In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2648

ERNESTO DELGADO,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General 

of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A077-767-216

ARGUED FEBRUARY 15, 2012—DECIDED MARCH 22, 2012

Before POSNER, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge. Ernesto Delgado entered the

United States illegally in 1989. Eleven years later, in

2000, the Immigration and Naturalization Service (the

“INS”) commenced removal proceedings against

Delgado by sending him a Notice to Appear. Delgado

admitted the allegations in the Notice to Appear, but
2 No. 11-2648

sought leave to stay in the United States by filing an

application for Cancellation of Removal. After several

immigration hearings and two remands from the Board

of Immigration Appeals (the “BIA” or “Board”), an immigration judge denied Delgado’s application for cancellation, and the BIA affirmed that finding. Delgado

appeals the BIA’s decision, claiming that his cancellation application was wrongly decided and that his right

to due process was violated. We deny Delgado’s petition for review.

I. Background

In 1989, Delgado left his home in Morelos, Mexico

and illegally entered the United States. He settled

in Chicago where he has maintained a continuous residence. In 1992, he married Analoet Roman, another

illegal alien, and together they have three children:

Guadalupe (18 years old), Daisy (13 years old) and Luis

(5 years old). All three of the Delgado’s children were

born in the United States and are U.S. citizens.

This case began in 2000 when the INS commenced

proceedings against Delgado with the filing of a Notice

to Appear. The Notice to Appear charged Delgado with

being a native of Mexico who is subject to removal

from the United States. In response, Delgado filed an application for cancellation of removal pursuant to INA

§ 240A(b)(1), 8 U.S.C. § 1229b(b)1. To qualify for cancellation under § 1229b(b)(1), an alien must meet the following four criteria: 
No. 11-2648 3

(A) has been physically present in the United States

for a continuous period of not less than 10 years

immediately preceding the date of such application;

(B) has been a person of good moral character during

such period;

(C) has not been convicted of an offense under

section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title,

subject to paragraph (5); and

(D) establishes 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.

The merits hearing on Delgado’s cancellation of removal

claim took place on September 24, 2004. Though the

immigration judge (“IJ”) found that Delgado established

the requisite continuous physical presence and good

moral character for cancellation of removal, he determined that Delgado failed to meet his burden of

showing his removal would result in exceptional and

extremely unusual hardship to his children, who are

United States citizens. The IJ denied his application

for cancellation or removal, granted voluntary departure, and alternatively, ordered his removal to Mexico.

Delgado appealed the IJ’s decision to the BIA. In

2005, the BIA remanded Delgado’s case to the IJ for

further action and certification because the tape

recording of Delgado’s hearing was defective, which

prevented the BIA from analyzing Delgado’s claims on
4 No. 11-2648

appeal. The BIA instructed the IJ to take the steps necessary and appropriate to enable the BIA to review a complete record and to hold a new hearing if necessary. In

response, the IJ determined that a new hearing was

unnecessary, given that the only shortcoming of the

previous record was an inability to discern what was

said at Delgado’s hearing. The IJ therefore determined

that it was inappropriate to consider new documents or

evidence.

The BIA disagreed. In July 2008, the BIA ruled that

its 2005 order did not preclude the submission of new

evidence or the taking of additional testimony, and

because new evidence might have been relevant, it

ordered a new hearing and preparation of a new decision that included comprehensive findings of fact. On

June 18, 2010, the IJ held a second merits hearing on

Delgado’s application for relief.

During Delgado’s 2010 cancellation hearing—the

hearing we now review—Delgado offered supporting

evidence in the form of documentation and live testimony. Delgado testified that his parents and at least two

brothers still reside in Morelos. Despite this fact, he

claimed that his family would be unable to stay with

his parents in Mexico because his parents do not have

the resources to support them. Delgado admits that he

has not looked into the possibility of living anywhere

other than Morelos, or living with anyone other than his

parents. Delgado also stated that if he were to move to

Mexico, his father, who owns a business in Morelos,

would be unable to offer him a job. Delgado admits that
No. 11-2648 5

he did not look into the possibility of working anywhere

besides his father’s business.

