United States Court of Appeals

For the First Circuit

No. 09-2598

PABLO SANTANA-MEDINA,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Boudin and Howard, Circuit Judges.

Lolita J. Semidey was on brief for petitioner.

Brianne Whelan Cohen, Trial Attorney, Office of Immigration

Litigation, William C. Peachey, Assistant Director, and Tony

West, Assistant Attorney General, Civil Division, were on brief

for respondent.

August 5, 2010
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LYNCH, Chief Judge. Petitioner Pablo Santana-Medina, a

native and citizen of the Dominican Republic, seeks review of a

Board of Immigration Appeals (BIA) decision denying his application

for cancellation of removal under 8 U.S.C. § 1229b(b). That

provision requires an alien to show, inter alia, "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." 8

U.S.C. § 1229b(b)(1)(D).

Santana-Medina claims that he satisfies this requirement

because his thirteen-year-old son, a U.S. citizen, would face

exceptional and extremely unusual hardship if Santana-Medina were

deported. The BIA relied on the IJ's reasoning and rejected this

argument. Santana-Medina now argues that the IJ applied an

incorrect legal standard by failing to consider his son's best

interests as the primary criterion in its analysis, which SantanaMedina claims is required under the United Nations Convention on

the Rights of the Child.

By statute, orders regarding cancellation of removal are

not subject to judicial review, see 8 U.S.C. § 1252(a)(2)(B)(I),

unless the appeal raises a question of law or a constitutional

claim, see 8 U.S.C. § 1252(a)(2)(D). Santana-Medina's legal claim

on appeal was not made before the IJ or BIA, and his other claims
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merely challenge the IJ's factual determinations. We hold that we

lack jurisdiction to review the denial of his application.

I.

In 1989, Santana-Medina arrived in the United States

without inspection. He has lived in San Juan, Puerto Rico since

1990. In 1991, he married a U.S. citizen, and his then-wife filed

an immediate relative visa petition for him. The visa was

approved, and on December 8, 1992, Santana-Medina obtained

conditional resident status. 

On September 30, 1994, Santana-Medina and his then-wife

filed a joint I-751 petition to remove the conditions on his

permanent residence. However, numerous inconsistencies in SantanaMedina's interview with an immigration official on June 15, 1995

drew into question whether he and his wife had entered into a good

faith marriage. On August 11, 1995, the I-751 petition was denied

and Santana-Medina's status as a permanent resident was terminated.

In 1996, Santana-Medina had a son as a result of an

affair with another woman. The son was born in Puerto Rico and is

now in his early teens. He is a U.S. citizen and lives with his

mother, step-father, and three half-siblings in San Juan.

On August 27, 2001, Santana-Medina's marriage ended, and

on January 15, 2004, he filed an I-751 petition to remove the

conditions on his residence; he filed this as a waiver application,

claiming that he had entered into a good faith marriage. On
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October 5, 2006, the Department of Homeland Security (DHS) denied

the petition and terminated Santana-Medina's conditional resident

status.

On January 30, 2007, DHS initiated removal proceedings

and filed a Notice to Appear, charging that Santana-Medina was

removable because his conditional permanent resident status had

been terminated. Santana-Medina responded by reapplying for a

waiver under I-751, but at a October 12, 2007 hearing before an IJ,

he confirmed that he would instead pursue only cancellation of

removal and, in the alternative, voluntary departure.

In two hearings before an IJ on May 14, 2008, and May 28,

2008, Santana-Medina argued that he was entitled to cancellation of

removal because his son, who was eleven at the time, would face

exceptional and extremely unusual hardship if Santana-Medina were

deported. In support of his claim, Santana-Medina testified about

his relationship with his son and introduced a report from a

psychologist and a letter from a social worker at his son's school.

The child and the child's mother also testified.

Santana-Medina testified that if he were deported back to

the Dominican Republic, the child's mother would not let him take

his son with him. He said that although his son lives with his

mother, he presently has custody of his son from Friday at 5 p.m.

to Sunday at 5 p.m. He explained that when he and his son spend

time together, they frequently play baseball, and Santana-Medina
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purchases many necessities for his son. Santana-Medina concluded

that if he were deported, it would be traumatic for his son and

would likely prevent his son from becoming a professional athlete,

as Santana-Medina hopes for him.

The psychologist's report suggested that if SantanaMedina were deported, his son would likely suffer severe emotional

harm because "[w]hen the child lo[ses] contact with his father it

can be infer[red] that he could be affected emotionally suffering

severe depression." But some of the statements in this report were

denied by Santana-Medina in his testimony.

The social worker's letter stated that Santana-Medina

regularly spent time with his son, provided for him, and played

baseball with him often, and that his son expressed a desire to be

with him. The letter concluded that it would be better for the son

if his father were close enough to stay in frequent contact.

