de la Cruz Orellana v. Sessions

United States Court of Appeals
For the First Circuit

No. 16-2106

MELVI AYDE DE LA CRUZ-ORELLANA; ALFREDO FLORES,

Petitioners,

JEFFERSON B. SESSIONS, III,
United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Selya, and Lipez,
Circuit Judges.

Stephen M. Born on brief for petitioners.
Carmel A. Morgan, Trial Attorney, Office of Immigration
Litigation, Chad A. Readler, Principal Deputy Assistant Attorney
General, and Shelley R. Goad, Assistant Director, Office of
Immigration Litigation, on brief for respondent.

December 18, 2017
LIPEZ, Circuit Judge. Petitioners Melvi Ayde de la Cruz-

Orellana and Alfredo Flores are a wife and husband who seek review

of a decision denying their applications for voluntary departure

to Guatemala and Mexico, respectively. An Immigration Judge ("IJ")

denied petitioners' applications on discretionary grounds, and the

Board of Immigration Appeals ("BIA") affirmed the IJ's decision.

Petitioners timely sought review in this court. We now dismiss

for want of jurisdiction.

Alfredo Flores entered the United States without proper

entry documentation in 1986, and Melvi Ayde de la Cruz-Orellana

did the same three years later.1 The two met in California, and

they were married in approximately 1994. At the time of these

immigration proceedings, they resided in Providence, Rhode Island,

with their son, Jonathan Flores.

Appearing at a removal hearing in March 2009, the couple

submitted written petitions to the IJ requesting cancellation of

their removal and, alternatively, voluntary departure.2 To be

statutorily eligible for cancellation of removal, petitioners had

1 The record reflects some uncertainty over whether Cruz-
Orellana entered the United States in 1989 or 1992. As her date
of entry is immaterial to our decision, we will accept arguendo
Cruz-Orellana's representation that she entered the United States
in 1989.
2 The written petitions originally requested several other

forms of relief that petitioners dropped before the IJ issued his
decision.

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to show (amongst other factors) that they had been "person[s] of

good moral character" for at least ten years, and that their

removal "would result in exceptional and extremely unusual

hardship" to their United States-citizen child. 8 U.S.C.

§ 1229b(b)(1). They similarly had to show -- again, amongst other

factors -- that they had been persons of good moral character for

at least five years to be statutorily eligible for voluntary

departure. 8 U.S.C. § 1229c(b)(1). Statutory eligibility,

however, does not guarantee success. The IJ could deny

petitioners' requests for cancellation of removal and voluntary

departure as a matter of discretion. See 8 U.S.C. §§ 1229b(b)(1),

1229c(b)(1) (stating that the Attorney General "may" cancel an

immigrant's removal and "may" permit him to depart voluntarily).

In an oral decision in November 2014, the IJ rejected

petitioners' requests for both forms of relief. First, he found

that Cruz-Orellana had "given false testimony for the purpose of

obtaining" immigration benefits, and was therefore not a person of

good moral character for cancellation of removal purposes. 8

U.S.C. § 1101(f)(6). Specifically, Cruz-Orellana completed an

application for asylum in 1993, representing that she had been

tortured by guerrillas in Guatemala, and was married to a guerrilla

commandant known as El Gallo Giro. She reaffirmed the accuracy of

her application when she appeared before an asylum officer in

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August 2007. However, in a hearing before the IJ, Cruz-Orellana

admitted that the information in her asylum application was false.

In denying cancellation of removal to Cruz-Orellana, the

IJ found that she could not benefit from the "recantation

doctrine." That doctrine provides that false testimony will not

prevent an immigrant from establishing her good moral character

when she timely recants the false testimony.3 See Matter of Namio,

14 I. & N. Dec. 412, 414 (BIA 1973); Matter of M-, 9 I. & N. Dec.

118, 119 (BIA 1960). According to the IJ, Cruz-Orellana did not

recant her false testimony in a "timely" manner. The IJ then

offered another reason to reject Cruz-Orellana's request for

cancellation of removal, which also applied to Flores's request

for the same. The couple could not show that their son would incur

"exceptional and extremely unusual hardship" upon their removal,

a prerequisite to obtaining relief. 8 U.S.C. § 1229b(b)(1)(D).