In addition to Delgado’s perception that there is

a lack of housing and employment opportunities in

Morelos, he explained that Morelos is not a safe place

to live, citing excessive violence and murder. Delgado

also lamented the possibility that his daughters may

need to enter the Mexican education system. He stated

that the schools are not as good as they are in the

United States, and that the children would have difficulty taking classes in Spanish.

Guadalupe also testified at the hearing. Her sister,

Daisy, did not testify, but Guadalupe offered testimony

as to her sister. Guadalupe is in honors classes, receives As and Bs in school, and aspires to work in

the medical field. Daisy also receives As and Bs. Both

daughters have been to Mexico on vacation, and both

prefer the United States to Mexico. Guadalupe can

speak, read and write in Spanish. Daisy can speak

Spanish enough to communicate with her father

(who does not speak English), but she cannot read or

write in Spanish. According to Guadalupe and Delgado,

a move to Mexico would be challenging for both

daughters, but would be much more difficult for

Daisy. Delgado and Guadalupe maintained that Daisy

would have an especially difficult time, since she is old

enough to have become acculturated by the United

States and she cannot read or write in Spanish. Guadalupe

also expressed concern regarding her college prospects

in Mexico—the nearest university to Morelos is an hour
6 No. 11-2648

and a half away. She also discussed the potentially prohibitive costs of a college education in Mexico, and while

Delgado did not know whether Guadalupe would be

eligible for financial aid, Guadalupe believed that

she would not be able to receive any financial help

from the State.

Delgado was unclear regarding where his children

would live if he were deported. If they did remain in

the United States, they would need to be supported by

the income of their mother and the $50,000 that Delgado

has in the bank. Guadalupe discussed the possibility

of working while in school to help support the family.

If Delgado does get deported, there is a possibility that

he would return to the United States in the future. One

of his brothers is a United States citizen, and in 1999,

Delgado’s brother applied for a visa for Delgado,

thus raising the chances that Delgado would not be

separated from his family permanently.

At the hearing, the IJ took a semi-active role in the

questioning (as he is permitted to do under 8 U.S.C.

§ 1229a(b)(1), which allows the IJ to “interrogate, examine, and cross-examine the alien and any witnesses.”).

During the direct examination of Delgado, the IJ interrupted the questioning three to four times to either

clarify what was being said, ask for an expanded answer,

or inquire as to why a certain line of testimony was relevant. For example, the IJ interrupted a line of questioning

regarding the undesirability of Delgado’s parents’ home

as a potential residence for Delgado’s family. In interjecting, the IJ questioned the relevance of the testimony
No. 11-2648 7

since Delgado could choose to live in any number of

other locations in Morelos, or even Mexico generally.

The IJ also conducted his own examination of Delgado

once both attorneys had completed their questioning.

Delgado’s attorney requested permission to ask followup questions to the IJ’s examination of Delgado, but

her request was denied. She also asked that both of

Delgado’s daughters provide testimony in support of

Delgado’s cancellation request, but the IJ only allowed

one daughter to testify. Delgado’s attorney did not object.

Delgado faults the IJ’s general demeanor during

Delgado’s hearing. He suggests that the IJ was rude

and hostile throughout the hearing. As an example of

the IJ’s allegedly inappropriate demeanor, Delgado

quotes the following line of questioning conducted by

the IJ: 

But that’s why you, a good family man who’s concerned about your family, would go back there and

live there as opposed to any other place in Mexico,

isn’t it? You’d go to the place that is the most violent.

You’d choose to live in that place in Mexico. Isn’t

that right, according to your account?

At the conclusion of Delgado’s 2010 cancellation

hearing, the IJ determined that Delgado met three of the

four criteria to be eligible for cancellation of removal, but

held that Delgado fell short of proving that his removal

would result in “exceptional and extremely unusual

hardship” to his children. He also ruled that Delgado

should not be granted voluntary departure, since he

chose not to leave the country voluntarily on the two
8 No. 11-2648

prior occasions that the IJ denied Delgado’s cancellation

request—that is, the denials from which Delgado appealed. Just as with the IJ’s previous denials, Delgado

appealed the 2010 ruling to the BIA. Delgado claimed

that the IJ was incorrect in his assessment of the hardship that Delgado’s children would face if Delgado

were deported. Delgado also argued that his due process

rights were violated, given the IJ’s apparent bias and

the IJ’s rejection of certain evidence, including the testimony of one of Delgado’s daughters.

