Anacelia Perez-Roblero v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0488n.06

No. 09-3982

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ANACELIA PEREZ-ROBLERO, )
)
Petitioner, )
) ON PETITION FOR REVIEW FROM
v. ) ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General )
)
Respondent. )
)
)

Before: McKEAGUE and STRANCH, Circuit Judges; and MAYS, District Judge.*

SAMUEL H. MAYS, JR., District Judge. Petitioner Anacelia Perez-Roblero (“Perez-

Roblero”) seeks review of the Board of Immigration Appeals’ (the “BIA”) order denying

cancellation of removal and voluntary departure. For the following reasons, we DENY Perez-

Roblero’s petition for review.

I.

A native of Guatemala, Perez-Roblero entered the United States at age sixteen on December

7, 1992. Her immigration proceedings began on August 15, 2003, when she received a Notice to

Appear before the Executive Office for Immigration Review in Detroit, Michigan from the

Department of Homeland Security (the “Government”). At her appearance on February 4, 2005,

*
The Honorable Samuel H. Mays, Jr., United States District Judge for the Western
District of Tennessee, sitting by designation.
Perez-Roblero v. Holder, No. 09-3982

Perez-Roblero conceded that she was present without having been admitted or paroled and therefore

removable under Section 212(a)(6)(A)(I) of the Immigration and Nationality Act (the “Act”). She

also stated her intention to apply for two forms of discretionary relief: cancellation of removal, under

Section 240A(b)(1) of the Act, and voluntary departure, under Section 240B of the Act.

Immigration Judge Marsha K. Nettles (the “IJ”) held a hearing on Perez-Roblero’s requested

relief on April 9, 2008. After the IJ had received documentary evidence, Perez-Roblero testified on

her own behalf. The focus of Perez-Roblero’s testimony was the hardship that her three minor

children, all United States citizens, would suffer if she were removed to Guatemala. Perez-Roblero

testified about their health problems. She noted that her thirteen-year-old son, Hector, and her four-

year-old son, Cleybi, suffered from asthma and that Cleybi’s condition was serious enough to require

daily use of an inhaler and weekly use of a nebulizer to regulate his breathing. Perez-Roblero

expressed concern about the availability of medical care near her family’s home outside Sibinal, San

Marcos, Guatemala, testifying that she remembered traveling seven to eight hours by car to visit a

doctor as a child. She acknowledged, however, that she had not investigated the availability of

medical care for her children with anyone currently living there. Perez-Roblero also discussed the

effect that the lack of educational opportunity and social problems in Guatemala might have on her

children. She testified that her children might need to work instead of attend school and expressed

concern about gang activity near her family’s home. Perez-Roblero acknowledged, however, that

she did not know whether her nieces and nephews, who were living in Guatemala, worked or

attended school and that she was aware of gang activity near her home outside Detroit.

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After discussing the potential hardship to her children, Perez-Roblero admitted that she had

extensive family living in Guatemala, including all six of her siblings. Although she had stated on

a previously withdrawn asylum application that three of her siblings were living in the United States,

including her brother Ignacio, she explained that they had since returned to Guatemala. Perez-

Roblero testified that five of her six siblings now resided at her family’s home, where they worked

on a family farm, cultivating beans, corn, and coffee, some of which they used for subsistence and

some of which they sold for profit. She acknowledged that, if she were removed, her parents would

probably permit her and her children to live with them, at least temporarily. Perez-Roblero also

admitted that she had accumulated assets in the United States, including three automobiles with

clean titles, a home with $15,000 in equity, and $10,000 in savings.

After Perez-Roblero’s testimony, the IJ stated that she did not believe that Perez-Roblero’s

physical presence or moral character were at issue in determining her eligibility for cancellation of

removal and that her case would “come down to hardship.” The Government agreed. To support

the case for hardship, Perez-Roblero’s son Hector took the stand and reiterated much of his mother’s

testimony. However, Hector contradicted Perez-Roblero’s testimony on one, important point.

Although Perez-Roblero had testified that all of her siblings, including her brother Ignacio, were

living in Guatemala, Hector testified that Ignacio lived with them in Michigan. Hector said that

Ignacio had been present at their home when they left for his mother’s hearing.

