United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit November 18, 2003
Charles R. Fulbruge III
Clerk
No. 02-60382
JUAN GARCIA-MELENDEZ, Petitioner,
VERSUS
JOHN ASHCROFT, U S Attorney General, Respondent.
Petition For Review of an Order
of the Board of Immigration Appeals
Before EMILIO M. GARZA and DENNIS, Circuit Judges, and VANCE,*
District Judge.
VANCE, District Judge:
Appellant Juan Garcia-Melendez seeks judicial review of the
Board of Immigration Appeals’ order affirming the Immigration
Judge’s decision denying Garcia’s application for cancellation of
removal. Further, Garcia challenges the BIA’s use, in his case,
of a single-member appeal panel and summary affirmance procedure.
We deny appellant’s petition.
____________________
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
I. FACTUAL AND PROCEDURAL BACKGROUND
Garcia-Melendez is a native and citizen of Mexico who, by
his own admission, was present in the United States without
having been admitted or paroled by an immigration officer. On
August 26, 1999, the Immigration and Naturalization Service began
removal proceedings against Garcia under section 212(a)(6)(A)(i)
of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(6)(A)(i). Garcia applied for cancellation of removal
under section 240A(b) of the INA, 8 U.S.C. § 1229b(b).
Under section 240A(b), an Immigration Judge ("IJ") may
cancel removal if an alien: (1) has been physically present in
the United States continuously for at least 10 years immediately
before the date he applied for cancellation of removal; (2) has
been of good moral character during this period; (3) has not been
convicted of enumerated criminal offenses; and (4) establishes
that removal would result in exceptional and extremely unusual
hardship to the alien’s spouse, parent, or child who is a U.S.
citizen or a legal permanent resident. 8 U.S.C. § 1229b(b)(1).
At his removal proceeding before the IJ, Garcia put on evidence
about his presence in the United States as a laborer from 1979
onward and about hardship to his U.S.-citizen children. The IJ
rendered an oral decision in which he ordered Garcia removed from
the United States to Mexico and denied his application for
cancellation of removal and voluntary departure. The IJ found
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that Garcia failed to sustain his burden of proof on two of the
four requirements for cancellation of removal set forth in
section 240A(b) of the INA. Specifically, the IJ found that
Garcia failed to satisfy the requirement of ten years of
continuous physical presence in the United States, first because
he presented insufficient evidence on the issue, and second,
because he voluntarily departed the United States for Mexico
twice after being apprehended by the INS, which the IJ held to
constitute breaks in his continuous physical presence as a matter
of law. In addition, the IJ found that Garcia failed to prove
that his children would suffer exceptional and extremely unusual
hardship if he were removed.
Garcia appealed the IJ’s decision to the BIA. The BIA
summarily affirmed the IJ’s decision without opinion, pursuant to
8 C.F.R. § 1003.1(a)(7). Garcia timely appealed, invoking our
jurisdiction to review a final order of removal under section
242(a)(1) of the INA, 8 U.S.C. § 1252(a)(1).
II. JURISDICTION
The relief that Garcia sought is cancellation of removal
under section 240A(b) of the INA.1 Under 8 C.F.R. §
1
Cancellation of removal is a form of discretionary relief
passed as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), enacted on September 30,
1996. See Pub. L. No. 104-208 (Division C), 110 Stat. 3009-546.
In IIRIRA section 304, Congress eliminated INA section 212(c)
relief as well as suspension of deportation, and replaced them
with two forms of cancellation of removal, one for aliens who are
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1003.1(a)(7)(iii), the underlying decision of the IJ, not the
BIA’s summary affirmance, is the proper subject of judicial
review. See Soadjede v. INS, 324 F.3d 830, 831-32 (5th Cir.
2003) (citing 64 Fed. Reg. 56,135, 56,137 (Oct. 18, 1999)); see
also Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997) (noting
that when the BIA affirms without explanation, the court reviews
the IJ’s decision). Therefore, we must determine whether we have
jurisdiction to review the IJ’s decision to deny cancellation of
removal. We review our subject matter jurisdiction de novo. See
Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000), cert.
denied, 531 U.S. 1069 (2001).