Turning to Cruz-Orellana's request for voluntary

departure, the IJ began by incorporating his prior discussion

"regarding her false oral testimony before the Asylum Officer."

He considered the false testimony "a significant factor that

3There is some disagreement in the case law over what
constitutes a "timely" recantation. Some courts have focused on
the voluntariness of the recantation, while others assess
timeliness based on the duration between the false testimony and
the recantation. See, e.g., Ruiz-Del-Cid v. Holder, 765 F.3d 635,
640-41 (6th Cir. 2014). As we lack jurisdiction to review the
IJ's discretionary decision to deny Cruz-Orellana voluntary
departure, we have no occasion to weigh in on the matter.

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reflects upon her bad character." The IJ then weighed Cruz-

Orellana's false testimony against certain positive factors and

declined to grant her voluntary departure as a matter of

discretion.4 Lastly, the IJ also denied voluntary departure to

Flores as a matter of discretion. In doing so, the IJ relied in

part upon a police report from a 2000 domestic violence incident

involving Flores and Cruz-Orellana.

Petitioners appealed the IJ's decision to the BIA. The

BIA first noted that petitioners' son, Jonathan, had turned 21

during the pendency of their appeal, leaving them unable to show

that their removal would result in exceptional and extremely

unusual hardship to their "child." 8 U.S.C. § 1101(b)(1) (defining

"child" as, in relevant part, "an unmarried person under twenty-

one years of age"). It then upheld the IJ's discretionary

decisions to deny petitioners' requests for voluntary departure.

In their petition for review to this court, petitioners

concede that their son's age makes them ineligible for cancellation

4The IJ did not expressly address whether Cruz-Orellana was
statutorily eligible for voluntary departure, though we could
infer a finding of statutory ineligibility based on his
determination that Cruz-Orellana was not a person of good moral
character for cancellation of removal purposes. See 8 U.S.C.
§§ 1229b(b)(1)(b), 1229c(b)(1)(b) (establishing "good moral
character" requirements for both forms of relief). In any event,
since the IJ declined to afford Cruz-Orellana voluntary departure
as a matter of discretion, his finding regarding statutory
eligibility is ultimately immaterial. As discussed infra, IJs
have discretion to deny immigrants the privilege of voluntary
departure even when they are statutorily eligible for the benefit.

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of removal. They maintain, however, that the IJ erred in denying

their requests for voluntary departure. Cruz-Orellana argues that

the recantation doctrine should have prevented the IJ from

considering her false testimony in denying her voluntary departure

as a matter of discretion. Flores asserts that the IJ's reliance

on the 2000 domestic violence police report violates due process

because it contains hearsay. We do not reach the merits of these

contentions, however, because we lack jurisdiction to do so.

II.

Our jurisdiction to review decisions denying immigrants

the privilege of voluntary departure is narrowly circumscribed.

See Arias-Minaya v. Holder, 779 F.3d 49, 52 (1st Cir. 2015).

Indeed, we are statutorily prohibited from reviewing the "denial

of a request for an order of voluntary departure," 8 U.S.C.

§ 1229c(f); see also 8 U.S.C. § 1252(a)(2)(B)(i), unless the

petition for review involves "constitutional claims or questions

of law," 8 U.S.C. § 1252(a)(2)(D). A "bare allegation of either

a constitutional shortfall or legal error" is not sufficient.

Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir. 2010). To confer

jurisdiction, "the claim of constitutional or legal error must at

least be colorable." Id.; see also Arias-Minaya, 779 F.3d at 52

("Whether a claim fits within the confines of one of these

exceptions depends on substance, not on form."). This

jurisdictional limitation is fatal to petitioners' claims.

