File Name: 06a0807n.06
Filed: November 2, 2006
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 05-4550
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
VICENTE BRICENO DORADO,
Petitioner,
v. ON APPEAL FROM THE
BOARD OF IM M IGR ATION
ALBERTO GONZALES, APPEALS
Respondent.
/
Before: MARTIN and COOK, Circuit Judges; BERTELSMAN, District Judge.*
BOYCE F. MARTIN, JR., Circuit Judge. Vincente Briceno Dorado, a native and citizen of
Mexico, appeals a judgment from the Board of Immigration Appeals denying his application for
cancellation of removal under section 240A(b) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1229b(b). In affirming the immigration judge’s decision, the Board found that Briceno did
not qualify for “exceptional and extremely unusual hardship” under the statute. For the reasons
discussed below, we AFFIRM the decision of the Board.
I
*
The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern
District of Kentucky, sitting by designation.
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Briceno entered the United States without inspection in July 1989. He was involved in a
relationship with a woman named Elena Bonilla, a citizen of Nicaragua, with whom he had two sons:
Nestor Vincente Briceno (born October 19, 1992), and Luis Alexis Briceno (born September 28,
1995). A third son of Bonilla, Jesus Charles Sanchez (born November 26, 1990), also lives in
Briceno’s household and Briceno testified that “I consider him my son.” But Briceno also admitted
that Jesus is not his biological son, nor has he adopted Jesus. The three boys are United States
citizens. Ms. Bonilla has filed an application for asylum as well as an application for benefits under
the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Pub. L. No. 105-100,
Title II, 111 Stat. 2193 (1997). She is apparently physically unable to work, and thus Briceno is and
has been the sole wage-earner for the household.
Removal proceedings were initiated against Briceno on January 24, 2002, in San Francisco,
California. Briceno conceded removability based on his prior entry without inspection, and
requested relief in the form of cancellation of removal under INA § 240A(b) or, in the alternative,
voluntary departure under INA § 240B. On November 10, 2003, Briceno requested a change in
venue because he had moved to Knoxville, Tennessee. This request was granted, and his
cancellation of removal hearing was considered by an immigration judge in Memphis on August 17,
2004. Briceno was represented by counsel at this hearing.
The immigration judge found that Briceno met the 10-year “physical presence” required
under INA § 240A(b). However, the judge found that Briceno had not met the statute’s “good moral
character” requirement. Briceno was only able to produce tax returns from four of the ten years he
had been living in the United States, was unable to offer a sound explanation for his failure to pay
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certain back taxes under a 1996 agreement with the Internal Revenue Service, and had represented
himself as being married on several years’ tax returns, even though he testified that he had never
been married. The judge also found that Briceno had not demonstrated the requisite “exceptional
and extremely unusual hardship” required under INA § 240A(b). At his hearing, Briceno advanced
three witnesses whom he alleged could speak to the hardship issue beyond that to which Briceno
himself had testified: his elder son, Nestor; his self-declared son, Jesus; and Cindy Mire, a woman
who attended the same church as Briceno and his sons. The immigration judge refused to hear
testimony from Jesus, because he was not Briceno’s son; and he refused to hear testimony from Ms.
Mire, because she was not a member of Briceno’s family. The judge did, however, hear testimony
from Nestor. In making his hardship determination, the judge only considered hardship as to
Briceno’s two biological sons, Nestor and Luis. Important factors in the judge’s decision were that
neither boy had physical or emotional problems, that there was no evidence Briceno could not work
in Mexico and send them money should they need it, and that Ms. Bonilla was an asylum and
NACARA applicant and thus unlikely to be separated from her children due to her own removal.
Briceno was ultimately granted voluntary departure, but no more.
In his appeal to the Board of Immigration Appeals, Briceno submitted additional evidence
from a clinical psychologist who had interviewed Nestor, Luis, and Jesus. The psychologist
concluded that if the children were forced to live in Mexico due to Briceno’s removal, “they will all
likely develop a reactive depression.” The psychologist further concluded that the impact of
Briceno’s removal on all three children would be “devastating.” In a per curiam opinion dated
November 17, 2005, the Board affirmed the decision of the immigration judge:
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The Mexican respondent did not meet his burden of proof for cancellation of removal
because he did not show his removal would result in exceptional and extremely
unusual hardship to his two United States children, who are his only qualifying
relatives under the cancellation law. We need not and do not reach the Immigration
Judge’s alternate grounds for denying such relief. The respondent’s failure to meet
the statutory hardship requirement disqualifies him for cancellation of removal,
regardless of whether he meets the additional requirements for such relief.