After Hector’s testimony, Perez-Roblero took the stand to explain her prior testimony about

Ignacio’s presence in the United States. She initially said that she was “just nervous” when she

testified that she had no family members in the United States. She then said she was “afraid”

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because Ignacio had been caught driving while intoxicated recently. The IJ interrupted Perez-

Roblero’s testimony, said she had given contradictory explanations about her earlier testimony, and

asked why she “didn’t . . . tell . . . the truth” about Ignacio’s presence. Perez-Roblero responded that

“they’re going to deport him to Guatemala and he basically does not exist here.” The IJ asked,

“Madam, do you understand that what you told me was not the truth and that what you’ve essentially

done is justifying in your own mind why you should tell me something that is completely false?”

Perez-Roberlo answered, “Yes.” In response, the IJ said that she had reason to doubt whether any

of Perez-Roblero’s testimony about her past was true. Perez-Roblero responded that, with the

exception of her testimony about Ignacio’s presence, everything she had said was true.

Before stepping down, Perez-Roblero attempted to qualify for voluntary departure, saying

that she would leave the United States at her own expense if the IJ denied cancellation of removal

and that she had sufficient assets to purchase transportation and post a bond. After her testimony,

the parties gave closing arguments. In its closing, the Government noted that it had stipulated to

Perez-Roblero’s good moral character before her misstatement about Ignacio’s presence in the

United States. The Government urged the IJ to consider that misstatement.

After deliberating, the IJ rendered an oral decision denying cancellation of removal because

Perez-Roblero had not shown the statutorily required hardship, the statutorily required good moral

character, or entitlement to a favorable exercise of discretion. The IJ concluded that Perez-Roblero

had not established that her three United States citizen children would suffer the “exceptional and

extremely unusual hardship” required for cancellation of removal. Although the children “had some

medical issues,” Perez-Roblero had not shown more hardship than “ordinarily would be expected

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to result from an individual’s removal from the United States.” The IJ also concluded that Perez-

Roblero’s providing clearly false testimony under oath demonstrated her “complete lack of veracity,”

which made her unable to establish the required “good moral character” and demonstrated that she

was not entitled to a “favorable exercise of discretion” even if she could establish statutory

eligibility.

The IJ also denied Perez-Roblero’s application for voluntary departure. Although Perez-

Roblero had the financial means and valid travel documents required, the IJ explained that voluntary

departure was a “discretionary form of relief.” Concluding that “patently false testimony under oath

with respect to the presence of her brother” was a “significant, negative discretionary factor,” the IJ

denied voluntary departure.

The BIA adopted and affirmed the IJ’s conclusions. The BIA held that the IJ had properly

concluded that Perez-Roblero had failed to show that her removal would result in exceptional and

extremely unusual hardship to her three United States citizen children and therefore she was

ineligible for cancellation or removal. The BIA also held that the IJ had properly concluded that,

given her false testimony, Perez-Roblero’s applications for cancellation of removal and voluntary

departure should be denied in the exercise of discretion. The BIA did not decide whether Perez-

Roblero had established the good moral character required for both forms of discretionary relief.

II.

Where the BIA adopts the decision of an immigration judge and provides additional

commentary, we review the immigration judge’s decision, as supplemented by the BIA, as the final

administrative order. Shan Sheng Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009) (citing Ka v.

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Gonzales, 236 F. App’x 189, 191 (6th Cir. 2007)); Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir.

2007) (citing Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005)). To the extent we have

jurisdiction, we review questions of law de novo, but defer to the BIA’s reasonable interpretations

of the Act and its accompanying regulations. Zhao, 569 F.3d at 247 (citing Koulibaly v. Mukasey,

541 F.3d 613, 619 (6th Cir. 2008)); Al-Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009) (“The

BIA’s interpretation of the statute and regulations will be upheld unless the interpretation is arbitrary,

capricious, or manifestly contrary to the statute.”) (quoting Morgan v. Keisler, 507 F.3d 1053, 1057

(6th Cir. 2007)).

