Garcia-Melendez v. Ashcroft

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

8
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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