The respondent claims on appeal that the Immigration Judge unfairly
truncated the hearing despite the presence of additional witnesses, but he waived this
argument by failing to object at the hearing. Contrary to the respondent’s allegations,
we find the Immigration Judge’s conduct of the hearing was well within proper
judicial bounds. The respondent received a fair hearing and was accorded procedural
due process. On appeal, he has submitted a psychologist’s report. As an appellate
body, this Board generally considers the record as it existed before the Immigration
Judge. Even if we were to consider the proffered report, it would not alter the result
in this case.
Briceno appeals the decision of the Board on the following two grounds: (1) that his due process
rights were violated by the immigration judge’s refusal to accept “hardship” testimony from Jesus
Sanchez; and (2) that his due process rights were violated by the Board’s failure to remand to the
immigration judge for further proceedings in light of new evidence proffered by Briceno regarding
the negative psychological effect his departure would have on Nestor, Luis, and Jesus.
II
This Court lacks jurisdiction to review denials of discretionary relief by an immigration
judge, including denial of an application for cancellation of removal. INA § 242(a)(2)(B)(i); see also
Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005); Valenzuela Alcantar v. INS, 309
F.3d 946, 950 (6th Cir. 2002) (holding that “the immigration judge’s determination of the ‘extreme
hardship’ issue is not subject to judicial review”). However, in cases in which colorable
constitutional claims and questions of law are raised regarding the removal proceedings, this Court
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does have jurisdiction: “Fifth Amendment guarantees of due process extend to aliens in [removal]
proceedings, entitling them to a full and fair hearing.” Huicochea-Gomez v. INS, 237 F.3d 696, 699
(6th Cir. 2001).
In removal proceedings, while an alien is entitled to “a reasonable opportunity . . . to present
evidence on the alien’s own behalf,” INA § 240(b)(4)(B), evidentiary matters are not subject to the
Federal Rules of Evidence and thus this Court “review[s] evidentiary rulings by IJs only to determine
whether such rulings have resulted in a violation of due process.” Singh v. Ashcroft, 398 F.3d 396,
407 (6th Cir. 2005). This Court reviews alleged due process violations in removal hearings de novo.
Hassan v. Gonzales, 403 F.3d 429, 435 (6th Cir. 2005). A violation of due process occurs when “the
proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his
case.” Id. at 436 (quoting Ladha v. INS, 215 F.3d 889, 904 (9th Cir. 2000)).
III
A. The IJ’s Refusal to Accept “Hardship” Testimony from Jesus Sanchez
The immigration judge refused to hear testimony from Jesus Sanchez, a boy who had lived
with Briceno for much of his life and was “considered” by Briceno to be his son, although he was
not legally recognized as such through blood or adoption. Briceno’s argument is that Jesus, as the
oldest of the three boys in his household, would have been best able to articulate the hardship that
he and his “brothers” would suffer were Briceno removed to Mexico. This is an evidentiary
question, and as such is governed largely by this Court’s precedent in Hassan, where we noted that
the immigration judge “is afforded broad discretion to control the manner of interrogation in order
to ascertain the truth.” Hassan, 403 F.3d at 436 (quoting Mikhailevitch v. INS, 146 F.3d 384, 391
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(6th Cir. 1998)). The immigration judge’s evidentiary discretion cannot be so unbridled, however,
as to upset his role as “neutral fact-finder interested in hearing petitioner’s evidence,” and thus
violate a petitioner’s due process rights. Id.
INA § 240A(b), which supplies the statutory language for cancellation of removal, states in
relevant part:
The Attorney General may cancel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an alien who is inadmissible or
deportable from the United States if the alien--
(A) has been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the date of
such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2),
1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes 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 or an alien lawfully admitted for
permanent residence.
INA § 240A(b)(1) (emphasis added). The immigration judge found that Briceno met parts (A) and
(C) of the statute, but not parts (B) and (D). Part (D), which contains the requirement of “extremely
unusual hardship,” was considered by the Board to be determinative, and thus the procedures
followed by the immigration judge in assessing part (D) are the focus of Briceno’s appeal. The
extremely-unusual-hardship requirement applies by its own terms only to a “child” of the alien who
is also a citizen of the United States or lawful permanent resident. Because the term “child” is not
self-defining, one must then turn to its statutory definition within the INA. See INA § 101(b)(1), 8
U.S.C. § 1101(b)(1). This definition does not include a non-biological, non-adopted boy such as
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Jesus, and Briceno concedes as much. The question was addressed by the Supreme Court in INS v.
