In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3912

RAMON HUMBERTO MARIN-GARCIA,

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. A097-448-489

ARGUED MAY 12, 2011—DECIDED JULY 22, 2011

Before BAUER, FLAUM, and EVANS, Circuit Judges.

FLAUM, Circuit Judge. Ramon Humberto MarinGarcia seeks to prevent the government from removing

him from the country. He argues chiefly that doing

so would violate the constitutional rights of his three

daughters, natural-born United States citizens who will

travel to Mexico with him if we deny his petition for

review. Although we agree that he has standing to make
2 No. 10-3912

the argument, we reject it on the merits. His secondary

arguments fare no better. Accordingly, we deny his

petition for review.

I. Background

Marin-Garcia is a Mexican citizen. In June 1991,

he entered the United States “without inspection.” See

8 U.S.C. § 1225(a)(3). Because he was not properly admitted into the United States, he was eligible for removal. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1). In

2003, the Department of Homeland Security initiated

removal proceedings. During the 12 years between his

arrival and the start of removal proceedings, Marin-Garcia

got married and took the helm of a small family. Although

his wife also lacks legal status, he pays taxes and has a

home in Beloit, Wisconsin. Each of his three daughters

was born in this country. Therefore, they are citizens of

the United States. U.S. CONST. amend. XIV, § 1, cl. 1;

8 U.S.C. § 1401.

In the proceedings against him, Marin-Garcia did not

contest his removability. Rather, he sought cancellation

of removal under 8 U.S.C. § 1229b(b). The provision

puts discretion in the hands of the Attorney General to

cancel the removal of an alien if four criteria are

satisfied: (1) he has been in the United States for 10 continuous years immediately preceding the application

for cancellation; (2) he has been a person of good moral

character during that period; (3) he has not been convicted

of certain statutorily specified offenses; and (4) he “establishes that removal would result in exceptional and
No. 10-3912 3

extremely unusual hardship to [his] 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)(A)-(D). By the statute’s terms, all four

criteria must be satisfied, and we generally lack jurisdiction to question the Attorney General’s decision not to

exercise his discretion. See 8 U.S.C. § 1252(a)(2)(B)(i);

8 U.S.C. § 1252(a)(2)(D).

In evaluating the four cancellation criteria, the key

issue for the immigration judge (and stumbling block

for Marin-Garcia) related to the fourth requirement of

§ 1229b(b)—whether removal would result in “exceptional and extremely unusual hardship” to Marin-Garcia’s

citizen-children. His daughters are natural-born United

States citizens, between 10 to 15 years of age (at the time

of the removal proceedings). One is asthmatic, and her

condition could be exacerbated by the dusty roads in

the area of Mexico to which Marin-Garcia would return.

The other two daughters have had medical conditions

that appear less-obviously severe. All of the girls would

be without health insurance in Mexico. The daughters

also would face educational challenges. There is some

indication that none reads or writes in Spanish, although the immigration judge stated that the “children

undoubtedly . . . speak Spanish in order to speak to

their parents.” After considering the evidence, the immigration judge reasoned that the challenges faced by

Marin-Garcia’s family were not sufficiently serious to

qualify as exceptional and extremely unusual. Therefore,

the judge concluded that Marin-Garcia was ineligible

for cancellation of removal under § 1229b(b). The Board
4 No. 10-3912

of Immigration Appeals agreed with the immigration

judge’s reasoning and dismissed the appeal that followed.

Marin-Garcia has now filed a petition for review with

us, contending chiefly that removing him from the

United States would violate the United States Constitution. Specifically, Marin-Garcia argues that the Board’s

framework for evaluating cancellation requests, beginning

with a decision called Matter of Monreal, 23 I. & N. Dec. 56

(BIA 2001), violates the equal protection rights of his

daughters. His principal argument is that the Board’s

application of Section 1229b(b)(1)(D)—exceptional and

extremely unusual hardship—is unconstitutional because the Board’s framework compares the hardship

of citizen-children to the hardship of aliens in general,

rather than comparing the hardship of citizen-children

to “the citizen children population at large.” Petitioner’s

Brief at 8. Meanwhile, the government argues that a

prudential limitation on the exercise of federal jurisdiction prevents us from entertaining his arguments.

