FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 24, 2020 _________________________________ Christopher M. Wolpert Clerk of Court HUGO ANTONIO ROMERO,
Petitioner,
v. No. 19-9527 (Petition for Review) WILLIAM P. BARR, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT * _________________________________
Before LUCERO, McHUGH, and MORITZ, Circuit Judges. _________________________________
Hugo Romero, a native and citizen of El Salvador, seeks review of the Board
of Immigration Appeals’ (“BIA”) decision upholding the immigration judge’s (“IJ”)
denial of his application for cancellation of removal. We dismiss the petition for lack
of jurisdiction.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I
Romero was paroled into the United States in 2002 for the purpose of
resuming Temporary Protected Status (“TPS”). In 2008, police responded to an
incident between Romero and his partner, Juana Martinez. According to the police
report, Martinez told them that Romero hit her in the face with his hand and the
officers observed she had a swollen lip that appeared to have bled slightly. She also
demonstrated how Romero slapped her face with the back of his hand. For his part,
Romero told the officers that the incident was a “problema con mi[] familia,” and
demonstrated hitting Martinez with an open hand. When asked, in English, whether
he struck Martinez, Romero said “Si,” and repeated his previous demonstration of an
open-handed blow. Romero was arrested and charged with two counts of domestic
violence. He eventually pled guilty to disorderly conduct and the domestic violence
charges were dismissed.
In 2009, Romero’s TPS status was withdrawn, causing the Department of
Homeland Security (“DHS”) to charge Romero with removability. To support the
charge, DHS submitted evidence regarding Romero’s criminal history that included
the 2008 police report. Romero admitted the charge and requested discretionary
relief in the form of cancellation of removal under 8 U.S.C. § 1229b(b)(1). The IJ
gave Romero a form with instructions to get fingerprinted and warned that failure to
follow the instructions would result in denial of his application.
At the merits hearing in 2013, DHS informed the IJ that there were no results
because Romero failed to submit himself for fingerprints until the previous day. The
2 IJ denied Romero’s application because he failed to show good cause for not
complying with the order for fingerprinting. Romero appealed. While the appeal
was pending, the BIA published a decision holding that an IJ must specify the time
for biometrics compliance. As a result, the BIA remanded Romero’s case because
the IJ had not given Romero a specific deadline for fingerprinting.
At the merits hearing on remand, Romero testified that he and Martinez have
two children together; both were born in the United States. The children are healthy
teenagers who attend public schools. Martinez does not work outside the home and
Romero is the sole support of the family. At the hearing, Romero stated that if he
had to return to El Salvador, the children would remain in the United States with their
mother.
When asked by the IJ about the 2008 domestic violence incident, Romero said
he did not know what happened, but went on to say it “was only an argument.”
Romero denied hitting or slapping Martinez. After the IJ reminded Romero what the
police report said about Martinez’s injuries and his prior admission that he slapped
her, Romero testified that all he did was put his hand over Martinez’s mouth because
“she was saying bad words” to him, and his ring pinched her lip, which caused the
swelling and bleeding.
The IJ denied cancellation of removal on the grounds that Romero lacked good
moral character and his qualifying relatives would not suffer exceptional and extreme
hardship if he were removed from the United States. Romero appealed to the BIA.
3 The BIA dismissed Romero’s appeal. It concluded that: (1) the IJ’s
determination that Romero gave false testimony about the domestic violence incident
was not clearly erroneous; (2) the IJ did not violate Romero’s due process rights to a
full and fair hearing when it considered the 2008 police report; and (3) Romero failed
to show that his qualifying relatives would suffer hardship beyond the financial and
emotional hardship typically associated with removal.
This petition for review followed.
II
To establish eligibility for cancellation of removal, Romero bears the burden of
showing that, among other things, he was a person of good moral character during the
required ten years of continuous presence in the United States. 8 U.S.C. § 1229b(b)(1).
The good moral character requirement is at issue in this case. The IJ decided that
Romero lacked good moral character because he had provided false testimony concerning
the 2008 domestic violence incident at the cancellation of removal hearing “for the
purpose of obtaining [] immigration benefits.” See 8 U.S.C. § 1101(f)(6).