Hector, 479 U.S. 88 (1986), a case dealing with “suspension of deportation,” the precursor to the
INA’s current “cancellation of removal” nomenclature. In Hector, the Court held that “even if
[petitioner’s] relationship with her nieces closely resembles a parent-child relationship, we are
constrained to hold that Congress, through the plain language of the statute, precluded this functional
approach to defining the term ‘child.’” Id. at 382; see also Fiallo v. Bell, 430 U.S. 787, 798 (1977)
(noting that “it could be argued that the line should have been drawn at a different point and that the
statutory definitions deny preferential status to [some] who share strong family ties,” but “these are
policy questions entrusted exclusively to the political branches of our Government, and we have no
judicial authority to substitute our political judgment for that of the Congress”).
In his brief, Briceno attempts to undercut Hector by construing the Board’s ruling in Matter
of Recinas, 23 I. & N. Dec. 467 (BIA 2002), to stand for the proposition that an immigration judge
must evaluate the effect of removal on the “family unit” as a whole. Petitioner’s Br. at 21. In
Recinas, the Board granted a woman’s application for cancellation of removal on grounds that she
was the single mother of six children — four of whom were U.S. citizens — and, unlike Briceno,
had no family to return to in Mexico. 23 I.. & N. at 471. Briceno argues that once the Board
promulgated its rule in Recinas “that evidence concerning how hardship within the family unit as
a whole will affect the qualifying relatives must be considered, the BIA and the immigration courts
became compelled to accept it when proffered.” Petitioner’s Br. at 23 (emphasis added). This would
be a viable argument but for the fact that no such rule is to be found in Recinas. Nowhere in Recinas
is the term “family unit” used. Where the term “family” is used, it is typically meant to refer to those
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family members that the immigration judge (and the Board) may consider in determining hardship,
specifically, the alien’s “spouse,” “parents,” and “children” as defined under the INA, assuming they
are United States citizens or lawful permanent residents. All ancillary hardship inquiries flow from
this initial determination. See, e.g., 23 I. & N. at 472 (“In considering the hardship that the United
States citizen children would face in Mexico, we must also consider the totality of the burden on the
entire family that would result when a single mother must support a family of this size.”) (emphasis
added).
To be sure, the INA’s definition of “child” may be far out of step with the times, and may
have a particularly deleterious effect on aliens whose culture’s definition of “family” is legitimately
broader than the traditional definition of those related by blood or adoption. This does not mean,
however, that the immigration judge in the instant case violated Briceno’s due process rights. The
judge could have allowed Jesus to testify, but following Hector, he chose not to, and this was well
within his discretion for a cancellation of removal proceeding. The judge did, after all, hear
extensive hardship testimony from Briceno’s biological son Nestor. Furthermore, in light of
Nestor’s testimony, as well as that of Briceno himself, it was reasonable for the immigration judge
to conclude that he had enough information to make a hardship determination without hearing from
Jesus. Jesus’s hardship testimony would have been cumulative, and thus its exclusion would likely
not have presented a due process problem even had the immigration judge been required to admit
it under Hector.
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It cannot be said that Briceno’s proceeding was “so fundamentally unfair that [he] was
prevented from reasonably presenting his case.” Hassan, 403 F.3d at 436. Briceno’s due process
claim as to Jesus’s excluded testimony thus fails.
B. The BIA’s Refusal to Remand to the IJ in Light of New Psychological Evidence
Briceno was entitled to present psychological evidence at his removal hearing to further his
case for exceptional and extremely unusual hardship under INA § 240A(b)(1)(D). See 8 C.F.R. §
1240.58(b)(9). As such, the fault does not lie with the Board for not considering this evidence on
appeal. Rather, in light of the new psychological evidence, Briceno could have submitted a motion
to reopen under 8 C.F.R. § 1003.2(c). This motion would likely have been denied, however, because
the Board is prohibited from granting a motion to reopen “unless it appears to the Board that
evidence sought to be offered is material and was not available and could not have been discovered
or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). There is nothing in the record to
indicate that Briceno could not, with or without the assistance of counsel, have obtained the
psychologist’s report in time for the cancellation-of-removal hearing. Briceno is therefore barred
from relying on what he alleges to be the Board’s failure to consider the report. See also INS v.
Abudu, 485 U.S. 94, 108 (1988) (“If INS discretion is to mean anything, it must be that the INS has
some latitude in deciding when to reopen a case. The INS should have the right to be restrictive.
Granting [motions to reopen] too freely will permit endless delay of deportation by aliens creative
and fertile enough to continuously produce new and material facts sufficient to establish a prima
facie case.”). At best, Briceno might be able to assert that his counsel was ineffective for not having
the psychological report prepared in time for the hearing. But this has no bearing on Briceno’s due
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process claim with respect to the Board of Immigration Appeals. The due process claim simply has
no merit.
III
For the foregoing reasons, Briceno’s due process arguments must fail, and we therefore
AFFIRM the decision of the Board of Immigration Appeals.