Except as provided elsewhere in the Act, we have jurisdiction to review a final order of

removal if the immigration judge who conducted the proceedings sits within this circuit and the

petitioner requests judicial review within thirty days of the BIA’s final order. See 8 U.S.C. §§

1252(a)(1), 1252(b)(1-2). The IJ who conducted Perez-Roblero’s removal proceedings sits in

Michigan, the BIA issued its final order on July 16, 2009, and Perez-Roblero filed her petition for

review on August 14, 2009. We have jurisdiction over Perez-Roblero’s petition for review unless

Congress has removed our jurisdiction in another provision of the Act.

The Act removes our jurisdiction to review denials of discretionary relief such as cancellation

of removal and voluntary departure. See id. § 1252(a)(2)(B). We may not review a decision about

discretionary relief unless an exception to that jurisdictional bar applies. See id. Because Perez-

Roblero seeks review of the BIA’s denial of her applications for cancellation of removal and

voluntary departure, we lack jurisdiction to review her claims unless an exception applies.

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III.

Under 8 U.S.C. § 1229b, the BIA may cancel removal of an alien who is removable from the

United States and adjust her status to that of a lawful permanent resident if four elements are

satisfied. See 8 U.S.C. § 1229b(b)(1). The alien must show that (1) she has been physically present

in the United States for at least ten years immediately preceding her application for cancellation of

removal, (2) she has been a person of “good moral character” during that period, (3) she has not been

convicted of certain enumerated offenses, and (4) her “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.” See id. “The government retains

discretion to deny relief even if the applicant satisfies all four elements.” Sanic v. Holder, 343 F.

App’x 62, 70 (6th Cir. 2009) (citing 8 U.S.C. § 1229b(b)(1) and Santana-Albarran v. Ashcroft, 393

F.3d 699, 702 (6th Cir. 2005)).

The BIA denied Perez-Roblero’s application for cancellation of removal for two reasons.

First, Perez-Roblero was not statutorily eligible because she had not shown that her removal would

cause “exceptional and extremely unusual hardship” to her United States citizen children. Second,

due to her “clearly false testimony,” Perez-Roblero was not “entitled to a favorable exercise of

discretion.”

A.

A petition seeking review of a BIA decision about cancellation of removal makes jurisdiction

a threshold issue. See Galicia Del Valle v. Holder, 343 F. App’x 45, 51 (6th Cir. 2009). The Act

divests us of jurisdiction to review BIA decisions about cancellation of removal under 8 U.S.C. §

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1229b. See 8 U.S.C. § 1252(a)(2)(B)(i). It also bars our review of any discretionary decisions by

the BIA, other than in asylum petitions. See id. § 1252(a)(2)(B)(ii).

Despite those provisions, we have jurisdiction to review at least two categories of claims

arising from BIA decisions about cancellation of removal. See id. § 1252(a)(2)(D); Aburto-Rocha

v. Mukasey, 535 F.3d 500, 502 (6th Cir. 2008) (explaining that there are at least two exceptions to

the jurisdictional bar—“one explicitly drawn by the statute, one inferred from its general

framework”). The Act explicitly provides us with jurisdiction to review “constitutional claims or

questions of law raised upon a petition for review filed with an appropriate court of appeals.” 8

U.S.C. § 1252(a)(2)(D); see Aburto-Rocha, 535 F.3d at 502. The Act’s framework implicitly

provides us with jurisdiction to review non-discretionary decisions, “even where they ‘underlie

determinations that are ultimately discretionary.’” Aburto-Rocha, 535 F.3d at 502 (citing Billeke-

Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir. 2004)).

Our binding precedent identifies at least one claim that falls within the latter category–the

exception permitting review of non-discretionary decisions underlying discretionary relief. See

Aburto-Rocha, 535 F.3d at 502-03. “[T]he choice by the BIA to disregard its own binding

precedent—even when deciding an issue that is within its discretion—is not itself a discretionary

decision Congress has excluded from review.” Id. at 503 (citing Billeke-Tolosa, 385 F.3d at 711-12)

(emphasis in original). In Aburto-Rocha, we held that, because the BIA must adhere to its

precedential decisions unless they are modified or overruled by the BIA or the Attorney General of

the United States, there is an “exception for non-discretionary decisions” implicit in the Act’s

framework that allows us to “review a claim that the BIA ignored its own precedent in ruling on a

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hardship application.” Id. (citing 8 C.F.R. § 1003.1(g)); see also Galicia del Valle, 343 F. App’x

at 51 (explaining that, where an alien “effectively contends the agency ignored its own precedent in

arriving at its conclusion,” we have jurisdiction to review the BIA’s hardship decision in considering

cancellation of removal); cf. Morales-Flores v. Holder, 328 F. App’x 987, 991-92 (6th Cir. 2009)

(considering petitioners’ argument that the BIA had applied “too restrictive” a standard in deciding

hardship for cancellation of removal without addressing jurisdiction).

