2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-11-2013

Jose Cheley v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3428

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 12-3428 and 13-1684

___________

JOSE ANTONIO CHELEY,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A070-904-044)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 9, 2013

Before: SMITH, GREENAWAY, JR. and SHWARTZ, Circuit Judges

(Opinion filed: October 11, 2013 )

___________

OPINION

___________

PER CURIAM

In these consolidated cases, petitioner Jose Cheley petitions for review of the Board of 

Immigration Appeals’ orders (1) dismissing his appeal of an Immigration Judge’s order 

denying his application for cancellation of removal, and (2) denying his subsequent motion to 
2

reopen proceedings. For the reasons set forth below, we will dismiss the petitions in part and 

deny them in part.

Cheley, a citizen of Guatemala, arrived in the United States in 1990, and subsequently 

applied for asylum. In 2008, the Department of Homeland Security charged him with being 

removable under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. 

§ 1182(a)(7)(A)(i)(I), as an alien who, at the time of his application for admission, was not in 

possession of a valid, unexpired immigrant visa. 

Cheley conceded that he was removable as charged, withdrew his asylum application, 

and applied for cancellation of removal. See generally 8 U.S.C. § 1229b(b)(1). Cheley argued 

that his removal would result in exceptional and extremely unusual hardship to his three United

States citizen children, and especially his daughter, Ariany, who has been diagnosed with 

ADHD. An Immigration Judge (IJ) denied Cheley’s application, concluding that Cheley had 

failed to satisfy the hardship standard for cancellation of removal. Cheley then appealed to the 

Board of Immigration Appeals (BIA), which dismissed the appeal. Cheley filed a timely 

petition for review to this Court.

Cheley also filed a motion to reopen with the BIA. In support of his motion, he 

submitted additional documentation concerning Ariany’s ADHD, school documents showing 

that Ariany received special-education services, background articles concerning crime and 

poverty in Guatemala, and the 2011 State Department Report for Guatemala. The BIA denied 

Cheley’s motion, concluding both that the evidence that Cheley had submitted appeared to 

have been previously available and that Cheley had failed to carry his burden of showing that 

his new evidence would likely change the result of the underlying proceeding. Cheley then 
3

filed a timely petition for review to this Court as to that order.

We have jurisdiction pursuant to 8 U.S.C. § 1252. In reviewing Cheley’s request for 

cancellation of removal, we may consider constitutional claims and questions of law, but not 

factual or discretionary determinations. Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 

2010). The same limitations apply to our review of Cheley’s motion to reopen. See Omar v. 

Mukasey, 517 F.3d 647, 650 (2d Cir. 2008) (“we cannot, on a petition for review of a motion 

to reopen, exercise jurisdiction over that which we would not have had jurisdiction to review 

on direct appeal”). We review legal questions de novo, Arca-Pineda v. Att’y Gen., 527 F.3d 

101, 103 (3d Cir. 2008), and, because the BIA issued its own opinions, we review its decisions

rather than those of the IJ, see Roye v. Att’y Gen., 693 F.3d 333, 339 (3d Cir. 2012).

Section 1252’s jurisdictional limitation is critical in this case, because it precludes us 

from reviewing Cheley’s various arguments that purport to show that the BIA incorrectly 

weighed the evidence in concluding that he had not shown that his removal would result in an 

exceptional and extremely unusual hardship. See Cospito v. Att’y Gen., 539 F.3d 166, 170 (3d 

Cir. 2008). Instead, we are limited to reviewing his legal and constitutional claims. See Patel 

v. Att’y Gen., 619 F.3d 230, 232 (3d Cir. 2010).

1

Among his claims that are properly before us, Cheley first argues that the IJ’s behavior 

violated his due process rights. Cheley focuses on two statements from the IJ during a 

 1 Cheley cites case law from the Second Circuit suggesting that we should consider whether 

the BIA’s decision was “made without rational justification.” Mendez v. Holder, 566 F.3d 

316, 322 (2d Cir. 2009) (internal quotation marks omitted). However, the arguments that 

Cheley presents that he says show that the BIA’s decision was irrational are materially 

indistinguishable from those arguments that we have previously deemed to be beyond our 

review, see, e.g., Patel, 619 F.3d at 232, and we consequently lack jurisdiction to review these 

claims.
4

preliminary hearing. Initially, after being confronted with a diffuse set of problems, including 

Cheley’s failure to get his fingerprints taken, the fact that documents filed by Cheley had been 

misplaced by court staff, and the absence of his interpreter, the IJ fantasized about quitting his 

job. Then, he expressed his general unwillingness to postpone cancellation-of-removal cases 

because, he explained, it was unseemly for applicants to wait for misfortune to befall their 

family members in the hopes that it would advance their applications.

