In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3912
R AMON H UMBERTO M ARIN -G ARCIA,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A097-448-489
A RGUED M AY 12, 2011—D ECIDED JULY 22, 2011
Before B AUER, F LAUM, and E VANS, Circuit Judges.
F LAUM, Circuit Judge. Ramon Humberto Marin-
Garcia 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 ad-
mitted into the United States, he was eligible for re-
moval. 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. C ONST. 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 con-
tinuous 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 “estab-
lishes 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 jurisdic-
tion 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 “excep-
tional 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, al-
though the immigration judge stated that the “children
undoubtedly . . . speak Spanish in order to speak to
their parents.” After considering the evidence, the im-
migration 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 Constitu-
tion. 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 be-
cause 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 juris-
diction 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 Im-
migration and Nationality Act not to cancel Marin-
Garcia’s removal, we retain jurisdiction over constitu-
tional 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 Marin-
Garcia’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, how-
ever. 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 Marin-
Garcia’s standing is in order. His chief argument centers
primarily on the rights of his daughters. Generally, how-
ever, 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 third-
party 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-jurisdic-
tional, 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 some-
one 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. Marin-
Garcia 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. Payne-
Barahona 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 misunder-
stands the third-party-standing inquiry. The govern-
ment maintains that Marin-Garcia lacks third-party
standing because his daughters do not have meritorious
claims. The doctrine of third-party standing is an ante-
cedent 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 discre-
tionary 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
Marin-Garcia’s chief argument is a constitutional one.
This is the distillation of his at-times-difficult-to-
follow 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.1 We indicated
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 argu-
ment 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
1
Throughout his brief, Marin-Garcia invokes to Fourteenth
Amendment, which by its terms applies to the states. The Fifth
Amendment provides the proper textual home for the argu-
ments that he makes. See San Francisco Arts & Athletics, Inc.
v. U.S. Olympic Comm., 483 U.S. 522, 542 & n.21 (1987).
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 argu-
ment further is not necessary, however, because Marin-
Garcia’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 dis-
cretion 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 them-
selves. See Monreal, 23 I. & N. Dec. at 63 (stating that
hardship to “the applicant for relief . . . cannot be consid-
ered 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
(providing a general summary of factors that immigra-
tion 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 argu-
ment—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 2 would appear
to hurt Marin-Garcia’s chances. Although Marin-Garcia
2
“The exclusion of aliens and the reservation of the power to
deport have no permissible counterpart in the Federal Gov-
ernment’s power to regulate the conduct of its own citizenry.”
Mathews v. Diaz, 426 U.S. 76, 80 (1976) (footnotes omitted).
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 govern-
ment exposes citizen-children to removal—in the non-
technical 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
(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 citizen-
children to immigration preferences contained in the
Immigration and Nationality Act. Under one of the provi-
sions 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 immigra-
tion 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. 3 The practice of
3
In Nguyen v. I.N.S., 533 U.S. 53, 60-61 (2001), the Court held
that a gender-based classification which related to the acquisi-
(continued...)
No. 10-3912 13
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. Con-
sistent 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 dis-
tinguish between aliens and non-aliens), “it is not for this
Court to question the wisdom of [Congress’s] choice,”
3
(...continued)
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 citizen-
children, 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 propor-
tion of one race than another does not run afoul of equal
protection guarantees).
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 Con-
gress’s authority over immigration matters. See Ayala-
Flores v. I.N.S., 662 F.2d 444, 446 (6th Cir. 1981) (a contrary
rule “would create a substantial loophole in the immigra-
tion 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 immi-
gration 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 discre-
tionary form of relief, [and therefore] does not confer
onto [the petitioner] a liberty or property interest.” Cham-
pion 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 D ENIED.
7-22-11