                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2005

Flores-Tola v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2968




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-2968


                        ARTURO PATRICIO FLORES-TOLA,
                                           Petitioner

                                           v.

            ALBERTO GONZALES,* Attorney General of the United States;
                       USCIS DISTRICT DIRECTOR,
                                           Respondents


                   PETITION FOR REVIEW OF A DECISION OF
                    THE BOARD OF IMMIGRATION APPEALS
                            Agency No. A79-701-683


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 13, 2005


               Before: SLOVITER, BARRY, and SMITH, Circuit Judges


                          (Opinion Filed: September 20, 2005)


                                       OPINION




   *
   Attorney General Alberto Gonzales has been substituted for former Attorney General
John Ashcroft, the original respondent in this case, pursuant to Fed. R. App. P. 43(c).
BARRY, Circuit Judge

       Arturo Flores-Tola was denied cancellation of removal on the ground that he could

not demonstrate that his deportation would result in “exceptional and extremely unusual

hardship” to his two children who are United States citizens. Because we do not have

jurisdiction to review that determination, and because Flores-Tola’s other contentions are

unpersuasive, we will deny the petition for review.

                                      I. Background

       Flores-Tola is a native and citizen of Ecuador. He arrived in the United States on

December 24, 1988, and entered without inspection.1 Since that time, he has worked as a

jeweler, consistently filed federal tax returns, and has a clean record. He is the father of

four, including two young children who were born in New Jersey, and although he is not

married, he has continued his relationship with the mother of his two citizen-children.

       On August 7, 2002, the former Immigration and Naturalization Service (“INS”)2

served Flores-Tola with a Notice to Appear, charging him with removability as an

inadmissible alien present in the United States without being admitted or paroled. See 8

U.S.C. § 1182(a)(6)(A)(i). Flores-Tola conceded removability, but filed an Application

for Cancellation of Removal on December 12, 2002.


   1
    The precise date on which Flores-Tola entered this country is unclear. He listed
December 24, 1988 as the date of entry on his Application for Cancellation of Removal,
see A218, and we will use that date here.
   2
   As of March 1, 2003, the INS ceased to exist, and its functions were transferred to the
Department of Homeland Security. See 6 U.S.C. § 271 (2002).

                                              2
       On April 4, 2003, Flores-Tola testified at a hearing before an Immigration Judge

(“IJ”), as did five witnesses on his behalf, including his eldest citizen-child. At the close

of testimony, the IJ ruled that, while Flores-Tola had met the other provisions of the

relevant statute, he had not made the requisite showing that his deportation would cause

exceptional hardship to his citizen-children. The IJ, therefore, ordered him deported to

Ecuador.

       Flores-Tola appealed to the Board of Immigration Appeals (“BIA”), which

affirmed without opinion on June 14, 2004. This timely petition for review followed. In

the petition, Flores-Tola argues that (1) he has made a showing of exceptional hardship;

(2) his due process rights were violated because the IJ denied him a full and fair hearing;

and (3) the BIA abused its discretion by issuing an affirmance without opinion.

                                     II. Legal Analysis

       We have jurisdiction to determine whether we have jurisdiction under 8 U.S.C. §

1252. See Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001). In undertaking that

analysis, we can quickly dispose of Flores-Tola’s first argument. Under 8 U.S.C. §

1229b(b), the Attorney General may cancel the removal of a nonpermanent resident alien

if the alien meets four criteria, the last of which is proof of exceptional hardship to a

citizen spouse, parent, or child if the alien is deported. The Attorney General’s decision

to do so is committed to his discretion, however, and we do not have jurisdiction to

review a denial of such relief. See 8 U.S.C. § 1252(a)(2)(B)(i). We cannot, therefore,



                                              3
consider Flores-Tola’s contention that the IJ did not conduct “an examination of all the

hardship factors.” Pet. Br. at 10.

       Nevertheless, we have jurisdiction to review “constitutional claims or questions of

law.” 8 U.S.C. § 1252(a)(2)(D). Flores-Tola argues that his due process rights were

violated because he was allegedly denied a full and fair hearing by the IJ. He claims that

the IJ “was prepared to render his decision prior to receiving all witness testimony,” and

was thus predisposed to rule against his application. See Pet. Br. at 14.

       It is undisputed that the Fifth Amendment’s due process protections apply to aliens

in removal proceedings. See, e.g., Reno v. Flores, 507 U.S. 292, 306 (1993), Sewak v.

INS, 900 F.2d 667, 671 (3d Cir. 1990). “The fundamental requirement of due process is

the opportunity to be heard at a meaningful time and in a meaningful manner.” Abdulai

v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal citation omitted). Flores-Tola

contends that the IJ’s purported predisposition abrogated that right.

       The record belies this contention. Flores-Tola’s counsel informed the IJ that four

of the five witnesses would testify to Flores-Tola’s good moral character, and the IJ

responded that there did not seem to be any dispute that Flores-Tola had satisfied that

requirement. See A68-69. The IJ then said, however, “I don’t want to be in the position

where I’m saying you can’t have somebody in here to testify, . . . [s]o that’s why I’m

leaving it up to you.” A69. Flores-Tola’s counsel proceeded to call all four character

witnesses, and also called Flores-Tola’s citizen-son. All five testified without



                                             4
unnecessary interruption or constraint. As such, there is nothing in the record that shows

that the IJ’s conduct of the hearing was anything but fair and open, or that Flores-Tola did

not receive the process he was due.

       Flores-Tola’s final argument is that the BIA inappropriately affirmed the IJ’s

decision without opinion, claiming that it is “unclear if all the evidence submitted was

considered by the agency.” Pet. Br. at 18. We have explicitly endorsed the streamlining

regulations that allow the BIA to issue opinions in this form. See Dia v. Ashcroft, 353

F.3d 228, 245 (3d Cir. 2003) (en banc). And we have long held that the alien has the

burden of proving that the BIA did not review the record when considering his or her

appeal. See McLeod v. INS, 802 F.2d 89, 95 n.8 (3d Cir. 1986). Flores-Tola has not

satisfied his burden of proof; indeed, he simply states that the BIA did not review the

record in his case, and offers nothing in support of that bald assertion.

                                      III. Conclusion

       For the foregoing reasons, the petition for review will be denied.




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