The government maintains that Marin-Garcia does not

have standing to advance arguments based on the

interests of his daughters.

II. Discussion

Although we generally lack jurisdiction to review the

Attorney General’s discretionary decision under the Immigration and Nationality Act not to cancel MarinGarcia’s removal, we retain jurisdiction over constitutional claims and matters of law. 8 U.S.C. § 1252(a)(2)(D);

Frederick v. Holder, No. 09-2607, 2011 WL 1642811, at *4
No. 10-3912 5

(7th Cir. May 3, 2011). Typically our review of such

matters is de novo, see Barradas v. Holder, 582 F.3d 754,

765 (7th Cir. 2009), but in this case we view MarinGarcia’s argument for the first time; below, the Board

concluded that it was not empowered to entertain

the constitutional challenges that Marin-Garcia raises.

We conclude as follows: Marin-Garcia has third-party

standing to make the arguments he advances on behalf

of his daughters. He cannot succeed on the merits, however. Among other problems, his chief constitutional

argument is based on an erroneous reading of the

Board’s decision in Matter of Monreal, a case which sets

out the agency’s framework for determining whether

removing an alien would cause citizen-relatives to

suffer an “exceptional and extremely unusual hardship”

within the meaning of 8 U.S.C. § 1229b(b)(1)(D).

A. Third-Party Standing

Before we address the merits, a discussion of MarinGarcia’s standing is in order. His chief argument centers

primarily on the rights of his daughters. Generally, however, Person A is not entitled to advance the legal

interests of Person B in federal court. That is, even

though a person may suffer an injury that satisfies the

constitutional case or controversy requirement of Article

III, Section 2 of the United States Constitution, Singleton

v. Wulff, 428 U.S. 106, 112-13 (1976), he generally may

not redress his injury by reference to someone else’s

rights, Barrows v. Jackson, 346 U.S. 249, 255 (1953). See

also U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 720 (1990)
6 No. 10-3912

(observing that “[t]his is generally so even when the very

same allegedly illegal act that affects the litigant also

affects a third party”). The presumption against thirdparty standing is a “prudential limitation on the exercise

of federal jurisdiction.” Miller v. Albright, 523 U.S. 420,

445 (1998) (O’Connor, J., concurring). It is a pre-jurisdictional, threshold question for federal courts, see Tenet v.

Doe, 544 U.S. 1, 6 n.4 (2005), which “recognizes that

claims are best prosecuted by those who actually have

been injured, rather than by someone in their stead,”

Massey v. Wheeler, 221 F.3d 1030, 1035 (7th Cir. 2000).

Despite the general impediment to advancing someone else’s interests, the Supreme Court has held that a

person may litigate another’s rights in his own cause

so long as three criteria are satisfied: (1) the litigant

must have suffered an injury in fact; (2) the litigant must

have a close relation to the third party; and (3) there

must exist some hindrance to the third party’s ability to

protect his or her own interest. Powers v. Ohio, 499 U.S.

400, 410-11, 415 (1991) (holding that a criminal defendant

had standing to raise the equal protection rights of a

would-be juror excluded from service by the prosecution).

All three criteria have been satisfied in this case. MarinGarcia has suffered a concrete injury in the form of his

removal order and impending removal from the United

States. He is by definition closely related to his daughters.

As to the third requirement, his daughters are minor

children and therefore are “hindered” from bringing suit

themselves. Smith v. Organization of Foster Families for

Equality and Reform, 431 U.S. 816, 841 n.44 (1977). Moreover,
No. 10-3912 7

Marin-Garcia is in the best position to litigate the case,

because he is the only party to the immigration

proceeding, even though his daughters’ rights may be

affected. The First Circuit, on similar facts with similar

arguments, has reached the same conclusion. PayneBarahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007) (reasoning

that “the requirements in Powers . . . appear easily met

in this instance”). 

The government’s argument to the contrary misunderstands the third-party-standing inquiry. The government maintains that Marin-Garcia lacks third-party

standing because his daughters do not have meritorious

claims. The doctrine of third-party standing is an antecedent question that we answer in order to tell us

if we may reach the merits. Having answered in the

affirmative, we proceed. 

