3d 230, 232 (3d Cir.2010). We retain jurisdiction to review colorable constitutional claims or questions of law. See 8 U.S.C. § 1252(a)(2)(D); Patel, 619 F.3d at 232. We do so de novo. See Duhaney v. Att’y Gen., 621 F.3d 340, 345 (3d Cir.2010). We conclude that petitioners’ brief raises arguments that we have jurisdiction to review, though we reject them on the merits.

Petitioners’ issue on appeal, broadly phrased, is that the IJ and BIA wrongfully denied them the opportunity to present Imberti’s testimony. That issue has three components. First, petitioners argue that the IJ and BIA erred in denying a “continuance” to present Imberti’s testimony because her absence was caused in part by the Immigration Court’s own scheduling error.2 Petitioners have not framed this argument in terms of due process, which we would retain jurisdiction to review, but it raises due process concerns. Even if we construe it to assert a due process claim, however, it lacks merit because petitioners have not shown that the IJ and BIA denied them a “ ‘reasonable opportunity to present evidence’ ” or that they suffered “ ‘substantial prejudice’ ” as a result. See Jarbough v. Att’y Gen., 483 F.3d 184, 192 (3d Cir.2007) (citations omitted).

The following background is relevant to this claim. Petitioners’ merits hearing was scheduled for May 5, 2010. According to petitioners’ motion for reconsideration, the Immigration Court Clerk called counsel’s office to reschedule on April 26, 2010.3 After speaking with counsel’s assistant, the Clerk rescheduled the hearing for May 17. Two or three days later, however, the Clerk called counsel’s office again, informed them that the rescheduling had been in error, and told them that the hearing would proceed on May 5 as originally scheduled.

The hearing in fact proceeded on that day. The IJ began the proceeding by apologizing for the scheduling confusion and asking petitioner’s counsel “Are we ready, Ms. First?,” to which she replied ‘Tes, Your Honor.” (A.R.79-80.) Counsel proceeded to examine both petitioners and the IJ asked her whether she had more witnesses. (Id. at 110-11.) She responded that she wanted to call two of the children and some “good moral character witnesses.” (Id. at 111.) After counsel examined the two children, the Government’s counsel agreed that good moral character was not at issue and the IJ stated: “Then we don’t have any more witnesses then, we’re done.” (Id. at 123.) Petitioners’ counsel never mentioned Im-berti or any other potential witnesses, and she did not elicit testimony about any psychological or emotional issues.

Petitioners argued before the BIA that these circumstances required a remand for the taking of Imberti’s testimony. The BIA disagreed for three reasons. First, it noted petitioners’ acknowledgment that Imberti’s absence was caused by a “breakdown of communications” between her and counsel. (BIA Dec. at 3) (A.R.5). Second, it noted that petitioners had not requested a continuance to present Imberti’s testimo[230]*230ny during the hearing. (Id.) Finally, it noted that petitioners never attempted to develop a record regarding psychological or emotional issues. (Id.)

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MONREAL
23 I. & N. Dec. 56 (Board of Immigration Appeals, 2001)

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Bluebook (online)
452 F. App'x 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/munzon-v-attorney-general-of-the-united-states-ca3-2011.