Romero raises two arguments on appeal which focus solely on the IJ’s finding that
Romero lacked good moral character under § 1229b(b)(1)(B). He argues that: (1) the
evidence was insufficient to establish that he gave false testimony because it was based,
in part, on hearsay in the 2008 police report; and (2) the IJ violated his due process rights
by relying on the same hearsay to determine that he gave false testimony. Romero does
4 not challenge the hardship finding—a separate and independent basis for the IJ’s denial
of cancellation of removal in this case. 1
Our first task is to determine our jurisdiction. We lack “jurisdiction to review . . .
any judgment regarding [cancellation of removal] under section . . . 1229b.” 8 U.S.C.
§ 1252(a)(2)(B)(i). The term “judgment” refers to the “discretionary aspects of a
decision concerning cancellation of removal, and . . . includes any underlying factual
determinations, as well as the determination of whether the petitioner’s removal from the
United States would result in exceptional and extremely unusual hardship to a qualifying
relative.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009) (citations and
quotation omitted). We do have jurisdiction, however, to review constitutional claims
and questions of law. Id.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 24, 2020 _________________________________ Christopher M. Wolpert Clerk of Court HUGO ANTONIO ROMERO,
Petitioner,
v. No. 19-9527 (Petition for Review) WILLIAM P. BARR, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT * _________________________________
Before LUCERO, McHUGH, and MORITZ, Circuit Judges. _________________________________
Hugo Romero, a native and citizen of El Salvador, seeks review of the Board
of Immigration Appeals’ (“BIA”) decision upholding the immigration judge’s (“IJ”)
denial of his application for cancellation of removal. We dismiss the petition for lack
of jurisdiction.
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I
Romero was paroled into the United States in 2002 for the purpose of
resuming Temporary Protected Status (“TPS”). In 2008, police responded to an
incident between Romero and his partner, Juana Martinez. According to the police
report, Martinez told them that Romero hit her in the face with his hand and the
officers observed she had a swollen lip that appeared to have bled slightly. She also
demonstrated how Romero slapped her face with the back of his hand. For his part,
Romero told the officers that the incident was a “problema con mi[] familia,” and
demonstrated hitting Martinez with an open hand. When asked, in English, whether
he struck Martinez, Romero said “Si,” and repeated his previous demonstration of an
open-handed blow. Romero was arrested and charged with two counts of domestic
violence. He eventually pled guilty to disorderly conduct and the domestic violence
charges were dismissed.
In 2009, Romero’s TPS status was withdrawn, causing the Department of
Homeland Security (“DHS”) to charge Romero with removability. To support the
charge, DHS submitted evidence regarding Romero’s criminal history that included
the 2008 police report. Romero admitted the charge and requested discretionary
relief in the form of cancellation of removal under 8 U.S.C. § 1229b(b)(1). The IJ
gave Romero a form with instructions to get fingerprinted and warned that failure to
follow the instructions would result in denial of his application.
At the merits hearing in 2013, DHS informed the IJ that there were no results
because Romero failed to submit himself for fingerprints until the previous day. The
2 IJ denied Romero’s application because he failed to show good cause for not
complying with the order for fingerprinting. Romero appealed. While the appeal
was pending, the BIA published a decision holding that an IJ must specify the time
for biometrics compliance. As a result, the BIA remanded Romero’s case because
the IJ had not given Romero a specific deadline for fingerprinting.
At the merits hearing on remand, Romero testified that he and Martinez have
two children together; both were born in the United States. The children are healthy
teenagers who attend public schools. Martinez does not work outside the home and
Romero is the sole support of the family. At the hearing, Romero stated that if he
had to return to El Salvador, the children would remain in the United States with their
mother.
When asked by the IJ about the 2008 domestic violence incident, Romero said
he did not know what happened, but went on to say it “was only an argument.”
Romero denied hitting or slapping Martinez. After the IJ reminded Romero what the
police report said about Martinez’s injuries and his prior admission that he slapped
her, Romero testified that all he did was put his hand over Martinez’s mouth because
“she was saying bad words” to him, and his ring pinched her lip, which caused the
swelling and bleeding.
The IJ denied cancellation of removal on the grounds that Romero lacked good
moral character and his qualifying relatives would not suffer exceptional and extreme
hardship if he were removed from the United States. Romero appealed to the BIA.
