In the

United States Court of Appeals

For the Seventh Circuit

No. 14-2504

MIGUEL PEREZ-FUENTES,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General

of the United States,

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A200-140-987

ARGUED SEPTEMBER 20, 2016 — DECIDED NOVEMBER 22, 2016

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

BAUER, Circuit Judge. Petitioner Miguel Perez-Fuentes, a

native and citizen of Mexico, seeks review of the Board of

Immigration Appeals’ decision affirming the denial of his

application for cancellation of removal. See 8 U.S.C. § 1229b(b).

The Board affirmed the denial based on the Immigration

Judge’s alternate determination that Perez-Fuentes did not

establish the requisite hardship for cancellation. See 8 U.S.C.
2 No. 14-2504

§ 1229b(b)(1)(D). Perez-Fuentes challenges several aspects of

his hearing. He contends that the IJ improperly excluded

evidence and failed to develop the record as required by 8

U.S.C. § 1229a(b)(1) and 8 C.F.R. § 1240.32(b). We dismiss

Perez-Fuentes’ petition for review, in part for lack of jurisdiction, and deny the remainder of the petition. 

I. BACKGROUND

Perez-Fuentes entered the United States from Mexico

without inspection; the date of his entry is not clear. PerezFuentes came to the attention of the Department of Homeland

Security after several arrests. On July 19, 2011, DHS served

Perez-Fuentes with a Notice to Appear, charging that he was

removable for being present in the United States without

inspection under 8 U.S.C. § 1182(a)(6)(A)(i).

On September 13, 2011, Perez-Fuentes proceeded pro se,

but with the aid of an interpreter, at the first hearing. He

testified that he is a parent of a daughter, Esmeralda, who is a

United States citizen. Further, he testified that he first entered

the United States in 1995 for a period of time, and returned to

the United States after a departure sometime in 1998. After he

told the IJ about an arrest, he was instructed to provide a list of

his arrests and the dispositions, and the court records. The IJ

provided Perez-Fuentes with an application for cancellation of

removal and informed him of the requirements. 

On November 22, 2011, Perez-Fuentes conceded removability and filed an application for cancellation of removal. See

8 U.S.C. § 1229b(b). Cancellation of removal is a discretionary

form of relief available to certain nonpermanent residents. To

qualify, an applicant must meet four statutory criteria: he must
No. 14-2504 3

establish continuous physical presence for ten years immediately preceding the date of his application; have “good moral

character” during that period; show he was not convicted of

certain offenses; and, prove that his removal would “result in

exceptional and extremely unusual hardship” to a qualifying

relative. 8 U.S.C. § 1229b(b)(1). The applicant has the burden of

establishing each of these criteria. Adame v. Holder, 762 F.3d

667, 669 (7th Cir. 2014). Finally, even if the applicant satisfies

these conditions, the IJ retains discretion to grant or deny the

application. 8 U.S.C. § 1229b(b)(1); see also Adame, 762 F.3d at

670–71 (“[T]he IJ ‘may cancel removal’; it does not say that the

judge must do so.”).

After four continuances over an 18-month period, the IJ

held the final hearing on the merits of Perez-Fuentes’ application on January 28, 2013. Perez-Fuentes testified in support of

his application. Among other questions, the IJ asked PerezFuentes, “Okay, well, what hardships do you feel your

daughter would face if, if you had to leave the United States?”

Perez-Fuentes testified that he financially supported his

daughter and she would need money for clothes and food. He

also testified that his daughter was in good health. The IJ asked

Perez-Fuentes about whether his girlfriend,Raquel Ochoa—an

undocumented non-citizen and the mother of Perez-Fuentes’

daughter—would move to Mexico with him and about her

work history. After several other questions regarding his

daughter and Ochoa, the IJ inquired further: “Well, do you

think your child would face any hardships otherthan financial

hardships if you had to leave?” Perez-Fuentes answered,

“Well, yes, because she’s still very little, but even being little

she’s very close to me.”
4 No. 14-2504

Additionally, Perez-Fuentes had two witnesses testify and

provided various documents, including tax returns and seven

untranslated written statements. Perez-Fuentes called Blanca

Ruiz to testify as a character witness on his behalf. Ruiz is the

wife of Miguel Ruiz, a former employer of Perez-Fuentes. 