On June 20, 2011, the BIA affirmed in part and vacated

in part the decision of the IJ after de novo review. The

BIA concluded that the IJ did not err in his assessment

of the hardship that Delgado’s children would face, but

ruled that the IJ did err in denying Delgado’s ability to

leave the country voluntarily. More specifically, the

BIA found that the IJ had granted Delgado voluntary

departure in his two previous rulings, and that it was

an abuse of discretion to deny voluntary departure now

based solely on Delgado’s decision to pursue his right

to appeal any decision made by the IJ. Delgado has petitioned this court to review the BIA’s determinations,

arguing that the IJ and BIA wrongly assessed the level

of hardship that Delgado’s children face and that

Delgado’s due process rights were violated by the IJ.

Delgado therefore requests that we reverse the BIA’s

decision and remand for further proceedings consistent

with that reversal.
No. 11-2648 9

II. Discussion

Delgado disputes the BIA’s decision for two independent reasons. First, he argues that he has met the four

criteria necessary to be considered for cancellation of

removal under 8 U.S.C. § 1229b(b)(1). More specifically,

he contends that his children will experience “exceptional

and extremely unusual hardship” if he is deported,

regardless of whether they go with him to Mexico or

remain in the United States. Second, Delgado argues

that the IJ did not provide him with the process that he

was due under the Fifth Amendment of the Constitution

of the United States. Delgado claims that the IJ clearly

exhibited a bias against him during his cancellation

hearing, which was evident both in the tone of the IJ’s

questions and in the fact that the IJ rejected probative

evidence that would have advanced Delgado’s position.

The government contends that both of Delgado’s arguments fall short. First, they maintain that we do not have

jurisdiction to hear a challenge to the BIA’s decision on

the merits of Delgado’s request for cancellation of

removal, and thus it does not matter whether we

believe that Delgado’s children will suffer extreme hardship upon Delgado’s removal from the United States.

Next, the government argues that Delgado was given a

full and fair hearing and a reasonable opportunity to

present his claims, and thus his due process rights were

not violated.

A. Jurisdiction

We review questions concerning our jurisdiction de

novo. Lara-Ruiz v. INS, 241 F.3d 934, 939 (7th Cir.
10 No. 11-2648

2001). Applications for cancellation of removal orders

are permitted under 8 U.S.C. § 1229b, a provision of the

INA. Another INA provision—8 U.S.C. § 1252(a)(2)(B)—

clearly establishes that “no court shall have jurisdiction

to review . . . any judgment regarding the granting of

relief under section . . . 1229b . . . of this title.” See also

Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir. 2006) (“Decisions under § 1229b are not reviewable by the federal

judiciary.”). We therefore lack jurisdiction to review

Delgado’s claim that the IJ and BIA incorrectly held

that his children would experience exceptional and unusual hardship if Delgado were to move to Mexico. 

The door-closing provision found in § 1252(a)(2)(B)

is, however, subject to an exception found in

§ 1252(a)(2)(D), which states, “Nothing in subparagraph (B)

or (C) . . . shall be construed as precluding review of

constitutional claims or questions of law . . . .” Thus,

we have jurisdiction to hear any constitutional or legal

challenge Delgado brings against the BIA’s decision.

As noted above, Delgado has brought a due process

challenge against the IJ and BIA’s determinations. We

turn now to those arguments.

B. Due Process/Statutory Process Claims

1. Propriety of Due Process Challenge in Cancellation of Removal Proceedings

Delgado claims that the Fifth Amendment provides

him with certain due process rights in relation to his

application for cancellation of removal. In support, he
No. 11-2648 11

relies on Reno v. Flores, a Supreme Court case clearly

stating “that the Fifth Amendment entitles aliens to

due process of law in deportation proceedings.” 507 U.S.

