Nancy Gonzalez-Valderrama v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 16, 2019
• Docket: 18-4138
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0528n.06

No. 18-4138

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED NANCY GONZALEZ-VALDERRAMA, ) Oct 16, 2019 ) 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: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.

PER CURIAM. Nancy Gonzalez-Valderrama petitions this court for review of an order of

the Board of Immigration Appeals (BIA) dismissing her appeal from the denial of her application

for cancellation of removal.

Gonzalez-Valderrama, a native and citizen of Mexico, entered the United States without

inspection in November 2002. In May 2013, after her conviction for driving under the influence,

the Department of Homeland Security served Gonzalez-Valderrama with a notice to appear in

removal proceedings, charging her 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). Gonzalez-Valderrama

appeared before an immigration judge (IJ) and conceded removability as charged. Gonzalez-

Valderrama subsequently applied for cancellation of removal on the basis that her removal would

result in exceptional and extremely unusual hardship to her United States citizen children. See 8

U.S.C. § 1229b(b)(1)(D). At the hearing on her application, Gonzalez-Valderrama testified that, No. 18-4138, Gonzalez-Valderrama v. Barr

if she were removed, she would take her two daughters with her to Mexico, where they would face

financial difficulties and crime and would not have access to the same levels of education and

health care as they do in the United States.

After the hearing, the IJ denied Gonzalez-Valderrama’s application for cancellation of

removal, finding that the hardship suffered by her children “would fall well within the range of

‘normal’ hardship experienced by any family forced to return to, and live[] in[,] Mexico” and

would not rise to the level of exceptional and extremely unusual hardship. Gonzalez-Valderrama

appealed the IJ’s decision. The BIA initially dismissed Gonzalez-Valderrama’s appeal for failure

to file a brief but granted her motion to reopen. After Gonzalez-Valderrama filed a brief, the BIA

dismissed the appeal, concluding that she had not demonstrated that her children would suffer

exceptional and extremely unusual hardship if they accompanied her to Mexico. This timely

petition for review followed.

To be eligible for cancellation of removal under Section 240A(b) of the Immigration and

Nationality Act (INA), the alien must establish “that removal would result in exceptional and

extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United

States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D). The

agency’s hardship determination is a discretionary decision outside the scope of our review. See

8 U.S.C. § 1252(a)(2)(B)(i); Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir. 2008). We

retain jurisdiction, however, to consider “constitutional claims or questions of law.” 8 U.S.C.

§ 1252(a)(2)(D); see also Montanez-Gonzalez v. Holder, 780 F.3d 720, 722 (6th Cir. 2015). In

support of her petition for review, Gonzalez-Valderrama asserts that, as a matter of statutory

interpretation, the best interests of the child must be a primary consideration in determining

whether an alien’s removal would result in exceptional and extremely unusual hardship to a

-2- No. 18-4138, Gonzalez-Valderrama v. Barr

qualifying child. We review this question of law de novo, but give substantial deference to the

BIA’s interpretation of the INA. Ventura-Reyes v. Lynch, 797 F.3d 348, 361 (6th Cir. 2015).

According to the government, we lack jurisdiction to consider Gonzalez-Valderrama’s

petition because she failed to present her “best interests of the child” arguments to the agency.

“[I]n an appeal from an order of removal, we have jurisdiction to review only those claims as to

which the alien has exhausted [her] administrative remedies, that is, those claims ‘properly

presented to the BIA and considered on their merits.’” Hasan v. Ashcroft, 397 F.3d 417, 419 (6th

Cir. 2005) (quoting Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004)); see 8 U.S.C.

§ 1252(d)(1) (allowing judicial review “only if . . . the alien has exhausted all administrative

remedies available as of right”). Gonzalez-Valderrama responds that determination and

application of the proper rule of law is not an issue subject to exhaustion, citing Kamen v. Kemper

Financial Services, Inc., 500 U.S. 90, 99 (1991). But the Kamen case did not involve a statutory

exhaustion requirement. This court has previously held that it lacked jurisdiction to consider

statutory and constitutional challenges to the BIA’s precedent interpreting “exceptional and

extremely unusual hardship” because the petitioner failed to raise them before the BIA. See

Montanez-Gonzalez, 780 F.3d at 724. We likewise lack jurisdiction to consider Gonzalez-

Valderrama’s “best interests of the child” claim because she failed to raise it before the BIA.

Even if we did have jurisdiction to consider Gonzalez-Valderrama’s “best interests of the

child” claim, it is without merit. Article 3(1) of the United Nations Convention on the Rights of

the Child (CRC), Nov. 1, 1989, 1577 U.N.T.S. 3, 28 I.L.M. 1448, states: “In all actions concerning

children, whether undertaken by public or private social welfare institutions, courts of law,

administrative authorities or legislative bodies, the best interests of the child shall be a primary

consideration.” 28 I.L.M. at 1459. Gonzalez-Valderrama contends that the CRC’s “best interests

of the child” standard constitutes customary international law and that the BIA’s interpretation of

-3- No. 18-4138, Gonzalez-Valderrama v. Barr

“exceptional and extremely unusual hardship” conflicts with that customary international law by

failing to identify the best interests of the child as a primary factor in the hardship determination.

Gonzalez-Valderrama relies on the maxim of statutory construction that “an act of

Congress ought never to be construed to violate the law of nations if any other possible

construction remains.” Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118

(1804). But the BIA’s interpretation of “exceptional and extremely unusual hardship” does not

run afoul of the CRC’s “best interests of the child” standard. In making the hardship determination,

the BIA considers several factors in the aggregate, including the age, health, and circumstances of

the qualifying relative. See In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63–64 (B.I.A. 2001). As

this court has previously recognized, when an alien seeks cancellation of removal on the basis that

her removal would result in exceptional and extremely unusual hardship to her qualifying child,

that “child’s ‘best interests’ are precisely the issue before the agency, in the sense that ‘best

interests’ are merely the converse of ‘hardship.’ In other words, the agency’s entire inquiry focuses

on the qualifying children, making their interests a ‘primary consideration’ in the cancellation-of-

removal analysis.” Bamaca-Perez v. Lynch, 670 F. App’x 892, 893 (6th Cir. 2016) (quoting

Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1012 (9th Cir. 2005)). The BIA does not, as

Gonzalez-Valderrama claims, exclude the best interests of the child from the hardship

determination.

For these reasons, we DISMISS Gonzalez-Valderrama’s petition for lack of jurisdiction.

-4-