B. Merits

The merits are where Marin-Garcia’s petition founders.

As we noted above, federal appeals courts ordinarily

lack jurisdiction to review the Attorney General’s discretionary decisions regarding cancellation of removal

under 8 U.S.C. § 1229b(b). The general bar appears in

8 U.S.C. § 1252(a)(2)(B)(i), which provides that “no

court shall have jurisdiction to review . . . any judgment

regarding the granting of relief under section . . . 1229b . . .

of this title. . . .” Under Section 1252(a)(2)(D), however,

we retain jurisdiction to review constitutional matters

and questions of law.
8 No. 10-3912

Throughout his brief, Marin-Garcia invokes to Fourteenth 1

Amendment, which by its terms applies to the states. The Fifth

Amendment provides the proper textual home for the arguments that he makes. See San Francisco Arts & Athletics, Inc.

v. U.S. Olympic Comm., 483 U.S. 522, 542 & n.21 (1987).

Marin-Garcia’s chief argument is a constitutional one.

This is the distillation of his at-times-difficult-tofollow argument: the Board of Immigration Appeals, in

evaluating the hardship that removing illegal aliens inflicts on

citizen-relative family members, compares the hardship inflicted

on citizen-relatives to the hardship inflicted on other aliens. The

proper comparison group is other citizen-relatives of United

States citizens (who, of course, do not face removal). Therefore,

the Board’s framework violates the equal protection component

of the Fifth Amendment’s due process clause. We indicated

1

our skepticism about a nearly identical argument, though

we did not take it up, in Leyva v. Ashcroft, 380 F.3d 303, 305

(7th Cir. 2004). In Leyva, we did not address the argument head-on because at the time there was a more

stringent jurisdictional bar than exists today.

In giving additional attention to the matter now, we

observe that the first half of Marin-Garcia’s argument

never gains traction. He derives the Board’s allegedly

unconstitutional framework for evaluating exceptional

and extremely unusual hardship from the latter’s

decision in Matter of Monreal, 23 I. & N. Dec. 56 (BIA

2001), and contends that the Board’s decision compares

the hardship of citizen-relatives to the hardship of aliens.

Although it is not precisely clear what he means by
No. 10-3912 9

that statement, he does not seem to take issue with the

fact that Section 1229b(b)(1)(D) takes into consideration

the hardship that an alien’s removal may impose on a

lawful permanent resident. Cf. Toll v. Moreno, 458 U.S. 1,

43-44 (1982) (indicating that states generally possess

few legitimate reasons to distinguish between citizens

and lawfully resident aliens). Homing in on the argument further is not necessary, however, because MarinGarcia’s offers an insupportable reading of Monreal. In

that decision, the Board comprehensively explored the

meaning and implications of Congress’s requirement

that only “exceptional and extremely unusual hardship”

to close relatives can trigger the Attorney General’s discretion to cancel an alien’s removal. The decision traced

the history of the statutory language and thoughtfully

analyzed Congress’s non-self-defining language in

8 U.S.C. § 1229b(b)(1)(D).

At no point in the decision did Monreal suggest that

the hardship of citizen-relatives of aliens must or could

be compared to the hardship endured by aliens themselves. See Monreal, 23 I. & N. Dec. at 63 (stating that

hardship to “the applicant for relief . . . cannot be considered under the cancellation statute, where only hardship

to qualifying relatives . . . may be considered”). Nor

does the decision make distinctions on the basis of race,

as Marin-Garcia intimates. Rather, just like the statutory

language that Congress enacted, Monreal teaches that to

trigger the Attorney General’s discretion under Section

1229b(b)(1)(D) the hardship to citizen-relatives must be

greater than the typical hardship endured by close

family members when an alien is removed. Id. at 63-64
10 No. 10-3912

“The exclusion of aliens and the reservation of the power to 2

deport have no permissible counterpart in the Federal Government’s power to regulate the conduct of its own citizenry.”

Mathews v. Diaz, 426 U.S. 76, 80 (1976) (footnotes omitted).

(providing a general summary of factors that immigration judges should consider). The language of the statute

and the discussion in Monreal is straightforward—as is

the discussion in the subsequent cases applying Monreal.