The son's mother testified that Santana-Medina is a good

father who spends time with him frequently and takes care of all of

his needs, except for lodging and food during the week. She added

that Santana-Medina was able to take his son out for entertainment

and to play baseball, which she could not do because of her three

other small children. She suggested that Santana-Medina's

deportation would be traumatic to her son because of his closeness

to his father and his father's ability to give his son undivided

attention. The child testified that he enjoyed spending time with
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his father and that they frequently played baseball and went places

together. In addition, Santana-Medina's employers, who employed

him for a period of years as a handyman, attested to his

trustworthiness and reliability.

In an oral decision at the end of the May 28, 2008,

hearing, the IJ found Santana-Medina ineligible for cancellation of

removal. The IJ held that Santana-Medina had satisfied some of the

requirements for cancellation because he had been continuously

present in the United States for no less than ten years, was a

person of good moral character, and had not been convicted of

relevant offenses. See 8 U.S.C. § 1229b(b)(1)(A)-(C). However,

after the IJ weighed the relevant testimony and supporting

documentation, the IJ held that Santana-Medina had not established

the statutory standard of "exceptional and extremely unusual

hardship" to his son as a result of his removal. See id. §

1229b(b)(1)(D).

The IJ stated that the relevant standard was whether the

alien's son "would suffer hardship that is substantially beyond

that which ordinarily would be expected to result from a person's

departure," but not necessarily "unconscionable" hardship. The IJ

found that Santana-Medina had not satisfied this standard because,

although the evidence clearly showed Santana-Medina was a good

father who provided for and spent time with his son, "[t]he

hardship that the respondent's son will suffer is a hardship that
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is typical of any child who would have a father transfer from one

state to another state." The IJ cited the fact that Santana-Medina

could likely remain in close contact with his son even after

deportation, since Santana-Medina would be in the Dominican

Republic, not far from Puerto Rico. The IJ also questioned the

credibility of the psychologist's report, deeming it "a little bit

tailor made" and noting numerous inaccuracies in the report.

On October 23, 2009, the BIA affirmed the IJ's decision

and adopted its reasoning. The BIA specifically found that

although Santana-Medina had shown his son would be adversely

affected by his removal, he had failed to show exceptional and

extremely unusual hardship substantially beyond the hardships

ordinarily associated with deportation. The BIA also affirmed the

IJ's order granting voluntary departure.

II.

Ordinarily, by statute, "no court shall have jurisdiction

to review . . . any judgment regarding the granting of relief under

section . . . 1229b," which governs cancellation of removal

decisions. 8 U.S.C. § 1252(a)(2)(B)(I); see also Kucana v. Holder,

130 S. Ct. 827, 831-32, 837 (2010). Jurisdiction may be restored,

however, if an appeal of a decision regarding cancellation of

removal raises "constitutional claims or questions of law," as

opposed to factual issues. 8 U.S.C. § 1252(a)(2)(D); Parvez v.

Keisler, 506 F.3d 93, 96 (1st Cir. 2007).
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Santana-Medina claims that he falls under this exception

because his appeal raises a question of law regarding the legal

standard the IJ applied for cancellation of removal. He argues

that because his petition is based on hardship to his child, the IJ

was required to apply the "exceptional and extremely unusual

hardship" standard, 8 U.S.C. § 1229b(b)(1)(D), in a manner

consistent with the United Nations Convention on the Rights of the

Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3, reprinted in 28

I.L.M. 1448, which Santana-Medina takes as "customary international

law." He specifically argues that when the IJ considered whether

Santana-Medina's removal would result in exceptional and extremely

unusual hardship to his son, the IJ ignored the Convention's

Article 3(1) requirement that "the best interests of the child" be

made a "primary consideration." See id., 1577 U.N.T.S. at 46, 28

I.L.M. at 1459. 

We need not determine whether the Convention is binding

law or whether it even applies in the removal context. SantanaMedina never made this argument before the IJ or the BIA. It is

therefore waived, and Santana-Medina cannot invoke it as a basis

for jurisdiction.

Santana-Medina also argues that the psychologist's report

and the facts he presented regarding his son's current family

situation and emotional needs satisfied the exceptional and

extremely unusual hardship standard, and that the IJ erred in
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determining otherwise. This is a plain challenge to the IJ's

factual determination; indeed, Santana-Medina does not even style

this as a claim of legal error. As the government argues, this is

at best a challenge to the way the IJ weighed the evidence

presented, not to the standards it applied in doing so. "To

trigger our jurisdiction" under 8 U.S.C. § 1252(a)(2)(D), "the

putative constitutional or legal challenge must be more than a

disguised challenge to factual findings." Pan v. Gonzales, 489

F.3d 80, 84 (1st Cir. 2007); see also Parvez, 506 F.3d at 97. 

The petition for review is dismissed for lack of

jurisdiction.