Reyes Velazquez-Arzate v. Loretta E. Lynch

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0785n.06

No. 15-3045

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 03, 2015
REYES VELAZQUEZ-ARZATE, ) DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
LORETTA E. LYNCH, United States ) APPEALS
Attorney General, )
)
Respondent. )
)

BEFORE: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.

PER CURIAM. Reyes Velazquez-Arzate petitions for review of an order of the Board of

Immigration Appeals (BIA) dismissing his appeal from the denial of his application for

cancellation of removal. We deny the petition for review.

Velazquez-Arzate, a native and citizen of Mexico, most recently entered the United

States in February 1996 without inspection. In June 2009, the Department of Homeland Security

detained Velazquez-Arzate and served him with a notice to appear in removal proceedings,

charging him with removability as an alien present in the United States without being admitted

or paroled and as an immigrant not in possession of a valid entry document. See 8 U.S.C.

§ 1182(a)(6)(A)(i), (a)(7)(A)(i)(I). Velazquez-Arzate appeared before an immigration judge (IJ)

and conceded removability. Velazquez-Arzate subsequently applied for cancellation of removal


The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 15-3045
Velazquez-Arzate v. Lynch

on the basis that his removal would result in exceptional and extremely unusual hardship to his

United States citizen children. See 8 U.S.C. § 1229b(b)(1). After a hearing, the IJ denied

Velazquez-Arzate’s application for cancellation of removal, concluding that he had failed to

demonstrate both good moral character and the requisite hardship to his children. On appeal, the

BIA agreed with the IJ that Velazquez-Arzate had failed to meet his burden of proving eligibility

for cancellation of removal. This timely petition for review followed.

To be eligible for cancellation of removal, Velazquez-Arzate must demonstrate that:

(1) he has been physically present in the United States for a continuous ten-year period; (2) he

“has been a person of good moral character during such period”; (3) he has not been convicted of

certain offenses; and (4) his “removal would result in exceptional and 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). As the respondent’s

motion to dismiss pointed out, this court lacks jurisdiction to review the denial of an application

for cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). We retain jurisdiction, however, to

consider “constitutional claims or questions of law” that have been administratively exhausted.

8 U.S.C. § 1252(a)(2)(D), (d)(1); see also Montanez-Gonzalez v. Holder, 780 F.3d 720, 722 (6th

Cir. 2015).

Velazquez-Arzate first contends that the BIA failed to follow its own precedent requiring

consideration of the hardship factors in the aggregate. According to Velazquez-Arzate, the BIA

failed to consider (1) his older daughter’s anxiety and (2) the violent conditions in Mexico. In

his brief to the BIA, Velazquez-Arzate asserted that the IJ failed to view his older daughter’s

physical ailments in the aggregate; Velazquez-Arzate did not mention his daughter’s anxiety or

conditions in Mexico. Even if Velazquez-Arzate had exhausted this claim before the BIA, we

-2-
No. 15-3045
Velazquez-Arzate v. Lynch

lack jurisdiction to review it. Velazquez-Arzate’s argument that the agency failed to consider

certain facts specific to his case amounts to an objection “to the agency’s weighing of the facts

[that] is not within our jurisdiction to review.” Ettienne v. Holder, 659 F.3d 513, 519 (6th Cir.

2011). In any event, both the IJ and the BIA addressed the daughter’s anxiety, and given that

Velazquez-Arzate’s children would remain in the United States, the conditions in Mexico had

limited, if any, relevance to whether Velazquez-Arzate’s removal would result in exceptional and

extremely unusual hardship to his children.

With respect to the determination that he had failed to demonstrate good moral character,

Velazquez-Arzate asserts that his due-process rights were violated when the IJ did not allow him

to clarify his admission to being aware that there were mistakes on his tax returns at the time that

he filed them. “Although an alien’s due process challenge generally does not require exhaustion

. . . , the alien must raise correctable procedural errors to the BIA.” Sterkaj v. Gonzales,

439 F.3d 273, 279 (6th Cir. 2006). Velazquez-Arzate did not raise this alleged error in his

appeal to the BIA. In any event, the IJ only stopped Velazquez-Arzate’s attorney from asking

the same question again; the IJ did not prohibit the attorney from asking him questions about his

tax filings. Any lack of explanation resulted from Velazquez-Arzate’s decision to remain silent

on the issue when cross-examined before the IJ.

Velazquez-Arzate also argues that the BIA misapplied or ignored its own precedent in

determining that he had failed to demonstrate good moral character due to his admitted

misrepresentations in his tax filings. According to Velazquez-Arzate, pursuant to Matter of

Locicero, 11 I. & N. Dec. 805 (BIA 1966), the agency was required to make findings as to three

elements: (1) he grossly underreported income (2) with the intent to avoid payment (3) of a

substantial sum of taxes. Locicero cannot be read as establishing such a requirement. See

-3-
No. 15-3045
Velazquez-Arzate v. Lynch

Sumbundu v. Holder, 602 F.3d 47, 56 (2d Cir. 2010) (“[T]hough the BIA did find that the

respondent in Locicero misstated a ‘substantial sum,’ nothing in the decision suggests that this

was a requirement for moral character determinations related to inaccurate tax returns.”).

“[T]his court lacks jurisdiction over claims that can be evaluated only by engaging in head-to-

head comparisons between the facts of the petitioner’s case and those of precedential decisions.”

Ettienne, 659 F.3d at 518. Velazquez-Arzate essentially asks us to compare the facts of his case

with those of Locicero.

For the foregoing reasons, we GRANT the respondent’s motion to dismiss in part and

DENY Velazquez-Arzate’s petition for review.

-4-