See Matter of Recinas, 23 I. & N. Dec. 467, 468-69 (BIA

2002); Matter of Andaloza, 23 I. & N. Dec. 319, 321 (BIA

2002). Simply put, the premise of Marin-Garcia’s argument—that some constitutional ill flows from the

Board’s practice of comparing citizen-relatives to aliens—

is incorrect. The collapse of the argument’s premise

takes the conclusion with it.

The other half of Marin-Garcia’s principal argument is

that the equal protection component of the due process

clause, see Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954), is

violated because Section 1229b(b)(1)(D) as applied by

the Board does not compare citizen-relatives of aliens

to citizen-relatives of U.S. citizens. In Marin-Garcia’s

estimation, “[t]he acceptable measurement standard

when analyzing exceptional and extremely unusual

hardship to United States citizen children ought to be

how . . . any of the approximately 74,718,000, under 18 year

old United States citizens . . . [would] suffer if forced

to abandon the United States . . . .” Petitioner’s Brief at

24. That entirely hypothecated inquiry would appear 2

to hurt Marin-Garcia’s chances. Although Marin-Garcia
No. 10-3912 11

does not set out to explain how his proposed standard

might play out, it would seem that the shorter the time

period that a family has remained in the United States,

the stronger the cultural, familial, and economic ties to

the country from which the family emigrated. Thus, the

standard he proposes would make it less likely

that (more recently arrived) aliens could establish their

eligibility for cancellation of removal under Section

1229b(b). We need not remand an immigration case

where doing so would prove futile. See Shou Wei Jin v.

Holder, 572 F.3d 392, 396 (7th Cir. 2009).

Moreover, it seems that Marin-Garcia’s real (if never

fully articulated) contention is that due process or equal

protection of the laws goes unfulfilled when the government exposes citizen-children to removal—in the nontechnical sense—when their parents are forced to leave.

After all, children whose parents are United States

citizens will not face the specter of being taken to a land

they have never known, and being effectively forced to

leave the country may deprive a person of “all that

makes life worth living.” See Ng Fung Ho v. White, 259

U.S. 276, 284 (1922). However, Congress’s authority over

immigration matters is expansive. See Mathews v. Diaz,

426 U.S. 67, 81 (1976). “Congress has . . . exceptionally

broad power to determine which classes of aliens may

lawfully enter the country.” Fiallo v. Bell, 430 U.S. 787, 794

(1977). A necessary corollary of Congress’s gate-keeping

power is the authority to remove someone who has

unlawfully entered. And although equal protection

requires “that all persons similarly circumstanced shall

be treated alike,” Plyler v. Doe, 457 U.S. 202, 216 (1982)
12 No. 10-3912

In Nguyen v. I.N.S., 533 U.S. 53, 60-61 (2001), the Court held 3

that a gender-based classification which related to the acquisi-

(continued...)

(quotation marks omitted), the constitution “does not

require things which are different in fact . . . to be treated

in law as though they were the same,” id. (quoting Tigner

v. Texas, 310 U.S. 141, 147 (1940)).

In Fiallo, the Court considered a challenge brought by

illegal immigrant fathers and their illegitimate citizenchildren to immigration preferences contained in the

Immigration and Nationality Act. Under one of the provisions at issue, for example, a mother could gain entry into

the United States if her child was a citizen, skirting other

immigration requirements along the way. However, the

natural father of such a child, if the child was

illegitimate, was not entitled to preferential treatment.

Fiallo, 430 U.S. at 788-90. Although the Court recognized

that the regime discriminated against men and would

burden the interests of citizens by preventing their

loved ones from entering the United States, see id. at 794-

95 & n.6, it noted Congress’s broad powers over immigration matters and ruled that it would not apply “a more

exacting standard” than to ask whether Congress or the

executive advanced “a facially legitimate and bona fide

reason” for acting in the manner it had chosen. See id.

at 794-95 (quoting Kleindienst v. Mandel, 408 U.S. 753,

770 (1972)).