292, 306 (1993). While this point is undoubtedly true, an

alien eligible for discretionary relief does not have a

substantive entitlement, and therefore, there is no liberty

interest at stake in a proceeding where an alien seeks

discretionary relief. Kahn v. Mukasey, 517 F.3d 513, 518

(7th Cir. 2008). Thus, aliens, do not have a right to due

process in hearings for discretionary relief, such as

those conducted in response to a § 1229b application

for cancellation of removal. See id.; see also Town of Castle

Rock, Colo. v. Gonzales, 545 U.S. 748, 757 (2005) (“Our

cases recognize that a benefit is not a protected entitlement if government officials may grant or deny it in

their discretion.”); Portillo-Rendon v. Holder, 662 F.3d

815, 817 (7th Cir. 2011) (“To have a liberty or property

interest in some benefit, a person must have a legitimate claim of entitlement, which means an entitlement

established by rule; hope for a favorable exercise of administrative discretion does not qualify.”).

This is not the end of the matter. In situations

where petitioners have made “flabby constitutional

arguments” of the sort found here, we have construed

such claims as arguments “that the IJ’s hearing violated

[the] statutory and regulatory provisions” applicable to

the hearing in question. See, e.g., Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th Cir. 2007). At first glance,

this may appear to put our jurisdiction in question considering our analysis above, which indicated that our

jurisdiction was based on the fact that Delgado has pre-
12 No. 11-2648

sented a constitutional question. But “[t]he procedural

sufficiency of an immigration hearing is a legal question,”

Boyanivskyy v. Gonzales, 450 F.3d 286, 291 (7th Cir. 2006),

and since 8 U.S.C. § 1252(a)(2)(D) allows us to retain

jurisdiction over any “constitutional claims or questions

of law,” Delgado’s challenge to the sufficiency of his

cancellation proceedings is safely within our purview.

We review questions of law de novo. Id.

2. Sufficiency of Delgado’s Cancellation Proceedings

An alien applying for cancellation of removal has

the same statutory process protections as an alien

involved in removal proceedings, which are laid out

under 8 U.S.C. § 1229a; cf. Portillo-Rendon, 662 F.3d at

817 (stating that procedural entitlements found in § 1229a

apply to alien that applied for cancellation of removal).

Under § 1229a(b)(4), an alien subject to a cancellation

proceeding “shall have a reasonable opportunity to

examine the evidence against the alien, to present

evidence on the alien’s own behalf, and to crossexamine witnesses presented by the Government.” See

also Apouviepseakoda, 475 F.3d at 885. “In order to succeed

in challenging the legality of such a hearing, the alien

must show not only that her ‘reasonable opportunity’

was denied, but also that she was prejudiced.” Id. In

the end, the question we must answer is whether, considering the totality of the circumstances, the alien received a full and fair opportunity to be heard. Id. at 886.
No. 11-2648 13

Delgado offers two arguments for why his cancellation proceedings fell short of the standard set by § 1229a.

First, he argues that the IJ’s aggressive questioning and

interruptions, along with IJ’s clear hostility toward

Delgado, belied any claims to neutrality and demonstrated a bias that prevented Delgado’s hearing from

being a fair one. Second, Delgado protests the IJ’s

decision to exclude certain probative evidence in direct

violation of § 1229a’s warning—that an alien should be

able to “present evidence on [his] own behalf.”

a. Bias

An IJ’s decision to question an alien in a removal or

cancellation proceeding is not dispositive evidence of

bias. Indeed, under § 1229a, an immigration judge is

permitted to “interrogate, examine, and cross-examine

the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1).

Moreover, an immigration judge has “broad discretion

to control the manner of interrogation in order to

ascertain the truth.” Iliev v. I.N.S., 127 F.3d 638, 643 (7th

Cir. 1997). Limiting an IJ’s discretion is the applicant’s

right to a full and fair opportunity to be heard. See

Apouviepseakoda, 475 F.3d at 885.

As to the manner in which an IJ questions an applicant,

we have routinely held that we would prefer IJs to

exhibit appropriate decorum during removal or cancellation proceedings, but impatience, inappropriateness,

and even hostility toward applicants do not generally

rise to such a level as to prevent an applicant from receiving a full and fair hearing. Apouviepseakoda, 475 F.3d
14 No. 11-2648

at 885-86; Firishchak v. Holder, 636 F.3d 305, 311 (7th Cir.