It is true that an IJ’s statements and behavior while conducting a hearing may rise to the 

level of a due process violation where the IJ insults or belittles a petitioner. See, e.g., Wang v. 

Att’y Gen., 423 F.3d 260, 265-69 (3d Cir. 2005). However, while we do not approve of the 

IJ’s comments here, we are satisfied that Cheley’s due process rights were not violated. As an 

initial matter, the IJ’s comments were directed toward Cheley only in part — he was frustrated 

about Cheley’s apparent tardiness in pursuing fingerprinting, but he was also frustrated at his 

staff. Likewise, his statement about postponing cancellation-of-removal hearings concerned 

the behavior of litigants that the IJ had confronted in past cases, and we are convinced that, 

contrary to Cheley’s contention, the IJ was not expressing hostility toward cancellation of 

removal generally. Ultimately, the IJ did continue the hearing and, at the merits hearing three 

months later, behaved entirely appropriately and did nothing to affect the outcome of the 

proceedings. Thus, “in the context of the record as a whole there is insufficient evidence to 

conclude that the overall proceedings were biased in violation of [Cheley’s] right to due 

process.” Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003). 

Cheley next argues that the IJ wrongly excluded documentary evidence concerning his 

son’s asthma. This contention is belied by the record. In his opinion, the IJ noted that “there is 
5

some evidence in the record with regard to [Cheley’s son] to the effect that he suffers from 

asthma.” Thus, contrary to Cheley’s argument, the IJ admitted this evidence — but concluded 

that it did not entitle Cheley to relief.

Cheley also argues that the BIA improperly failed to adhere to its own previous 

opinions. However, the opinions that Cheley primarily focuses on were “unpublished, singlemember BIA decisions [that] have no precedential value, [and that] do not bind the BIA.” De 

Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 350 (3d Cir. 2010). Further, insofar as Cheley 

argues that his circumstances demonstrated exceptional and extremely unusual hardship as 

compared to other BIA cases, and that if the agency had correctly evaluated the evidence, it 

would have granted his application, this is the sort of factual argument that we lack jurisdiction 

to review. See Ettienne v. Holder, 659 F.3d 513, 518-19 (6th Cir. 2011).

2

 

Cheley next contends that, because his daughter receives special-education services 

under the IDEA, his removal would, as a matter of law, necessarily create an exceptional and 

extremely unusual hardship. Cheley has cited no authority in support of this novel theory, and 

we have found none. Cf. Camarillo-Jose v. Holder, 676 F.3d 1140, 1143 (8th Cir. 2012) 

(denying petition for review notwithstanding child’s special-education services). Indeed, any 

such rule would conflict with the fact-specific analysis that the BIA employs. See, e.g., In re 

Gonzalez Recinas, 23 I. & N. Dec. 467, 472 (BIA 2002). Thus, we conclude that the BIA did 

not err in refusing to apply Cheley’s asserted rule. 

 2 To the extent that Cheley claims that the IJ and BIA failed to consider all of his arguments, 

we are satisfied that the agency conducted a thorough review of his evidence and claims. See

Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002) (“The Board is not required to write an 

exegesis on every contention, but only to show that it has reviewed the record and grasped the 

movant’s claims.” (internal quotation marks omitted)).
6

Finally, Cheley argues that the BIA applied the incorrect legal standard in addressing 

his motion to reopen. More specifically, he contends that the BIA should not have considered 

whether his new evidence would “likely change” the outcome of his case. We disagree. This 

inquiry was consistent with Supreme Court and BIA precedent. See INS v. Doherty, 502 U.S. 

314, 323 (1992); In re Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992). Therefore, we discern no 

error in this respect. 

Accordingly, the petitions for review are dismissed in part and denied in part.