As noted earlier, the Attorney General has discretion to
cancel the removal of a non-permanent resident if the alien has
shown (1) a continuous physical presence of not less than 10
years; (2) good moral character; (3) a lack of certain criminal
convictions; and (4) exceptional and extremely unusual hardship
to a qualifying relative. INA § 240A(b); 8 U.S.C. § 1229b(b).
Judicial review of his decision is governed by section 242(a)(1)
of the INA, which provides generally for "judicial review of a
final order of removal." 8 U.S.C. § 1252(a)(1). Section
legal permanent residents, and one for those who are not. The
statutory requirements for cancellation of removal for a non-
permanent resident such as Garcia are codified at section 240A(b)
of the INA, 8 U.S.C. § 1229b(b). Because Garcia’s removal
proceedings began after April 1, 1997, the effective date of the
IIRIRA, this case is governed by the permanent provisions of the
INA, as amended by IIRIRA.
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242(a)(2)(B) of the INA, however, limits judicial review of
certain discretionary decisions made in immigration proceedings.
8 U.S.C. § 1252(a)(2)(B). This section, entitled "Denials of
discretionary relief," deprives the courts of jurisdiction over
certain matters:
[N]o court shall have jurisdiction to review (i) any
judgment regarding the granting of relief under section
. . . 1229b . . . of this title, or (ii) any other
decision or action of the Attorney General the authority
for which is specified under this subchapter to be in the
discretion of the Attorney General, other than the
granting of relief under section 1158(a) of this title.
8 U.S.C. § 1252(a)(2)(B) (2001).
Because this case involves “the granting of relief under
section . . . 1229b,” the jurisdictional bar of § 242(a)(2)(B) is
implicated here. See Gonzalez-Oropeza v. U.S. Attorney General,
321 F.3d 1331, 1322 (11th Cir. 2003). We must determine the
extent of this jurisdictional bar. This Circuit has held that
the determination of whether a petitioner has been continually
present for a period of not less than ten years is a factual
determination, which is subject to appellate review. See
Gonzales-Torres v. INS, 213 F.3d 899, 901 (5th Cir. 2000).
III. CONTINUOUS PRESENCE FOR TEN YEARS
We review the IJ's factual conclusions on the issue of
whether Garcia established ten years of continuous presence for
substantial evidence. Efe v. Ashcroft, 293 F.3d 899, 903 (5th
Cir. 2002) (citing Odzemir v. INS, 46 F.3d 6, 7 (5th Cir. 2002)).
Questions of law are reviewed de novo. Id. This Court must
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affirm the IJ's decision if there is no error of law and if
reasonable, substantial, probative evidence on the record,
considered as a whole, supports his factual findings. Moin v.
Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003) (citing Howard v.
INS, 930 F.2d 432, 434 (5th Cir. 1991)). This Court will not
reverse the decision of the IJ unless the petitioner "provides
evidence 'so compelling that no reasonable fact-finder could
conclude against it.'" Id. (citing Carbajal-Gonzalez v. INS, 78
F.3d 194, 197 (5th Cir. 1996)).
We find that substantial and probative evidence, considered
as a whole, supports the IJ's factual finding that Garcia did not
establish ten years of continuous presence in the United States
between 1989 and 1999. Garcia established that he moved with his
wife and two Mexican-born children into an apartment in San
Benito, Texas in 1993 where he has since lived. The evidence
that Garcia submitted to prove continuous physical presence in
the United States from 1989 until 1993, however, left gaps in
proof, or it was inconsistent. Garcia relied on an affidavit
from Alberto Garza, stating that he met Garcia in 1980 because
Garcia was harvesting crops "in our vicinity at that time," but,
as the IJ noted, there was no evidence that Garza knew that
Garcia was present in the United States continuously for any
period of years, let alone after 1989. Garcia also presented an
unsworn letter from Aurelio Davila, which indicated only that
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Garcia rented a house in Texas in 1982. Reverend Juan Perez
stated that he met Garcia in 1988 and that Garcia has resided in
the United States since then, only to be contradicted by Garcia
himself who said that he met the reverend for the first time in
1992. Garcia's wife, whom he married in 1983, lived in Mexico
until 1992, and the Garcias had two children who lived in Mexico
until 1992. Further, Garcia presented no documents to show that
he had been in the United States before 1990. Nor did he present
a convincing explanation as to why he was unable to obtain any
definitive supporting documentation from his former employers.