Our unpublished decisions suggest that we must consider carefully whether an exception to

the jurisdictional bar applies. See Galicia Del Valle, 343 F. App’x at 51; Farraj v. Holder, 316 F.

App’x 398, 400 (6th Cir. 2009); Alshareqi v. Mukasey, 295 F. App’x 2, 5 (6th Cir. 2008). As we

recently explained, “simply calling a question ‘legal’ is not enough.” See Reyes v. Holder, No. 09-

4055, 2011 WL 477688, at *3 (6th Cir. Feb. 10, 2011). We have construed a claim that the BIA

“failed to demonstrate that it properly weighed all of the relevant factors used in assessing hardship,”

without elaborating what factors the BIA failed to consider, as a mere challenge to the BIA’s

discretionary hardship decision and therefore outside our jurisdiction. See Alshareqi, 295 F. App’x

at 5; accord Reyes, 2011 WL 477688, at *3 (concluding that we lacked jurisdiction where petitioners

were “merely disguising their challenges to the IJ’s and BIA’s factual and discretionary findings as

questions of law by cloaking them in legal terms”); Farraj, 316 F. App’x at 400 (concluding that,

if a claim “amounts to nothing more than a challenge to the IJ’s discretionary and fact-finding

exercises cloaked as a question of law,” the exception for constitutional claims and questions of law

does not apply (quoting Garcia-Aguillon v. Mukasey, 524 F.3d 848, 849-50 (8th Cir. 2008))). We

have exercised jurisdiction, however, after concluding that, “[r]ather than merely challenge the

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discretionary matter of weighing of the evidence, [the petitioner] effectively contend[ed] the agency

ignored its own precedent in arriving at its conclusion.” Galicia Del Valle, 343 F. App’x at 51; see

also Aburto-Rocha, 535 F.3d at 503; Billeke-Tolosa, 385 F.3d at 712.

Perez-Roblero argues that we have jurisdiction to review the BIA’s hardship decision

because the BIA and the IJ “unreasonably construed and failed to apply” applicable precedent in

denying cancellation of removal. She asserts that the BIA construed certain precedential decisions

“beyond their meaning and intent and misapplie[d] them to [her] and her children.” The

Government argues that we lack jurisdiction because the BIA’s hardship decision was discretionary

and asserts that Perez-Roblero’s argument is merely an invitation to reweigh the BIA’s factual

determinations.

Perez-Roblero’s argument that the BIA misconstrued and misapplied In re Monreal-

Aguinaga, 23 I. & N. Dec. 56 (BIA 2001) is not well-taken. She argues that the IJ’s “dismissive tone

suggests that she interprets [the case] as precluding serious consideration of country considerations.”

That argument speaks to the BIA’s weighing of the various factors, including “the political and

economic conditions in the country of return,” that, under In re Monreal-Aguinaga, should be

considered in deciding whether Perez-Roblero had established “exceptional and extremely unusual

hardship” to her United States citizen children. See 23 I. & N. Dec. at 63-64. It does not raise a legal

or non-discretionary question that provides us with jurisdiction. See Farraj, 316 F. App’x at 400;

Alshareqi, 295 F. App’x at 5.

Perez-Roblero’s argument about In re Gonzalez Recinas, 23 I. & N. Dec. 467 (BIA 2002),

a case in which the BIA concluded that an alien had met the statutory hardship requirement, is

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similar. The essence of her argument is that the BIA misapplied In re Gonzalez Recinas by failing

to recognize that her children had significant health issues, Guatemala had more negative country

conditions than the alien’s home country in In re Gonzalez Recinas, and she had worked for the same

employer for many years and had provided her children with a reliable standard of living. That

argument also speaks to the BIA’s weighing of the various factors under In re Monreal-Aguinaga.

