2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-7-2006

Delgado-Sanchez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4533

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 02-4533

 

JAIME DELGADO-SANCHEZ;

LORENZA JIMENEZ-TECANHUEY,

 Petitioners

 v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

On Petition for Review from an Order of the

Board of Immigration Appeals

(Board No. A77-034-273)

 

Submitted Under Third Circuit LAR 34.1(a)

on September 5, 2003

BEFORE: SLOVITER, ROTH and NYGAARD, Circuit Judges

(Opinion Filed: February 7, 2006)

 

O P I N I O N

 

ROTH, Circuit Judge:

Jaime Delgado-Sanchez and Lorenza Jiminez-Tecanhuey petition for review of the

Order of the Board of Immigration Appeals (BIA) denying their application for
cancellation of removal. We do not have jurisdiction to review this petition and therefore

will deny it.

Because the parties are familiar with the facts and procedural posture, we will

provide only a brief synopsis of the events leading up to the appeal.

Petitioners, husband and wife, are both citizens of Mexico. They entered the

United States, without inspection, in October 1988. The petitioners have three children,

one of whom was born in the United States and is a United States citizen. The petitioners

sought discretionary cancellation of removal under 8 U.S.C. §1229b(b)(1). 

On October 25, 1999, the Immigration Judge (IJ) issued an oral decision denying

petitioners’ application for cancellation of removal and approving petitioners’ application

for voluntary departure. The IJ found that no “exceptional and extremely unusual

hardship” would result from the petitioners’ removal. The petitioners appealed to the

BIA, which affirmed the IJ’s decision without opinion. The petitioners filed a timely

appeal. 

1. Judicial Review of “Exceptional and Extremely Unusual Hardship” Determinations

Under section 240A(b) of the Immigration and Naturalization Act (INA), the

Attorney General has discretion to cancel the removal of a non-permanent resident if,

among other factors, it is established “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 . . ..” 8 U.S.C. §1229b(b)(1)(D) (emphasis added). Subsection (a)(2)(B) of

8 U.S.C. provides that “no court shall have jurisdiction to review . . . any judgment

regarding the granting of relief under section . . . 1229b . . .,” thus barring judicial review
of cancellation of removal decisions. Because this case involves the granting of relief

under § 1229b, this jurisdictional bar is implicated. See Mendez-Moranchel v. Ashcroft,

338 F.3d 176, 179 (3d Cir. 2003). 

In Mendez-Moranchel, we held that “§ 1252(a)(2)(B)(i) strips us of jurisdiction to

review certain discretionary decisions under the Immigration and Naturalization Act as

enumerated by the statute,” and further “[t]he decision whether an alien meets the

hardship requirement in 8 U.S.C. §1229b is such a discretionary judgment.” Id. We also

noted that this decision was consistent with other circuits that considered whether the

hardship requirement was discretionary and thus unreviewable. Id. Therefore, because

the IJ’s determination was based on a finding that the “exceptional and extremely unusual

hardship” requirement was not met, which was within his discretionary power, we lack

jurisdiction to review the decision to deny the petitioners application for cancellation of

removal.

2. Due Process Violation

Petitioners also claim that they were denied their due process rights when the BIA

summarily affirmed the decision of the IJ. Pursuant to 8 C.F.R. § 3.1(a)(7), the BIA may

affirm, without opinion, the decision of the IJ if the Board determines the result was

correct and any errors were harmless and immaterial. 8 C.F.R. § 3.1(a)(7)(ii). 

In Dia v. Ashcroft, 353 F.3d 228 (3rd Cir. 2003), we concluded that these

streamlining regulations do not violate due process. Id. at 238. Because the streamlining

regulations comport with due process, the BIA’s actions in affirming the IJ’s order

without opinion were proper. Therefore, the petitioners’ due process rights were not
violated.

In conclusion, because we do not have jurisdiction to review this appeal, we will

deny the petition for review.