Besides these shortcomings in Garcia's proof, the IJ heard
Garcia's testimony about his presence in the United States and
found that it was not credible. The IJ found his testimony
particularly suspect since Garcia admitted that his wife and
children remained in Mexico until 1992 and that he saw them there
regularly.
Based on these facts, we hold that there was substantial
evidence for the IJ to find that Garcia failed to prove
continuous physical presence for ten years before the INS brought
removal proceedings against him. A court of appeals gives "great
deference to an immigration judge's decisions concerning an
alien's credibility." Efe v. Ashcroft, 293 F.3d 899, 903 (5th
Cir. 2002) (citing Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)).
We will not substitute our judgment "for that of the BIA or IJ
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with respect to the credibility of the witnesses or ultimate
factual findings based on credibility determinations." Chun, 40
F.3d at 78. We have emphatically ruled that "[w]e will not
review decisions turning purely on the immigration judge's
assessment of the alien petitioner's credibility." Id. (citing
Mantell v. INS, 798 F.2d 124, 127 (5th Cir. 1986)). Our holding
that the IJ had substantial evidence to conclude that Garcia
failed to meet one of the four threshold eligibility factors
under § 240A(b) is a sufficient basis alone for us to affirm his
denial of relief. For this reason, we need not address the other
grounds upon which Garcia challenges the IJ's decision.
IV. THE DECISION OF THE BIA
Garcia also challenges the BIA’s use of its streamlining
procedure, in which a single member reviewed the IJ's decision
and affirmed it without opinion. See 8 C.F.R. § 1003.1(a)(7).
Under § 1003.1(a)(7)(ii), a single member of the BIA may affirm
the IJ’s decision without opinion if
the result reached in the decision under review was
correct;
any errors in the decision under review were harmless or
nonmaterial; and
(A) the issue on appeal is squarely controlled by
existing Board or federal precedent and does not involve
the application of precedent to a novel factual
situation; or (B) the factual and legal questions raised
on appeal are so insubstantial that three-Member review
is not warranted.
8 C.F.R. § 1003.1(a)(7)(ii).
Garcia argues that we must review the BIA's use of the
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streamlined review process because his case does not meet any of
the regulatory criteria governing this type of review. We reject
this argument. Garcia does not raise a constitutional challenge
to the BIA procedure.2 In any event, we have already held that
the streamlining process is constitutional. See Soadjede v.
Ashcroft, 324 F.3d 830 (5th Cir. 2003) (holding that BIA
streamlining procedure does not deprive courts of judicial review
and does not violate alien’s due process rights). Further, when
the BIA uses the streamlining process, the underlying decision of
the IJ is the decision that this Court reviews. See id. at 831-
32. We have reviewed the IJ's decision on a dispositive issue
and have found no error in his ruling that Garcia failed to
establish ten years of continuous presence. Petitioner is
entitled to no further judicial review.
2
Amicus curiae American Immigration Law Foundation ("AILF")
argues that the BIA streamlining procedure violates principles of
constitutional and administrative law. Appellant does not raise
these issues himself, but only focuses on the propriety of
applying the streamlining procedure in his case. It is well-
settled in this circuit that "an amicus curiae generally cannot
expand the scope of an appeal to implicate issues that have not
been presented by the parties to the appeal." Resident Council
of Allen Parkway Village v. U.S. Dep’t of Housing & Urban Dev.,
980 F.2d 1043, 1049 (5th Cir. 1993) (citing Christopher M. v.
Corpus Christi Indep. Sch. Dist., 933 F.2d 1285, 1292 (5th Cir.
1991)); see also Knetsch v. United States, 364 U.S. 361, 370
(1960). Under this principle, we have held that a constitutional
issue raised only by amici need not be considered. See United
States v. Singleton, 16 F.3d 1419, 1429 n.48 (5th Cir. 1994).
Thus, we decline to consider the arguments raised by AILF. In
any event, AILF’s arguments are foreclosed by our recent decision
in Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003).
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V. CONCLUSION
Appellant Juan Garcia-Melendez’s petition for judicial
review of the BIA’s order affirming the IJ’s decision to deny
Garcia’s application for cancellation of removal is DENIED.
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