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A. Petitioner Cruz-Orellana

Cruz-Orellana's reliance on the recantation doctrine

misapprehends the relevance of that doctrine to the IJ's

discretionary determination to deny her the benefit of voluntary

departure. Specifically, she fails to appreciate the distinction

between an IJ's finding of statutory ineligibility, and an IJ's

decision to deny relief as a matter of discretion.

An IJ may deny an immigrant's request for voluntary

departure by finding that the immigrant is statutorily ineligible

for that relief. As discussed supra, an immigrant who "has given

false testimony for the purpose of obtaining" immigration benefits

is statutorily ineligible for voluntary departure, unless she had

timely recanted her testimony. See 8 U.S.C. §§ 1101(f)(6),

1229c(b)(1)(B); Matter of Namio, 14 I. & N. Dec. at 413-14. If

the immigrant timely recanted her false testimony, the recantation

doctrine prevents the IJ from finding her statutorily ineligible

based on the testimony.

However, even if the IJ determines that the immigrant is

statutorily eligible for voluntary departure -- or assumes that

she is eligible -- the IJ can weigh the equities and deny relief

as a matter of discretion. See 8 U.S.C. § 1229c(b)(1) (stating

that the Attorney General "may" permit an immigrant to depart

voluntarily); Arias-Minaya, 779 F.3d at 51-52. Indeed, this was

the approach taken by the IJ here. He denied voluntary departure

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to Cruz-Orellana under his discretionary authority, not based on

her statutory ineligibility for the relief.

When an IJ denies voluntary departure as a matter of

discretion, the recantation doctrine does not prevent him from

using an immigrant's timely recanted false testimony as a basis

for denying relief. One of the seminal recantation-doctrine cases

demonstrates this principle precisely. In Matter of M-, the BIA

applied the recantation doctrine and found that the immigrant had

timely recanted his prior false testimony. 9 I. & N. Dec. at 119.

He was, therefore, "not barred . . . from establishing his good

moral character," and was "statutorily eligible for [voluntary

departure]." Id. Nonetheless, the BIA upheld the denial of the

immigrant's "application for voluntary departure . . . as a matter

of administrative discretion." Id. at 120. While the recantation

doctrine made the immigrant statutorily eligible for voluntary

departure, it did not prevent the BIA from subsequently denying

voluntary departure as a matter of discretion.

Thus, even if the application of the recantation

doctrine made Cruz-Orellana statutorily eligible for voluntary

departure, her recantation would become only one factor among many

for the IJ to consider in weighing the equities of her request for

voluntary departure. Since the IJ was not bound by the recantation

doctrine in denying voluntary departure to Cruz-Orellana as a

matter of discretion, the substance of her claim does not involve

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a question of law under 8 U.S.C. § 1252(a)(2)(D). Instead, she

effectively asks us to review the IJ's purely discretionary

decision, made after weighing the equities of the situation, to

deny her voluntary departure regardless of her statutory

eligibility for relief. This is exactly the type of decision that

we lack jurisdiction to review.

B. Petitioner Flores

Flores asserts that the IJ violated his due process

rights by relying on a police report that contained hearsay in

denying him voluntary departure as a matter of discretion.

Flores's invocation of the Due Process Clause does not create a

constitutional claim for the purpose of 8 U.S.C. § 1252(a)(2)(D).

We have held repeatedly that the "privilege" of voluntary departure

involves "no property interest" and "no cognizable liberty

interest" because it is "essentially discretionary." Jupiter v.

Ashcroft, 396 F.3d 487, 492 (1st Cir. 2005); see also Kandamar v.

Gonzales, 464 F.3d 65, 69 (1st Cir. 2006). Since "[a] due process

claim requires that a cognizable liberty or property interest be

at stake," Flores's petition fails to raise a colorable

constitutional claim. Kandamar, 464 F.3d at 69 (quoting DaCosta

v. Gonzales, 449 F.3d 45, 50 (1st Cir. 2006)). We therefore lack

jurisdiction to review the IJ's denial of voluntary departure.

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III.

For the foregoing reasons, we dismiss the petitions for

want of jurisdiction.

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