See 23 I. & N. Dec. at 63-64. It does not raise a legal or non-discretionary question that provides us

with jurisdiction. See Farraj, 316 F. App’x at 400; Alshareqi, 295 F. App’x at 5.

Perez-Roblero raises two arguments about the BIA’s reliance on In re Andazola-Rivas, 23

I. & N. Dec. 319 (BIA 2002) that are different in kind. The first is that the IJ concluded that,

although In re Andazola-Rivas only mentions asthma in a single sentence and in reference to the

alien seeking relief, the BIA construed that case to mean that qualifying relatives, such as Perez-

Roblero’s United States citizen children, could not meet the statutory hardship requirement based

on their asthma. See 23 I. & N. Dec. at 324 (noting, when referring to the alien, that “[a]lthough she

reports suffering from asthma, that condition is apparently under control”). The second is that,

although In re Andazola-Rivas discusses the available educational opportunities for a full paragraph

and makes various statements comparing the quality of opportunities likely to be available in the

alien’s home country with the quality of those in the United States, the BIA construed the case to

mean that the availability in an alien’s home country of “any education at all would preclude a

finding of exceptional hardship.” See id. at 323.

The essence of those claims is that the BIA misconstrued and misapplied In re Anazola-Rivas

in deciding the hardship element. Under our binding precedent, that raises a non-discretionary

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question and provides us with jurisdiction under the implicit exception for non-discretionary

decisions underlying discretionary relief. See Aburto-Rocha, 535 F.3d at 503; Billeke-Tolosa, 385

F.3d at 712.

The Government argues that, regardless of any jurisdiction we might have over the hardship

decision, we lack jurisdiction to review the BIA’s decision on cancellation of removal because the

BIA denied that relief not only for want of hardship, but also in the exercise of its discretion.

According to the Government, where there are two alternative grounds for a decision by the BIA and

we lack jurisdiction to review one, we also lack jurisdiction over the other. Perez-Roblero argues

that the BIA also misconstrued and misapplied its precedent in denying cancellation of removal in

its discretion. The essence of her argument is that, in denying her application based solely on her

false testimony, the BIA ignored In re Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990).

Under our binding precedent, “the choice by the BIA to disregard its own binding

precedent—even when deciding an issue that is within its discretion—is not itself a discretionary

decision Congress has excluded from review.” Aburto-Rocha, 535 F.3d at 503 (citations omitted).

Under In re Edwards, “[t]he exercise of discretion in a particular case necessarily requires

consideration of all the facts and circumstances involved.” 20 I. & N. Dec. at 195 (“There must be

a balancing of the social and humane considerations presented in an alien’s favor against the adverse

factors evidencing his undesirability as a permanent resident.” (citation omitted)). Because Perez-

Roblero argues that the BIA considered her false testimony and no other factor, the essence of her

argument is that the BIA misconstrued and misapplied its precedent by ignoring In re Edwards’

balancing mandate. Cf. Alshareqi, 295 F. App’x at 5. That argument raises a non-discretionary

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question and provides us with jurisdiction under the exception for non-discretionary decisions

underlying discretionary relief. See Aburto-Rocha, 535 F.3d at 503; Billeke-Tolosa, 385 F.3d at 712.

Based on the foregoing, we have jurisdiction to review Perez-Roblero’s claims that the BIA

misconstrued and misapplied its precedent in deciding hardship and exercising its discretion.

B.

In reviewing claims that the BIA misconstrued and misapplied its precedent, we do not

“second guess every choice the agency makes about how to apply uncertain or even conflicting

precedents in a given context.” Aburto-Rocha, 535 F.3d at 503; see Galicia Del Valle, 343 F. App’x

at 51-52 (citation omitted). “What is generally true in administrative law remains true here: An

agency’s interpretation of its own precedents receives considerable deference.” Aburto-Rocha, 535

F.3d at 503 (citations omitted). As we have explained, deference is especially appropriate when

reviewing questions of law that arise in the context of otherwise non-reviewable, discretionary

decisions by the BIA. See id. “[S]tringently scrutinizing the BIA’s determinations of which

precedents apply in which contexts (and with what force) could easily devolve into—or even serve

as a mask for—replacing the BIA’s hardship judgment with our own.” Id. The question, therefore,

is “whether the BIA reasonably construed and applied its own precedents.” Id.; see Galicia Del

Valle, 343 F. App’x at 52 (citation omitted).

