2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-31-2010

Castro v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No.;08-1681

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-1681

_____________

ALBINA CASTRO, 

 Petitioner

v.

Attorney General of the United States,

 Respondent

_____________

On Petition for Review of a Decision and Order of

the Board of Immigration Appeals

(BIA No. A73-166-744)

Argued January 14, 2010

Before: AMBRO, CHAGARES, and STAPLETON, Circuit Judges.

(Filed August 31, 2010 )

______________

Mario Apuzzo (argued)

Law Offices of Mario Apuzzo

185 Gatzmer Avenue

Jamesburg, NJ 08831

Counsel for Petitioner
2

Gregory G. Katsas

Assistant Attorney General

Civil Division

Terri J. Scadron

Assistant Director 

Wendy Benner-León (argued)

Office of Immigration Litigation

United States Department of Justice

P.O. Box 878

Benjamin Franklin Station

Washington, DC 20044

Counsel for Respondent

______________

OPINION OF THE COURT

______________

CHAGARES, Circuit Judge.

Albina Castro petitions for review of a final order of removal issued by the Board

of Immigration Appeals (“BIA”). As explained below, we lack jurisdiction over her

claim that the Immigration Judge (“IJ”) gave insufficient consideration to certain

evidence, and hold that the IJ properly considered all hardship evidence presented

cumulatively as required. In addition, we reject Castro’s contention that the BIA’s

summary affirmance violated the Due Process Clause, and we find her contention that it

violated BIA regulations moot. Accordingly, we will dismiss the petition for review in

part, and deny it in part. 

I.

Because we write solely for the benefit of the parties, we will only briefly
3

summarize the essential facts. 

Castro, a citizen and native of Mexico, has resided in the United States

continuously since 1990. Shortly after entering the United States, she married Alejandro

Castro, with whom she had two children. They ended their relationship, although they

have never formally divorced.

She later entered into a relationship with another man, Juan Carlos Morrelle, with

whom she had a daughter. Her relationship with Morrelle ended shortly thereafter,

although Morrelle has continued to provide financial support for the child. 

Castro then entered a relationship with Jesus Patino, with whom she currently

resides. They have two children together, and Patino provides financial support for both

children, as well as Castro’s three children from prior relationships. Castro and Patino

own a home together, for which they split the down payment and mortgage payments. 

They currently have approximately $110,000 in home equity. 

Upon entering the United States, Castro worked as a babysitter, but then sought

work in a factory. She is now employed in that capacity with Loreal USA, and earns

approximately $44,000 per year. Her employer also provides health care to her and her

children. 

On May 27, 2005, the Department of Homeland Security initiated removal

proceedings against Castro. She was charged with removability as an alien who is present

in the United States without being admitted or paroled in violation of 8 U.S.C. §
4

1182(a)(6)(A)(i). Castro conceded that she is removable under the statute, but applied for

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

On July 24, 2006, after considering evidence presented by Castro, an IJ denied her

application for cancellation of removal, finding that she had failed to establish that her

removal would result in “exceptional and extremely unusual” hardship to her dependent

relatives. Castro appealed this decision to the BIA. On February 5, 2008, the BIA

adopted and affirmed the IJ’s decision without a written opinion. Castro then filed a

timely petition for review in this Court. After filing her petition for review, Castro filed a

motion for reconsideration, which the BIA denied in a written opinion. 

II.

Under 8 U.S.C. § 1252(a)(2)(B)(i), no court shall have jurisdiction to review

decisions regarding the granting of relief pursuant to § 1229b. However, § 1252(a)(2)(D)

provides an exception: courts may review BIA decisions insofar as they resolve

constitutional claims or questions of law in such cases. We have recognized this Court’s

authority to review such decisions, Papageorgiou v. Gonzales, 413 F.3d 356, 357-58 (3d

Cir. 2005), but have held that “[t]he jurisdictional grant of § 1252(a)(2)(D) is narrowly

circumscribed,” Jarbough v. Attorney General, 483 F.3d 184, 188 (3d Cir. 2008). 

Castro asserts that this Court has jurisdiction over what she claims is a question of

law: whether the IJ gave enough consideration to certain facts in determining that

Castro’s removal would not impose “exceptional and extremely unusual” hardship upon
 We also note that a petitioner may not circumvent this jurisdictional rule by 1

rebranding a contention that the IJ or BIA erroneously weighed evidence as a legal

argument. Here, Castro argues that the IJ’s imposition of such a high burden to her

claims of extreme hardship constituted a violation of her due process rights. We rejected

a similar claim in Jarbough. 483 F.3d at 189 (“We are not bound by the label attached by

a party to characterize a claim and will look beyond the label to analyze the substance of a

claim.”). To the extent Castro claims that her due process rights have been violated

because the IJ and BIA failed to find that she established exceptionally and extreme

hardship, we therefore lack jurisdiction over such a claim. 

5

Castro’s dependents. “[C]ourts have recognized arguments such as that an Immigration

Judge or the BIA incorrectly weighed evidence, failed to consider evidence or improperly

weighed equitable factors are not questions of law under § 1252(a)(2)(D).” Id. at 189; see

also Cospito v. Att’y Gen., 539 F.3d 166, 170 (3d Cir. 2008) (characterizing such claims

as “‘quarrels over the exercise of discretion and the correctness of the factual findings

reached by the agency’” and holding “that these contentions do not raise constitutional

claims or questions of law”) (quoting Emokah v. Mukasey, 523 F.3d 110, 119 (2d Cir.

