                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-16-2007

Quispe v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4658




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     NO. 05-4658


                                    JUAN QUISPE,

                                            Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                  Respondent


                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                 BIA No. A77 708 626
                         Immigration Judge: Eugene Pugliese




                      Submitted Under Third Circuit LAR 34.1(a)
                                 on January 9, 2007

                  Before: SLOVITER and RENDELL, Circuit Judges,
                             and RUFE,* District Judge.

                               (Filed February 16, 2007)

__________________

* Honorable Cynthia M. Rufe, Judge of the United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
                               OPINION OF THE COURT




RENDELL, Circuit Judge.

       Juan Quispe petitions for review of the September 19, 2005, final order of removal

by the Board of Immigration Appeals (“BIA”). The order adopted and affirmed the

denial by the immigration judge (“IJ”) of Quispe’s request for cancellation of removal.

The IJ concluded that Quispe failed to show that his children (who are citizens of the

United States) would suffer exceptional and unusual hardship if Quispe were removed

from the United States. In his petition for review, Quispe argues that he should be

deemed to have met his burden of showing unusual and exceptional hardship in light of

United States treaty obligations and principles of customary international law. For the

reasons set forth below, we will deny the petition for review.

       FACTUAL AND PROCEDURAL HISTORY

       The facts of this case are not in dispute. Quispe entered the United States illegally

in 1989. He is the father of two children with Lusmilla Quispe who were born in the

United States in 1994 and 1997. Quispe and Lusmilla eventually separated and in 1997

Quispe married another woman whom he divorced in 2002. The children have always

lived with Lusmilla. In 2003, the Department of Homeland Security initiated removal

proceedings against Quispe.



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       Quispe applied for relief in the form of cancellation of removal, which the

Attorney General may grant to certain persons meeting the criteria listed by

8 U.S.C. § 1229b(b). Specifically, the cancellation is available if the person “has been

physically present in the United States for a continuous period of not less than 10 years

immediately preceding the date of such application,” § 1229b(b)(A); “has been a person

of good moral character during such period,” § 1229b(b)(B); has not been convicted of

certain crimes (none of which is applicable here), § 1229b(b)(C); and “establishes that

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,” § 1229b(b)(D).

       The IJ found that even assuming the criteria of physical presence, good moral

character, and the absence of relevant convictions, Quispe had not established that his

removal would result in exceptional and extremely unusual hardship to his citizen

children.

       Quispe testified that he sees his children every weekend; that he provides for their

school supplies and clothes; that he provides $500-$600 a month in financial support; and

that he provides for their health insurance through private insurance he has purchased.

Quispe is not on speaking terms with Lusmilla and she did not appear at the hearing.

Quispe understood Lusmilla to earn the minimum wage. He stated that he believed that

his children would be hurt psychologically and economically if he were removed.




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       The IJ noted that the key issue was whether there was anything exceptional or

extremely unusual about the hardship Quispe’s children would face. The IJ found that

while the hardships were significant, “these types of hardships are the exact same kind of

hardships that occur in every case in which a parent is forced to leave the United States.

There’s nothing exceptional or extremely unusual about them.” App. 42.

       The BIA affirmed the IJ in a three-paragraph order. “We adopt and affirm the

decision of the Immigration Judge in regards to the respondent’s failure to establish

exceptional and extremely unusual hardship to his two United States citizen children.”

App. 36.

       DISCUSSION

       Pursuant to 8 U.S.C. § 1252(a)(2)(D), we have jurisdiction to review constitutional

claims and questions of law in challenges to orders of removal. “Nothing in

subparagraph (B) or (C), or in any other provision of this Act (other than this section)

which limits or eliminates judicial review, shall be construed as precluding review of

constitutional claims or questions of law raised upon a petition for review filed with an

appropriate court of appeals in accordance with this section.” Id.

       In his petition for review, Quispe challenges not the discretionary determination to

deny cancellation of removal, but the construction of § 1229b(b)(D). Quispe argues that

international treaty obligations and customary international law require that the words

“exceptional and extremely unusual hardship” be given “broad statutory definition.”

Petr.’s Br. 32. His brief states this argument in the form of a question: “Couldn’t it be

                                              4
considered [an] ‘exceptional and extremely unusual’ situation where a father, who loves

and cares for his young children and who is capable of supporting them, both emotionally

and economically, [is required] to be arbitrarily separated from them, probably forever?”

Id.

       The answer is that while Congress could have considered removal to be a per se

exceptional and extremely unusual hardship for the alien’s children, it did not. By the

plain terms of the statute, Congress reserved the hardship provision for “exceptional and

extremely unusual” circumstances, not the general scenario where removal will affect the

alien’s spouse, parent, or children. Additionally, Quispe has not pointed to any treaty or

customary international law that provides that an alien such as Quispe must be allowed to

remain in the country in light of the presence of his children. Nothing Quispe has brought

before the Court suggests that a separate body of law applies to this scenario and trumps

Congress’s enacted removal procedure.

       In light of the foregoing, we will DENY the petition for review.




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