Marin-Garcia does not convincingly explain why

a more stringent standard should apply here, and

we perceive no good reason ourselves. The practice of

3
No. 10-3912 13

(...continued) 3

tion of citizenship by children born abroad survived heightened

scrutiny, but the Court explicitly left undisturbed prior case

law indicating that a lower standard governed. In any event,

there is no indication that the Board has applied Section

1229b(b) based on classifications to which heightened scrutiny

applies. Likewise, there is no indication that aliens are subject

to removal proceedings because they have produced citizenchildren, as would be necessary for Marin-Garcia’s equal

protection theory to be viable. See Rogers v. Lodge, 458 U.S. 613,

618 (1982) (noting that a regime that affects a greater proportion of one race than another does not run afoul of equal

protection guarantees).

removing aliens with citizen-children is constitutionally

sound, and we also perceive no constitutional infirmity

with the statute. Section 1229b(b)(1)(D) distinguishes

between aliens who have close citizen-relatives in the

United States and aliens who do not. Only if an alien

has close citizen-relatives may the Attorney General

cancel removal. Thus, Section 1229b(b) puts a thumb

on the scale in favor of otherwise-removable aliens like

Marin-Garcia. The provision reflects the legitimate and

long-recognized Congressional policy of protecting the

integrity of the family unit. See I.N.S. v. Errico, 385 U.S. 214,

220 (1966). But nothing in the constitution prohibits

Congress from placing robust limits on that policy. Consistent with the expansive nature of Congress’s power

over immigration matters, e.g., Diaz, 426 U.S. 67, 78 n.12

(noting the variety of statutory provisions that distinguish between aliens and non-aliens), “it is not for this

Court to question the wisdom of [Congress’s] choice,”
14 No. 10-3912

Negusie v. Holder, 555 U.S. 511, ___, 129 S. Ct. 1159, 1180 n.2

(2009), to make it difficult to establish exceptional and

extremely unusual hardship under Section 1229b(b)(1)(D).

See also id. (“ ‘[O]ver no conceivable subject is the

legislative power of Congress more complete than it is

over’ the decision of Congress to admit or exclude

aliens.”) (quoting Oceanic Steam Nav. Co. v. Stranahan, 214

U.S. 320, 339 (1909)). Moreover, even if a more

searching inquiry applied, Section 1229b(b)(1)(D) would

survive. If an alien could avoid the consequences of

unlawful entry into the United States by having a child,

it would create perverse incentives and undermine Congress’s authority over immigration matters. See AyalaFlores v. I.N.S., 662 F.2d 444, 446 (6th Cir. 1981) (a contrary

rule “would create a substantial loophole in the immigration laws”). Of course, Marin-Garcia has not convinced

us that a more searching standard should apply, and

several other circuits have ruled that the removal of an

illegal alien does not work a constitutional violation on

the alien’s citizen-children. See Payne-Barahona, 474 F.3d

at 2 & n.1 (collecting cases and noting that “[t]he

circuits that have addressed the constitutional issue

(under varying incarnations of the immigration laws and

in varying procedural postures) have uniformly held

that a parent’s otherwise valid deportation does not

violate a child’s constitutional right”). To the extent our

own precedent was not clear, we make it explicit today.

A couple remaining matters merit only brief mention.

At one point, Marin-Garcia asserts his own claim in his

petition. He argues that the proceedings before the immigration judge denied him process in the Mathews v. Eldridge
No. 10-3912 15

mold. See 424 U.S. 319, 334-35 (1976). A procedural due

process claim cannot survive without the existence of a

protected liberty or property interest. Cancellation of

removal under Section 1229b(b), however, “is a discretionary form of relief, [and therefore] does not confer

onto [the petitioner] a liberty or property interest.” Champion v. Holder, 626 F.3d 952, 957 (7th Cir. 2010). Therefore,

the procedural due process claim fails. Marin-Garcia

also argues that removing him would unconstitutionally

burden the voting rights of his daughters. It would not.

If Marin-Garcia were to take his daughters to Mexico,

they would be able to return to America to live and

vote upon reaching the appropriate age. If they opted

not return to the country, they would still be able to

obtain absentee ballots pursuant to the Uniformed and

Overseas Citizens Absentee Voting Act. See 42 U.S.C.

§ 1973ff et seq.

III. Conclusion

For the reasons set forth above, Marin-Garcia’s petition

for review is DENIED. 

7-22-11