Robert Crew v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: October 7, 2010
• Docket: 10-1272
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 10-1272 ___________

ROBERT D. CREW, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES, Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A89 510 076) Immigration Judge: Honorable Susan Roy ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) October 6, 2010

Before: RENDELL, FISHER and GARTH, Circuit Judges

(Opinion filed October 7, 2010) ___________

OPINION ___________

PER CURIAM

Robert Crew petitions for review of a Board of Immigration Appeals (“BIA”)

order dismissing his appeal of an Immigration Judge’s (“IJ”) decision, which pretermitted

his application for cancellation of removal. We will deny the petition for review. Crew is a native and citizen of Jamaica who was admitted to the United States in

1990. The Department of Homeland Security issued a notice to appear in 2008 charging

that Crew was subject to removal because he had remained in the United States longer

than permitted. Crew conceded his removability and applied for cancellation of removal

for nonpermanent residents pursuant to 8 U.S.C. § 1229b(b). At his hearing before the IJ,

Crew also conceded that he was not eligible for cancellation of removal because he did

not have the requisite qualifying relative, but he stated that he had applied for relief in

order to challenge the statute in federal court.

The IJ ruled that Crew is statutorily ineligible for cancellation of removal. The IJ

explained that, in addition to establishing that he has been physically present in the United

States for a continuous period of not less than ten years, has been a person of good moral

character, and has not been convicted of certain offenses, Crew was required to show that

his removal would result in exceptional and extremely unusual hardship to his spouse,

parent, or child, who is a United States citizen or an alien lawfully admitted for permanent

residence. See 8 U.S.C. § 1229b(b)(1). The IJ acknowledged that Crew has a daughter,

but stated that she could not serve as a qualifying relative because she is too old. The IJ

explained that, under 8 U.S.C. § 1101(b)(1), a “child” is defined as an unmarried person

under 21 years of age. The IJ thus pretermitted Crew’s application for cancellation of

removal as a matter of law and ordered his removal to Jamaica.

The BIA dismissed Crew’s appeal. Noting that Crew did not allege any clear error

2 in the IJ’s factual findings, the BIA stated that the IJ correctly pretermitted Crew’s

application for cancellation of removal due to the lack of a qualifying relative. The BIA

agreed with the IJ that Crew’s daughter, who was 35 years old on the date of the hearing,

was not a “child” for purposes of cancellation of removal. Crew had argued on appeal

that the law should be changed to allow a child of any age to be considered a “child” for

purposes of the hardship requirement, but the BIA noted that it could only interpret the

laws as written by Congress. This petition for review followed.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA’s legal

determinations de novo, subject to the principles of deference articulated in Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Kaplun v.

Attorney General, 602 F.3d 260, 265 (3d Cir. 2010).

Crew concedes in his brief that the existing case law supports the BIA’s decision

that a “child” for purposes of the hardship requirement for cancellation of removal is a

person under 21 years of age. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145

(9th Cir. 2002) (applying the definition of “child” under 8 U.S.C. § 1101(b)(1) to the

hardship requirement set forth in 8 U.S.C. § 1229b(b)(1)(D)); Matter of Hugo Portillo-

Gutierrez, 25 I. & N. Dec. 148 (BIA 2009) (applying § 1101(b)(1) to determine whether a

stepchild was a qualifying relative for purposes of § 1229b(b)(1)(D)). Crew asserts that

the law should be changed to include all children and contends that his daughter is

capable of suffering hardship as result of her father’s removal. Such an argument,

3 however, is properly made to legislators, not to this Court.1

Crew also argues that his right to procedural due process was violated because his

application for cancellation of removal was pretermitted without allowing him to present

his case and establish the hardship that would result from his removal.2 Crew, however,

does not have a cognizable procedural due process claim because there is no liberty

interest at stake in an application for cancellation of removal, a discretionary form of

relief. See United States v. Torres, 383 F.3d 92, 104-05 (3d Cir. 2004) (stating aliens do

not have a due process interest in being considered for discretionary relief); Pinho v.

I.N.S., 249 F.3d 183, 189 (3d Cir. 2001) (holding change in eligibility criteria for

suspension of deportation, a discretionary form of relief, did not implicate due process

rights).

Accordingly, we will deny the petition for review.

1 1 The Government interprets Crew’s argument as asserting a violation of his right to 2 substantive due process. We do not read Crew’s brief as advancing such an argument. 2 1 Crew does not identify in his brief the hardship that would result from his removal.