He also called Ochoa to testify on his behalf. The IJ asked

Ochoa several questions, including questions about the

number of children she had with Perez-Fuentes, the age of

their daughter, whether their daughter was in good health, and

whether she would stay with him if he was required to depart. 

After Ruiz and Ochoa’s testimony, the IJ asked PerezFuentes whether he had any other witnesses. Perez-Fuentes

said that he did, “but not anybody that ... kn[ew] [him] as well

as [Ruiz and Ochoa].”

At the conclusion of the hearing, the IJ denied PerezFuentes’ application, and ordered him removed to Mexico. The

IJ found that Perez-Fuentes “failed to meet any of the requirements necessary for cancellation of removal,” and that he did

not merit cancellation of removal as a matter of discretion. As

to the physical presence requirement, the IJ noted that PerezFuentes testified that he arrived in 1997, but that at a previous

hearing he stated that he returned to Mexico in 1998. The IJ

concluded that Perez-Fuentes failed to present documentary

evidence to support his claim that he worked continuously in

the United States.

The IJ also found that Perez-Fuentes did not establish the

good moral character requirement. The IJnoted several arrests,

including a recent arrest for domestic battery; his third arrest

for that offense. The IJ found that Perez-Fuentes and Ochoa’s
No. 14-2504 5

conflicting testimony surrounding the recent offense suggested

he was not telling the truth. The IJ believed that Perez-Fuentes

underreported his income for tax purposes, especially in light

of his inability to explain how he recently purchased a home

for $100,000 in cash, while only reporting a net income of

$7,000. 

In addition, the IJ found that, even assuming that PerezFuentes had met the continuous physical presence and good

moral character requirements, he had failed to prove that his

removal would result in “exceptional and extremely unusual

hardship” to his daughter, Esmeralda. The IJ found that PerezFuentes presented “virtually no evidence” showing what

hardship his daughter would face other than “separation

hardship and financial hardship” if Perez-Fuentes was required to depart. 

On June 9, 2014, the Board affirmed the order of removal

and denial of cancellation of removal. The Board concluded

that there were no due process violations, that the IJ fully

developed the record, and that Perez-Fuentes had a full

opportunity to present his case. The Board affirmed the

IJ’s alternate determination that Perez-Fuentes had not

established that his removal to Mexico would result in

“exceptional and extremely unusualhardship” to his daughter.

See 8 U.S.C. § 1229b(b)(1)(D). The Board noted that Perez- 1

Fuentes did not assert that his daughter has any serious health

issues or special needs in school, and that she lives with Ochoa.

 Perez-Fuentes retained counsel on his appeal to the Board, as well as his 1

appeal to this Court.
6 No. 14-2504

The Board also noted that Ochoa was in good health and that

Perez-Fuentes was healthy and that there is no reason why he

could not work in Mexico and send money back to his daughter and Ochoa. Lastly, the Board found that the IJ considered

all of the evidence individually and cumulatively, and affirmed

that, in the aggregate, these hardships do not reach the high

threshold necessary to demonstrate eligibility for cancellation

of removal. Accordingly, the Board dismissed the appeal.

Perez-Fuentes filed a timely petition for review in this Court.

II. DISCUSSION

Generally, we lack jurisdiction to review denials of discretionary relief in immigration proceedings, including cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B); Adame, 762 F.3d at

670. But, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction

to review constitutional claims and questions of law raised in

a petition for review. Delgado v. Holder, 674 F.3d 759, 765 (7th

Cir. 2012).

Perez-Fuentes claims that the IJ failed to follow statutory

and regulatory requirements while conducting Perez-Fuentes’

removal hearing. More specifically, he contends that he was

prevented from receiving a full and fair hearing because the “IJ

arbitrarily rejected evidence, failed to use proper legal standards, and failed to fully develop the record as required by

8 U.S.C. § 1229a(b)(1) and 8 C.F.R. § 1240.32(b).” Since “[t]he

procedural sufficiency of an immigration hearing is a legal

question,” Boyanivskyy v. Gonzales, 450 F.3d 286, 291 (7th Cir.