In her claim that the BIA misconstrued and misapplied In re Andazola-Rivas in deciding

whether she had established the requisite hardship, Perez-Roblero first argues that the BIA relied on

that decision to conclude that she was precluded from showing hardship based on her sons’ asthma.

Evaluating the health of Perez-Roblero and her United States citizen children, the IJ’s opinion states

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that “the issue of the medical condition of asthma arose in Matter of Andazola-Rivas.” In making

that statement, the IJ was considering “the health of the respondent and qualifying family members,”

under In re Monreal-Aguinaga. See 23 I. & N. Dec. at 63. Nothing in the IJ’s opinion suggests that

she construed In re Andazola-Rivas to mean that Perez-Roblero could not establish the requisite

hardship based on her sons’ asthma. In concluding that Perez-Roblero had failed to establish that

her sons would suffer that hardship because of their asthma, the IJ simply noted that In re Andazola-

Rivas also considered asthma.

Perez-Roblero’s second argument is that the BIA misconstrued In re Andazola-Rivas by

reading that case to stand for the proposition that “any education at all would preclude a finding of

exceptional hardship.” In considering an alien’s claims about reduced educational opportunities for

her children in In re Andazola-Rivas, the BIA recognized that her home country would probably not

provide them “with an education equal to that which they might obtain in the United States.” 23 I.

& N. Dec. at 323. The BIA concluded, however, that the alien “ha[d] not shown that her children

would be deprived of all schooling or of an opportunity to obtain any education.” Id. The IJ relied

on In re Andazola-Rivas in drawing the same conclusions about Perez-Roblero’s children.

The BIA “reasonably construed and applied its own precedents” in concluding that Perez-

Roblero had not shown that her United States citizen children would suffer exceptional and

extremely unusual hardship if she were removed to Guatemala. See Aburto-Rocha, 535 F.3d at 503.

Under our limited review, the BIA’s hardship decision was proper, and that decision made Perez-

Roblero statutorily ineligible for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(D);

Morales-Flores, 328 F. App’x at 992 (“Whether we may disagree with the IJ’s conclusions is

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irrelevant where the IJ’s consideration of the hardship factors comports with the language of the

statute and precedential decisions applying that provision.”). Because the BIA’s denial of

cancellation of removal was proper on the basis of hardship alone, we need not review the BIA’s

construction and application of its precedent in denying cancellation of removal in its discretion.

IV.

Under 8 U.S.C. § 1229c, the BIA may permit an alien to depart the United States voluntarily

at her own expense in lieu of being removed. See 8 U.S.C. § 1229c(a)(1). To be statutorily eligible,

the alien must show that (1) she has been physically present in the United States for at least one year

before issuance of her notice to appear; (2) she has been a person of “good moral character” for at

least five years before her application for voluntary departure; (3) she is not removable for an

aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) or for reasons related to national security

under 8 U.S.C. § 1224(a)(4); and (4) she has established by clear and convincing evidence that she

“has the means to depart the United States and intends to do so.” See 8 U.S.C. § 1229c(b)(1). Even

if an alien meets those requirements, an immigration judge may deny voluntary departure. See 8

U.S.C. 1229c(a)(1) (explaining that an immigration judge “may permit an alien voluntarily to depart

the United States at the alien’s own expense under this subsection”) (emphasis added). The BIA

denied Perez-Roblero’s application for voluntary departure in the exercise of its discretion.

The Act removes our jurisdiction to review BIA decisions about voluntary departure. See

8 U.S.C. § 1252(a)(2)(B)(i). Because voluntary departure is ultimately a discretionary decision,

jurisdiction is also barred by 8 U.S.C. § 1252(a)(2)(B)(ii). Although those provisions seemingly

foreclose review of BIA denials of applications for voluntary departure, there are exceptions. See

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Kharbach v. Holder, 362 F. App’x 473, 474 (6th Cir. 2010) (citing 8 U.S.C. § 1252(a)(2)(D)); Patel

v. Gonzales, 470 F.3d 216, 219-20 (6th Cir. 2006) (citing 8 U.S.C. § 1252(a)(2)(D)). As with

cancellation of removal, the Act explicitly permits our review of “constitutional claims or questions

of law raised upon a petition for review filed with an appropriate court of appeals.” 8 U.S.C. §

1252(a)(2)(D); Patel, 470 F.3d at 219-20; see Singh v. Holder, 326 F. App’x 378, 381-382 (6th Cir.

