United States Court of Appeals
For the Eighth Circuit
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No. 20-2624
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Elzar Rene Orpinel-Robledo, also known as Elzar Rene Opinel
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of the United States1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: April 13, 2021
Filed: July 19, 2021
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Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.
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WOLLMAN, Circuit Judge.
Elzar Rene Orpinel-Robledo petitions for review of the Board of Immigration
Appeals’ (BIA) denial of his application for cancellation of removal. We deny the
petition.
1
Attorney General Garland is substituted as respondent under Federal Rule of
Appellate Procedure 43(c)(2).
Orpinel-Robledo, a native and citizen of Mexico, entered the United States
without inspection in either 1995 or 1996. The Department of Homeland Security
initiated removal proceedings against him in 2011. Orpinel-Robledo admitted to
being in the United States illegally, but requested cancellation of removal under
8 U.S.C. § 1229b(b)(1), which allows for cancellation of removal if “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.” Orpinel-Robledo claimed that his three children, all of whom
are United States citizens, would suffer “exceptional and extremely unusual hardship”
if he were removed.
Immigration Judge Megan Foote Monsky conducted Orpinel-Robledo’s
removal hearing. Judge Monsky was unavailable to complete the decision, however,
and the case was re-assigned to Immigration Judge Nancy J. Paul pursuant to
8 C.F.R. § 1240.1(b) (2020). Judge Paul familiarized herself with the complete
record of Orpinel-Robledo’s proceedings and found the testimony of
Orpinel-Robledo and his two witnesses to be credible. The chief hardships identified
by Orpinel-Robledo were separation from his daughters, the likelihood that his oldest
daughter would spend less time with his family in the United States, and the
uncertainty of his finding work in Mexico. After reviewing the record, Judge Paul
found that all of Orpinel-Robledo’s children were healthy and that his school-aged
children were “doing well in school.” She determined that his children lived with
their respective mothers and step-fathers, who “ensure that they are loved and cared
for.” Finding that Orpinel-Robledo was “healthy and capable of finding work in
Mexico” with local family members’ assistance, Judge Paul determined that
Orpinel-Robledo’s removal would not place “exceptional and extremely unusual
hardship” on his children and accordingly denied his application.
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Orpinel-Robledo appealed Judge Paul’s order to the BIA, arguing that the
substitution of immigration judges constituted a violation of his due process rights.
The BIA affirmed Judge Paul’s decision, concluding that substitution was proper and
that Orpinel-Robledo had not shown that he had suffered any prejudice from the
substitution. Orpinel-Robledo now asserts that the substitution of immigration judges
violated both the text of the statute and his due process rights.
Orpinel-Robledo argues that the statute’s use of “the” before “immigration
judge” requires the same immigration judge to conduct both the merits hearing and
the decisional process. The statute begins, “An immigration judge shall conduct
proceedings for deciding the inadmissibility or deportability of an alien.”
8 U.S.C. § 1229a(a)(1). The statute then provides, “At the conclusion of the
proceeding the immigration judge shall decide whether an alien is removable from
the United States. The determination of the immigration judge shall be based only
on the evidence produced at the hearing.” Id. § 1229a(c)(1)(A). Read in context, the
phrase “the immigration judge” thus refers back to “an immigration judge.”
Accordingly, the phrase “the immigration judge” used in subsequent clauses simply
refers to whichever immigration judge is conducting that part of the removal
proceedings; the phrase does not require that the first immigration judge oversee the
case from initiation to completion. See Nielsen v. Preap, 139 S. Ct. 954, 965 (2019)
(“Here grammar and usage establish that ‘the’ is a function word indicating that a
following noun or noun equivalent is definite or has been previously specified by
context.” (cleaned up)).2 Indeed, we have previously upheld the similar substitution
of immigration judges. See, e.g., Caballero-Martinez v. Barr, 920 F.3d 543, 546 (8th
Cir. 2019). The substitution here was equally permissible.
2
We conclude that the Supreme Court’s decision in Niz-Chavez v. Garland, 141
S. Ct. 1474 (2021), which addressed the use of the indefinite article “a” in the context
of a notice to appear, has no direct bearing on the issue involved in this case. See id.
at 1480–85.
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Moreover, Judge Paul fully complied with the governing regulations, which
required her to “familiarize . . . herself with the record in the case and . . . state for the
record that . . . she has done so,” 8 C.F.R. § 1240.1(b) (2020). Like the substitute
immigration judge in Caballero-Martinez, Judge Paul found the petitioner and his
witnesses to be credible, despite ultimately finding his hardship evidence insufficient.
See 920 F.3d at 547 (“[U]ltimately, the [substitute immigration judge] denied relief
not because [the petitioner] was insincere in alleging hardship, but because his
hardship evidence was insufficient.”).
We also reject Orpinel-Robledo’s argument that the substitution of immigration
judges violated his due process rights. To establish a due process violation, “a party
must demonstrate a protected liberty or property interest[,]” which primarily requires
showing “an expectation of receiving some measure of relief.” Nunez-Portillo v.
Holder, 763 F.3d 974, 977 (8th Cir. 2014) (citations omitted). The executive branch
has “unfettered discretion” over removal cancellations, however, and “an alien
[therefore] can have no constitutionally protected liberty interest in such speculative
relief and cannot state a claim for a violation of due process rights.” Id. (citation
omitted).
We therefore deny Orpinel-Robledo’s petition for review.
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