2006), some of Perez-Fuentes’ challenges are reviewable.
No. 14-2504 7

A. Developing the Record

Perez-Fuentes contends that he was denied a full and fair

hearing because the IJ breached his duty to develop the record

by asking Perez-Fuentes and Ochoa only a few questions about

the potential hardship his daughter, Esmeralda, would face. IJs

are authorized to “interrogate, examine, and cross-examine the

alien and any witnesses” during removal proceedings. 8 U.S.C.

§ 1229a(b)(1). “The immigration judge shall receive andadduce

material and relevant evidence, rule upon objections, and

otherwise regulate the course of the hearing.” 8 C.F.R.

§ 1240.32(b).

Here, the record shows that the IJ elicited testimony from

Perez-Fuentes and Ochoa concerning the potential hardship

Esmeralda would face. For example, the IJ asked, “Okay, well,

what hardships do you feel your daughter would face if, if you

had to leave the United States?” In response, Perez-Fuentes

testified that his daughter relies on him to provide her food

and clothes. After several related follow-up questions, the IJ

asked Perez-Fuentes a question intended to elicit testimony

concerning other potential hardships: “Well, do you think your

child would face any hardships other than financial hardships

if you had to leave?” Perez-Fuentes answered, “Well, yes,

because she’s still very little, but even being little she’s very

close to me.”

Based on the record, Perez-Fuentes cannot contend that the

IJ failed to develop the record by not asking more questions.

His answers essentially conveyed to the IJ that the potential

hardship Esmeralda would face is not “substantially different

from, or beyond, that which would be normally expected from
8 No. 14-2504

the deportation of an alien with close family members in the

United States.” Cruz-Moyaho v. Holder, 703 F.3d 991, 995 (7th

Cir. 2012) (quoting In re Monreal, 23 I. & N. Dec. 56, 65 (BIA

2001)) (alterations omitted). 

Perez-Fuentes has not shown that he was prejudiced.

Although Perez-Fuentes lists questions that the IJ could have

asked, he has not provided us with answers to those questions

or any other concrete information that might have affected the

outcome of the proceeding. See El-Gazawy v. Holder, 690 F.3d

852, 860 (7th Cir. 2012) (“[A]pplicant’s failure to allege excluded testimony that would potentially affect outcome of

hearing was fatal to due process claim”). Further, the IJ

concluded that had Perez-Fuentes established all of the

requirements for cancellation of removal, the IJ could have

denied the application as a matter of discretion. 

We do not believe that the record before us supports a

conclusion that the IJ violated any statute or regulation in

regards to the manner in which the IJ elicited testimony

concerning the potential hardships Esmeralda would face.

B. Exclusion of Evidence

Perez-Fuentes argues that the IJ improperly excluded

evidence by: (1) failing to call two of Perez-Fuentes’ witnesses;

and, (2) ignoring seven untranslated statements.Perez-Fuentes

contends that he was prejudiced because the excluded evidence had the potential to affect the outcome of the proceeding. “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.’” Delgado, 674 F.3d at 768 (quoting
No. 14-2504 9

Barradas v. Holder, 582 F.3d 759, 766 (7th Cir. 2009)). If the

excluded evidence is central to the petitioner’s case in such a

way that it would change the outcome of the hearing, then this

Court must find that the petitioner did not have a meaningful

opportunity to be heard. Id.

1. Two Witnesses

We may review a final order of removal only if the noncitizen “has exhausted all administrative remedies available to

the [non-citizen] as of right.” 8 U.S.C. § 1252(d)(1). Some failure

to exhaust claims may be “overlooked,” but when a noncitizen’s claim is “based on a procedural failing that the Board

could have remedied, thereby obviating the constitutional

claim, then the failure to exhaust will not be excused.” Ghaffar

v. Mukasey, 551 F.3d 651, 655 (7th Cir. 2008). “The duty to

exhaust includes the obligation to first present to the [Board]

any argument against the removal order as to which the Board

is empowered to grant the alien meaningful relief.” Id.