2009) (citing Patel, 470 F.3d at 219); cf. Marji v. Gonzales, 166 F.App’x 197, 200 (6th Cir. 2006)

(citing Abu-Khaliel v. Gonzales, 436 F.3d 627, 630-31 (6th Cir. 2006)). We also retain jurisdiction

to review non-discretionary decisions, “even where they ‘underlie decisions that are ultimately

discretionary,’” see Aburto-Rocha, 535 F.3d at 502; cf. Patel, 470 F.3d at 220 (concluding that non-

discretionary determinations are reviewable questions of law).

Perez-Roblero argues that, in exercising its discretion, the BIA misconstrued and misapplied

its precedent in denying voluntary departure. According to Perez-Roblero, the BIA ignored In re

Arguelles-Campos, 22 I. & N. Dec. 811 (BIA 1999), which enumerates the “many factors” to be

weighed “in exercising discretion with voluntary departure applications.” See 22 I. & N. Dec. at 817.

The Government argues that we lack jurisdiction to review the denial of voluntary departure because

the BIA denied that relief “as a matter of discretion.” Because Perez-Roblero argues “that the BIA

ignored its own precedent in ruling” on her application for voluntary departure, we have jurisdiction

over this non-discretionary question. Aburto-Rocha, 535 F.3d at 503.

We review the BIA’s construction and application of its precedent for reasonableness.

Aburto-Rocha, 535 F.3d at 503. In In re Arguelles-Campos, the BIA stated that “many factors may

be weighed in exercising discretion with voluntary departure applications.” Id. (explaining that

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“evidence of bad character or the undesirability of the applicant as a permanent resident” may be

weighed against “compensating elements such as long residence here, close family ties in the United

States, or humanitarian needs”). Unlike In re Edwards, which mandates a balancing of positive and

negative factors when the BIA exercises its discretion in considering cancellation of removal, In re

Arguelles-Campos simply articulates factors that may be considered when the BIA exercises its

discretion in considering voluntary departure. Compare In re Edwards, 20 I. & N. Dec. at 195

(explaining that “[t]here must be a balancing of the social and humane considerations presented in

an alien’s favor against the adverse factors evidencing his undesirability as a permanent resident”),

with In re Arguelles-Campos, 22 I. & N. Dec. at 817 (stating “that many factors may be weighed in

exercising discretion with voluntary departure applications”) (emphasis added).

Perez-Roblero has not shown that the IJ unreasonably applied BIA precedent to her claim.

In denying voluntary departure, the IJ explicitly relied on In re Arguelles-Campos, noting that it

permits denial as a matter of discretion. The IJ found that Perez-Roblero’s “provision of false

testimony under oath [was] a significant negative discretionary factor” and denied voluntary

departure.

Although Perez-Roblero argues that, instead of weighing the factors articulated in In re

Arguelles-Campos, the BIA considered only a single factor, her false testimony about her brother’s

presence in the United States, that consideration is not unreasonable under In re Arguelles-Campos.

In re Arguelles-Campos merely suggests factors that the BIA may weigh in considering voluntary

departure. See In re Arguelles-Campos, 22 I. & N. Dec. at 817. In re Arguelles-Campos does not

require the BIA to consider all of the factors it mentions. See id. Because In re Arguelles-Campos

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Perez-Roblero v. Holder, No. 09-3982

does not mandate factors that the BIA must consider in exercising its discretion about voluntary

departure, Perez-Roblero’s claim that the BIA considered only one factor is not well-taken.

V.

The BIA reasonably interpreted its precedents in deciding that Perez-Roblero had not

established the requisite hardship for cancellation of removal and did not merit a favorable exercise

of discretion for voluntary departure. Therefore, Perez-Roblero’s petition is DENIED.

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