2008)). 

Since “[t]he determination of whether the alien has established the requisite

hardship is a quintessential discretionary judgment,” Mendez-Moranchel v. Ashcroft, 338

F.3d 176, 179 (3d Cir. 2003), we lack jurisdiction to hear Castro’s claim in so far as she

claims that the IJ incorrectly weighed or considered the evidence presented. 

1

III.

Castro contends that the BIA ignored its own precedential decisions which set

forth the standard for “exceptional and extremely unusual” hardship. In support of this
 See IJ’s Oral Decision at 5 (“It is the totality of the circumstances that must [be] 2

weighed in the final analysis.”); id. at 6 (“All of these factors [may be] collectively

combined to find [that] the requisite hardship ha[s] been established.”); id. at 7 (“[A]ll the

factors, though not extreme in themselves, must be considered in the aggregate in

determining whether the necessary hardship exists.”); id. at 14 (“[W]hen balancing the

totality of the circumstances, unfortunately this hardworking mother of five, can not

[establish] that she . . . [has] demonstrate[d] exceptional and extremely unusual

hardship.”). 

6

assertion, she cites to prior BIA decisions holding that all hardship factors should be

considered in the aggregate. See, e.g., Matter of Recinas, 23 I. & N. Dec. 467, 472 (BIA

2002) (“Part of the analysis requires the assessment of hardship factors in their totality,

often termed a ‘cumulative’ analysis.”). Castro claims that the IJ failed to consider her

hardship factors in the aggregate. 

Castro is correct that we have jurisdiction to review a claim that the IJ or BIA

applied the incorrect legal standard in evaluating a petition. See Aburto-Rocha v.

Mukasey, 535 F.3d 500, 503 (6th Cir. 2008) (“The BIA’s regulations themselves indicate

that adherence to precedent is a non-discretionary act, as they require the agency to follow

its own precedents except to the extent they are modified or overruled by the BIA or the

Attorney General.”). However, in this case, it is clear that the IJ applied the correct

standard in evaluating the evidence presented by Castro. The IJ explicitly stated

numerous times that the hardship factors were being evaluated cumulatively, and there is 2

no evidence in the record that the IJ failed to do so. We therefore hold that the IJ applied

the correct standard, and Castro’s petition for relief on these grounds will be denied. 
7

IV.

Castro also claims that the BIA violated its own procedures by “streamlining” her

case when her appeal was decided in the form of a summary affirmance of the IJ’s

decision instead of the issuance of a written decision. She claims that in doing so, her due

process rights were violated. This Court has jurisdiction over challenges to the

constitutionality of BIA decisions under 8 U.S.C. § 1252(a)(2)(D). Papageorgiou, 413

F.3d at 358. “We have plenary review over constitutional challenges to immigration

procedures.” Dia v. Ashcroft, 353 F.3d 228, 238 (3d Cir. 2003). 

This Court has on numerous occasions entertained and rejected such claims,

holding that the streamlining of the immigration appeals process does not violate the

alien’s due process rights. See Papageorgiou, 413 F.3d at 359 (“[D]ue process challenges

to such summary BIA affirmances are without merit.”); see also Dia, 353 F.3d at 245. 

We will therefore hold that the BIA’s summary affirmance of the IJ’s opinion did not

deprive Castro of due process and deny her petition for review on these grounds.

In addition to her due process claim, Castro also claims that the BIA violated its

own regulations by streamlining her case. As an initial matter, we note that there is some

authority for the proposition that the BIA’s decision to interpret its own regulations to

allow streamlining of cases is discretionary, and we lack jurisdiction to hear such a case. 

See Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683-84 (7th Cir. 2006); Falcon

Carriche v. Ashcroft, 350 F.3d 845, 854 (9th Cir. 2003). But see Tsegay v. Ashcroft, 386
 We specifically note that Castro’s challenge in her petition for review is to the 3

BIA’s affirmance without an opinion, and not the affirmance by a single member. While

Castro has since raised the issue of whether the BIA’s decision to have a single member,

as opposed to a three-member panel, review the IJ’s decision was in violation of its own

regulations, she first did so in her motion for reconsideration, and has filed no petition for

review of the BIA’s denial of that motion with this Court. Since that issue is not properly

before us in this appeal, we do not address it in this Opinion. 

F.3d 1347, 1354-55 (10th Cir. 2004) (disagreeing with the Ninth Circuit’s reasoning in

Falcon Carriche). 

However, in the case currently before us, we need not decide the issue of

jurisdiction, because Castro’s claim is moot. Castro’s challenge is to the BIA’s

affirmance of the IJ’s decision without an opinion, but since she filed her petition for 3

review, the BIA issued a written opinion in her case in response to her motion for

reconsideration. Since it was the lack of a written opinion by the BIA which formed the

basis of Castro’s claim that the BIA failed to follow its own procedures by streamlining

her appeal of the IJ’s decision, and a written opinion has since been issued, we will deny

Castro’s claim on these grounds as moot. 

V.

For these reasons, the petition for review is dismissed in part and denied in part.