Here, Perez-Fuentes failed to exhaust his administrative

remedies as to the argument that the IJ improperly excluded

two witnesses. We acknowledge that Perez-Fuentes proceeded

pro se before the IJ, but he was represented by counsel on his

appeal to the Board. Perez-Fuentes’ brief to the Board neither

mentions the two witnesses, nor the exchange between the IJ

and Perez-Fuentes in regards to whether he had any other

witnesses. Perez-Fuentes failed to raise this specific argument

before the Board, and therefore he did not exhaust his administrative remedies. Thus, he cannot raise it now for the first time.
10 No. 14-2504

8 U.S.C. § 1252; see also Muratoski v. Holder, 622 F.3d 824, 831

(7th Cir. 2010).2

2. Seven Untranslated Written Statements

“A claim that the [Board] has completely ignored the

evidence put forth by a petitioner is an allegation of legal

error.” Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008).

Perez-Fuentes contends that the IJ ignored seven untranslated

written statements because the letters were in Spanish and the

IJ did not instruct the interpreter to read the letters into the

record. Citing to Niam v. Ashcroft, 354 F.3d 652, 658–61 (7th Cir.

2004), Perez-Fuentes argues that the absence of any reference

to the untranslated letters by either the IJ or the Board leaves

a “yawning void.”

In the oral decision, the IJ stated: “After careful consideration of the record in its entirety, I find the respondent has

failed to meet any of the requirements necessary for cancellation of removal.” Perez-Fuentes does not cite to any evidence

in the record that indicates the IJ, in fact, ignored these letters;

he indicates that the IJ only mentioned that the letters were

untranslated. In addition, Perez-Fuentes argues that since the

IJ did not reference the letters in his decision, it is evidence that

Even if Perez-Fuentes’ argument was reviewable, it lacks merit. At the 2

hearing, the IJ asked Perez-Fuentes whether he had any other witnesses. In

response, Perez-Fuentes indicated that he did, “but not anybody that ...

kn[ew] [him] as well as [Ruiz and Ochoa].” In light of this response, PerezFuentes’ claim that the IJ excluded the two witnesses is inaccurately

characterized. The IJ did not refuse to hear additional testimony. Instead,

the IJ gave Perez-Fuentes a reasonable opportunity to have the two

witnesses testify.
No. 14-2504 11

the IJ did not consider the letters. However, the IJ is not

required to mention each piece of evidence in its decision; the

IJ need only consider the evidence. See Boadi v. Holder, 706 F.3d

854, 859 (7th Cir. 2013). But, under these circumstances, given

the need for a translator and the proximity in time between the

IJ’s receipt of the letters and the IJ’s oral decision, it is unlikely

that the IJ could have considered the letters before rendering

its decision.

Nevertheless, even if the IJ did not consider the seven

untranslated written statements, Perez-Fuentes would have to

establish that the ignored letters were central to his claims, and

that the letters “may have had the potential to change the

outcome of the hearing.” Delgado, 674 F.3d at 768 (citing Galicia

v. Gonzales, 422 F.3d 529, 540 (7th Cir. 2005)). Perez-Fuentes

cites to specific details in the untranslated letters that are

relevant to the continuous physical presence and good moral

character requirements but does not cite to any specific details

in the letters as having any information regarding the “exceptional and extremely unusual hardship” requirement. In fact,

he does not argue that the letters contain any information

regarding the hardship requirement. While the letters may

have been central to some of his claims, they do not have the

potential to “change the outcome of the hearing.” As seen

above, Perez-Fuentes’ only challenge related to the hardship

requirement failed.

C. Remaining Challenges

There is no need to further consider Perez-Fuentes’ remaining challenges concerning the good moral character and

continuous physical presence requirements. Perez-Fuentes
12 No. 14-2504

failed to establish the requisite hardship requirement for

cancellation of removal. See Aparicio-Brito v. Lynch, 824 F.3d

674, 686 (7th Cir. 2016) (citation omitted).

III. CONCLUSION

For the foregoing reasons, we DISMISS Perez-Fuentes’

petition for review in part for lack of jurisdiction and DENY

the remainder of his petition for review.