2011). The closest cases are those “in which the questioning becomes so aggressive that it frazzles applicants

and nit-picks inconsistencies until a petitioner [becomes]

so distraught that the immigration judge [is] forced

to pause the proceedings to give the [non-citizen] a

chance to collect herself.” Apouviepseakoda, 475 F.3d at 886

(internal quotation marks omitted) (citing Giday v.

Gonzales, 434 F.3d 543, 549 (7th Cir. 2006)).

In Castilho de Oliviera v. Holder, we reasoned that an IJ’s

inappropriate and irrelevant questions, along with his

questionable tone, did not prevent a petitioner from

putting on his case, but did suggest that he may have

been impermissibly biased. 564 F.3d 892, 899 (7th Cir.

2009). The IJ in Castilho interrupted an expert witness

with inappropriate and confrontational questions, inquired into several witnesses’ religious beliefs (despite the fact that the alien was not claiming religious

persecution), and asked whether the alien was infertile,

or, as the IJ put it, might “shoot blanks.” Id. We held

that the IJ’s inappropriate tone, frequent interruptions,

and apparent focus on irrelevant matters led to the impression that the IJ “entered the hearing with his mind

already made up.” Id. at 899-900.

Conversely, the IJ in Apouviepseakoda was deemed not

to have prevented a full and fair hearing, despite

the fact that he used a mocking tone, “demonstrated

intemperance,” and may have “asked a majority of the

questions” at the applicant’s hearing. 475 F.3d at 886-87.

In Apouviepseakoda we emphasized the fact that an IJ’s
No. 11-2648 15

interruption of testimony is not inappropriate as long as

it is aimed at focusing the hearing, excluding irrelevant

material, and ensure clarity in an applicant’s answers.

Id. at 877. We further highlighted that the IJ deferred to

the applicant’s counsel to direct the topics of discussion

and gave applicant’s counsel multiple opportunities to

question the applicant. Id. at 887-88. Similarly, in Barradas

v. Holder we determined that an IJ’s interjections and

questioning of the applicant were not inappropriate,

given that the interjections were aimed at clarification,

the interjections did not concern irrelevant or inappropriate matters, and the questioning occurred after the

government had a chance to question the applicant.

582 F.3d 754, 767 (7th Cir. 2009).

Turning to the case at hand, the IJ’s interruptions

and questioning did not rise to the level of those

seen in Castilho. The IJ’s substantive interruptions of

Delgado’s testimony included a question about whether

Delgado had paid a bond ordered by the court, a question

attempting to clarify whether Delgado was referring to

his home in Chicago or his potential future home in

Mexico, and an attempt to determine the import of a

line of questioning involving the living conditions at

Delgado’s parents’ home. All of these questions are

clearly relevant, unlike the questions asked by the IJ in

Castilho. Further, any hostility, impatience, or rudeness

exhibited by the IJ was significantly less than the rudeness

exhibited in Apouviepseakoda, and yet we deemed the

hearing in Apouviepseakoda to be full and fair. In

Apouviepseakoda, for instance, we observed that the IJ

mocked the applicant regarding a cultural difference
16 No. 11-2648

between the United States and her home in Africa. 475 F.3d

at 886-87. The most that can be said about the IJ in this

case is that he might have appeared sarcastic when questioning why Delgado would choose to live in Morelos

instead of a safer part of Mexico, and that the IJ was

perturbed by Delgado’s lack of evidentiary support for

his belief that there are no jobs in Morelos. Any of the

inquiries on the part of the IJ cannot be labeled as having

prevented Delgado from having a reasonable opportunity to present his case, and do not support the contention that the IJ harbored any bias toward Delgado. 

b. Inability to Present Evidence

An immigration judge has the authority to narrow

the focus of a hearing and exclude irrelevant evidence,

but he may not “bar complete chunks of oral testimony

that would support the applicant’s claim.” Barradas, 582

F.3d at 766 (citing Kerciku v. INS, 314 F.3d 913, 918 (7th

Cir. 2003)). When excluded testimony goes to the heart

of a petitioner’s claims, and may have had the potential

to change the outcome of the hearing, we must find

that the petitioner did not have a meaningful opportunity to be heard. See Rodriguez Galicia v. Gonzales, 422

F.3d 529, 540 (7th Cir. 2005).

