United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued March 27, 2006

Decided June 12, 2006

Before

Hon. RICHARD D. CUDAHY, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 05-2500

DANIEL LARA,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

No. A74 542 304

O R D E R

Mexican citizen Daniel Lara applied for cancellation of removal under 8

U.S.C. § 1229b(b), claiming that his removal would result in exceptional hardship to

his wife and United States-citizen children. After a hearing, an Immigration Judge

denied his application because he failed to meet § 1229b(b)(1)(A), which requires

that Lara be physically present in the United States for the ten years immediately

preceding his application. The Board of Immigration Appeals affirmed and we deny

Lara’s petition for review.

Lara entered the country from Mexico without inspection in approximately

1978, and he married his wife in Mexico in either 1992 or 1993. In 1996 Lara

applied to adjust his status based on his (incorrect) belief that he qualified as a

legal resident under 8 U.S.C. § 1259, which allows illegal aliens who entered the

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-2500 Page 2

United States before 1972 to register as legal residents. In his application he stated

that he last entered the United States in June 1992. His application was denied,

which prompted the Immigration and Naturalization Service to initiate removal

proceedings. Lara admitted the facts contained in the Notice to Appear and

conceded removability, but sought cancellation of removal under 8 U.S.C. 1229b(b)

based on the length of time he had been in the United States and the hardship that

his removal would cause for his children. Lara presented social security statements

showing that he earned income in the United States for every year since

1988—except 1992. The IJ held a hearing to determine whether Lara could

establish continuous residence throughout the ten-year period. 

To determine whether an alien is eligible for cancellation of removal under

§ 1229b(b), the IJ must consider if the alien: (1) has maintained a continuous,

physical presence in the United States for the ten years preceding the application;

(2) has good moral character; (3) has not been convicted of specified offenses; and (4)

established that removal would result in “exceptional and extremely unusual

hardship” to his United States-citizen family members. § 1229b(b); MartinezMaldonado v. Gonzales, 437 F.3d 679, 682 (7th Cir. 2006). In addition, the alien

can establish a continuous presence even if he leaves the United States for less than

90 days at one time or less than 180 days in aggregate. § 1229b(d)(2); Cuellar Lopez

v. Gonzales, 427 F.3d 492, 494 (7th Cir. 2005).

The IJ led the questioning at the hearing and focused on whether Lara could

show a physical presence during 1992. Lara responded to questions about his

employment during 1992 by explaining that he did not have any income listed on

his social security statement that year because he was performing “side jobs” for

cash that he did not report to the government. Lara also testified that he went to

Mexico for several weeks to get married, but he was not certain about whether that

was in 1992 or 1993. The IJ then questioned Lara’s wife about the date of their

marriage and how long Lara stayed in Mexico for the marriage. She testified that

Lara left the United States so they could get married in Mexico at the end of 1993,

and that Lara returned in early 1994. His wife could not testify about how much

time Lara spent in Mexico during 1992.

The IJ denied Lara’s application for cancellation, reasoning “that there are

too many discrepancies in the testimony of respondent and his wife to establish the

10 years continuous physical presence in the United States, by testimony alone.” 

The IJ also stated that Lara failed to “corroborate his physical presence through

documentary evidence.” The IJ noted that Lara’s 1996 application for adjustment of

status stated that his last entry to the United States was in June 1992, which

contradicted his testimony that he entered in approximately 1978. The IJ further

explained that Lara gave inconsistent testimony about his employment, marriage,

and trips to Mexico during 1992 and that Lara was not able to supply rent receipts,
No. 05-2500 Page 3

employment records, or other “indicia of continuous presence” for that year. 

Finally, the IJ pointed out that Lara’s wife testified that they were married at the

end of 1993 and returned in early 1994, but Lara could not supply employment

records to show when he left or returned to the United States for his marriage. 

Lara appealed the IJ’s decision to the BIA, arguing that the IJ violated his

right to due process by limiting the focus of his hearing to the issue of his

continuous presence in the United States The BIA found “no error in the

Immigration Judge’s decision to limit the hearing to the issue of continuous

presence, in light of the obvious inconsistences” between Lara’s application for

cancellation of removal and his 1996 application for adjustment of status. The BIA

also agreed with the IJ that the inconsistencies in Lara’s testimony “raise serious

questions regarding the veracity” of his claim that he remained in the United States

for ten continuous years. Accordingly, the BIA dismissed Lara’s appeal.

II. Analysis

On appeal, Lara devotes his entire brief to contending that the IJ failed to

provide him a “full and fair hearing.” As a threshold matter, the government

asserts that we lack jurisdiction to review a denial of cancellation of removal

because Lara does not have a liberty interest in cancellation of removal. See

Martinez-Maldonado, 437 F.3d at 682; Ali v. Ashcroft, 395 F.3d 722, 732 (7th Cir.

2005); see also Mohammed v. Ahscroft, 261 F.3d 1244, 1250-51 (11th Cir. 2001)

(finding “no constitutionally-protected right to discretionary relief from removal”);

Huicochea-Gomez v. INS, 237 F.3d 696, 700 (6th Cir. 2001) (same). Lara has not

responded to this argument.

According to 8 U.S.C. § 1252(a)(2)(B)(i), “no court shall have jurisdiction to

review . . . any judgment regarding the granting of relief under section . . . 1229b

[cancellation of removal] . . . of this title.” See Cevilla v. Gonzales, ___ F.3d. ___, No.

05-2387, 2006 WL 1133148, at *3 (7th Cir. May 1, 2006). Thus, we are barred from

reviewing the Attorney General’s decision to deny cancellation of removal unless a

constitutional claim or question is raised in the petition for review. Id. In his

petition, Lara reiterates that he was denied his constitutional right to due process

because the IJ did not give him a full and fair opportunity to present his case. But

we have cautioned petitioners against asserting open-ended due process arguments

in removal hearings, Rehman v. Gonzales, 441 F.3d 506, 508-09 (7th Cir. 2006), and

Lara has not alleged that he was prevented from presenting evidence to the IJ. 

Moreover, a petitioner does not have a right to due process in a proceeding that can

provide only discretionary relief. Cevilla, ___ F.3d. ___, 2006 WL 1133148, at *3. 

Hence, his due process argument must fail.

Accordingly, we DENY the petition.