3 The BIA dismissed Romero’s appeal. It concluded that: (1) the IJ’s
determination that Romero gave false testimony about the domestic violence incident
was not clearly erroneous; (2) the IJ did not violate Romero’s due process rights to a
full and fair hearing when it considered the 2008 police report; and (3) Romero failed
to show that his qualifying relatives would suffer hardship beyond the financial and
emotional hardship typically associated with removal.
This petition for review followed.
II
To establish eligibility for cancellation of removal, Romero bears the burden of
showing that, among other things, he was a person of good moral character during the
required ten years of continuous presence in the United States. 8 U.S.C. § 1229b(b)(1).
The good moral character requirement is at issue in this case. The IJ decided that
Romero lacked good moral character because he had provided false testimony concerning
the 2008 domestic violence incident at the cancellation of removal hearing “for the
purpose of obtaining [] immigration benefits.” See 8 U.S.C. § 1101(f)(6).
Romero raises two arguments on appeal which focus solely on the IJ’s finding that
Romero lacked good moral character under § 1229b(b)(1)(B). He argues that: (1) the
evidence was insufficient to establish that he gave false testimony because it was based,
in part, on hearsay in the 2008 police report; and (2) the IJ violated his due process rights
by relying on the same hearsay to determine that he gave false testimony. Romero does
4 not challenge the hardship finding—a separate and independent basis for the IJ’s denial
of cancellation of removal in this case. 1
Our first task is to determine our jurisdiction. We lack “jurisdiction to review . . .
any judgment regarding [cancellation of removal] under section . . . 1229b.” 8 U.S.C.
§ 1252(a)(2)(B)(i). The term “judgment” refers to the “discretionary aspects of a
decision concerning cancellation of removal, and . . . includes any underlying factual
determinations, as well as the determination of whether the petitioner’s removal from the
United States would result in exceptional and extremely unusual hardship to a qualifying
relative.” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009) (citations and
quotation omitted). We do have jurisdiction, however, to review constitutional claims
and questions of law. Id. But because Romero’s arguments do not fall within either area,
we lack jurisdiction to review his appeal.
When Romero contends that the evidence was insufficient to establish that he gave
false testimony, he seeks our review of the IJ’s factual determination on this issue.
Underlying factual determinations in proceedings for cancellation of removal are beyond
our review. See id. at 828. The basis for the IJ’s determination was his evaluation of
Romero’s testimony, review of the 2008 police report, and consideration of Romero’s
changing story during the hearing. Romero’s attempts to recast this argument as a
question of law are unconvincing and he cites no authority requiring the IJ to discount
1 Even if Romero had raised this issue, we lack jurisdiction to review the determination of whether the petitioner’s removal from the United States would result in exceptional and extremely unusual hardship to a qualifying relative. See Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009). 5 hearsay in its determinations. All that remains is a fundamental disagreement with the
IJ’s credibility determination—a quintessential factual determination.
Romero has not raised a constitutional claim that would grant us jurisdiction. To
establish a due process claim, the “claimant must have a liberty or property interest in the
outcome of the proceedings.” Id. A petitioner in immigration proceedings “has no
liberty or property interest in obtaining purely discretionary relief.” Id. Because
cancellation of removal is a form of discretionary relief, “the only protections afforded
are the minimal procedural due process rights for an opportunity to be heard at a
meaningful time and in a meaningful manner.” Id. Romero’s claim that his due process
rights were violated by the use of hearsay in the cancellation of removal hearing does not
establish such a deprivation. Hearsay evidence is admissible in immigration proceedings
if it is probative and its use is fundamentally fair. See Bauge v. INS, 7 F.3d 1540, 1543
(10th Cir. 1993). We conclude that the IJ’s use of the report satisfies both requirements.
Attempting to circumvent the jurisdictional bar, Romero characterizes his claim as
a constitutional error amenable to our review. Yet he does not allege that he was denied
an opportunity to present his case before an unbiased IJ or that the IJ misinterpreted §
1229b. To the contrary, Romero was provided the police report in advance of the hearing
and had ample opportunity to explain the inconsistencies between the report and his
testimony before the IJ. His attempt to constitutionalize his claims is unavailing.
Without constitutional or legal issues, his claims challenging the IJ's discretionary
findings and credibility determination lie beyond the narrow category of issues we may
review.
6 III
This petition for review is DISMISSED for lack of jurisdiction.
Entered for the Court
Carlos F. Lucero Circuit Judge