In Zolotukhin v. Gonzales, the IJ prevented several key

witnesses—including petitioner’s grandmother, petitioner’s mother, petitioner himself, and an expert—

from testifying about the persecution suffered by the

petitioner’s family and others similarly situated in petitioner’s home country, on the grounds that past persecu-
No. 11-2648 17

tion is unimportant. 417 F.3d 1073, 1075-76 (9th Cir. 2005).

The Ninth Circuit held that this testimony could

have shown that petitioner had a well-founded fear of

future persecution, and thus altered the result of his

hearing, and thus found a violation of petitioner’s

rights. Id. at 1076-77. The IJ also indicated that she did

not believe the petitioner’s story, before his hearing

even began. Id. at 1075.

In Apouviepseakoda, conversely, the IJ’s denial of certain

witnesses’ proposed testimony was not found to be a

violation of the petitioner’s procedural rights. 475 F.3d

at 889. In that case, the IJ declined to hear the testimony of the petitioner’s daughter—which would have

included information about the abuse that petitioner

suffered in her home country—and the testimony of an

expert on the politics of petitioner’s home country.

Id. at 888. The IJ instead accepted an offer of proof.

We reasoned that “[t]he typical context in which

we have found fault with an IJ’s decision to deny corroborating witness testimony has arisen where an IJ has

‘made up his mind about the case and was subsequently

unwilling to listen to any testimony,’ despite the diligent

insistence of the alien’s counsel that the testimony

speaks directly to the questions the IJ is supposed to

evaluate in making the decision.” Id. at 888-89 (quoting

Kerciku v. INS, 314 F.3d 913, 918 (7th Cir. 2002)). Since

the petitioner’s counsel made no objection to the IJ’s

refusal to hear the two witnesses’ testimony and the

petitioner received plenty of time and opportunity to

argue her case generally, we held that she received a

reasonable opportunity to be heard, despite her less

than perfect hearing. Id. at 889.
18 No. 11-2648

Delgado challenges two decisions by the IJ to restrict

the evidence he was permitted to present. First, he challenges the IJ’s decision not to allow any new evidence to

be admitted at Delgado’s 2007 hearing. This error was

cured when Delgado received a full hearing in 2010, and

thus could not have prejudiced Delgado. Apouviepseakoda,

475 F.3d at 885. Delgado also challenges the IJ’s decision

to permit only one of Delgado’s daughters, Guadalupe,

to testify. As with the exclusions of testimony in

Apouviepseakoda, Delgado’s attorneys did not object to

the IJ’s decision to permit only one daughter to testify

in this case. Further, unlike the decisions made by the IJ

in Zolotukhin, the decision to exclude Daisy’s testimony

does not suggest that the IJ in this case already made

up his mind. The exclusion of Daisy’s testimony is

better explained by a desire to focus the testimony provided and cut out extraneous, cumulative, or unnecessary evidence. This conclusion is bolstered by the fact

that both Delgado and his daughter Guadalupe testified as to the likely effects that Delgado’s deportation

would have on Daisy, as well as the IJ’s stated desire

to avoid unnecessary stress and pressure on children

that must testify in proceedings of this nature.

Even if Daisy’s testimony was inappropriately excluded, Delgado has not shown that he was prejudiced

by this exclusion. He has not suggested any testimony

that she would have provided that was not already revealed through the testimony of Delgado and Guadalupe.

The record reflects that Delgado appears to be a responsible individual with a strong sense of family and work

ethic who has lived a peaceful and productive life in
No. 11-2648 19

the United States for over 20 years. However, considering the totality of the circumstances surrounding

his cancellation hearing, it cannot be said that he failed

to receive a full and fair hearing in which he had the

reasonable opportunity to present his case.

III. Conclusion

For the foregoing reasons, we DENY Delgado’s petition

for review.

3-22-12