                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0364n.06

                                           No. 08-3368
                                                                                        FILED
                                                                                    May 26, 2009
                                                                              LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


ENRIQUE MORALES-FLORES, and BEATRIZ                      )
MARTINEZ-MARQUEZ,                                        )
                                                         )
       Petitioners,                                      )
                                                         )   On Petition for Review from the
v.                                                       )   Board of Immigration Appeals
                                                         )
ERIC H. HOLDER, U.S. Attorney General,                   )   ORDER
                                                         )
       Respondent.                                       )
                                                         )
                                                         )




Before: COLE and CLAY, Circuit Judges; and Cleland, District Judge.*

       CLAY, Circuit Judge. Petitioners, Enrique Morales-Flores (“Morales-Flores”) and Beatriz

Martinez-Marquez (“Martinez-Marquez”), challenge the order of the Board of Immigration Appeals

(“Board” or “BIA”) affirming the denial of their applications for cancellation of removal and their

motions for voluntary departure. Petitioners challenge the Board’s order on various grounds,

alleging that the Board’s decision violates their Fifth Amendment Due Process rights. For the

reasons set forth herein, we DENY Petitioners request for the review.

                                                I.




       *
       The Honorable Robert H. Cleland, United States District Court for the Eastern District of
Michigan, sitting by designation.
No. 08-3368
Morales-Flores v. Holder

       Petitioners are both natives and citizens of Mexico. Morales-Flores illegally entered the

United States in 1990, whereas Martinez-Marquez was admitted to the United States in 1993 as a

non-immigrant for pleasure and remained in the United States for a period longer than authorized

under her visa. Petitioners have three U.S. citizen children (now ages 12, 9, and 8). Citing family

hardship, Petitioners individually applied for cancellation of removal and adjustment of status under

8 U.S.C. § 1229b(1).2

       At their removal hearing, Petitioners admitted all of the factual allegations contained in their

notices to appear and conceded the charges of removability. Petitioners subsequently appeared

before the immigration court seeking cancellation of removal. On May 24, 2006, the immigration

judge (“IJ”) denied Petitioners’ applications for cancellation of removal and also denied their

requests for voluntary departure. As to Morales-Flores, the IJ found that he failed to establish good

moral character and thus did not meet the requirements for consideration of cancellation of removal.

The IJ also noted that he would deny Morales-Flores’ cancellation request as a matter of discretion.

As to Martinez-Marquez, the IJ found that although she met the other statutory requirements for

cancellation of removal, her removal to Mexico would not present the requisite “exceptional and

extremely unusual hardship” to her U.S. citizen children. In reaching that conclusion, the IJ found


       2
         To establish eligibility for the discretionary relief of cancellation of removal, an alien must
demonstrate that: (1) 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; (2) has been “a person of good
moral character” during that period; (3) has not been convicted of certain enumerated 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 citizen of the United States or an alien lawfully admitted
for permanent residence.” 8 U.S.C. § 1229b(1).


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Morales-Flores v. Holder

that Petitioners’ children were healthy and Spanish speaking, Petitioners have a large family in

Mexico, and Petitioners had a reasonable amount of cash available to defray their anticipated

relocation expenses. (App’x 43-46.)

       The IJ also denied Petitioners’ request for voluntary removal on the ground that Petitioners

failed to produce valid identification documents that would permit their voluntary return to Mexico.

In support of his request for voluntary removal, Morales-Flores claimed that he had a birth

certificate, but did not produce it at his removal proceedings. In support of her request for voluntary

departure, Martinez-Marquez produced an untranslated document which she alleged was a birth

certificate, as well as an expired passport. After having the document translated, the IJ found that

the purported birth certificate “was more like a marriage certificate than anything else.” (App’x 47.)

After examining Martinez-Marquez’s proffered documents, the IJ concluded that she failed to

“demonstrate[] by clear and convincing evidence that she has the means and intent to depart the

United States because she has not produced a travel document sufficient to assure the lawful entry

into the country to which she might be departing.” (App’x 47-48.)

       On appeal, the BIA affirmed the IJ’s denial of Petitioners’ applications for cancellation of

removal and requests for voluntary departure.          Although noting that Petitioners presented

“sympathetic circumstances,” the BIA concluded that the IJ properly found that Petitioners did not

satisfy the exceptional circumstances requirement for cancelling removal because their children were

“healthy and had no special or unusual needs.” (App’x 67.) The Board also affirmed the IJ’s denial

of voluntary departure, concluding that the IJ’s ruling “was not effectively contested on appeal.”

(App’x 67.) Finally, because the BIA resolved the cancellation of removal claim on other dispositive

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Morales-Flores v. Holder

grounds, it declined to reach Morales-Flores’ claim that the IJ made erroneous factual findings in

concluding that he lacked the requisite good moral character. (App’x 67.)3

       This timely petition for review followed.

                                                II.

       The Immigration and Nationality Act “specifically divests jurisdiction of a court to review

judgments regarding the granting of discretionary relief, including the cancellation of removal.”

Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005) (citing 8 U.S.C. § 1252(a)(2)(B)).

Section 1252(a)(2)(D), however, clarifies that subsection B does not preclude this Court from

reviewing constitutional claims or questions of law. “Thus, while our jurisdiction is limited with

respect to voluntary departure determinations, where voluntary departure raises a constitutional or

legal question, we retain jurisdiction.” Patel v. Gonzales, 470 F.3d 216, 219 (6th Cir. 2006). The

denial of relief based on a “non-discretionary factual determination” also is properly subject to

appellate review. Santana-Albarran, 393 F.3d at 703.

       Although the government continues to contest this point, this Court has recognized that “Fifth

Amendment guarantees of due process extend to aliens in deportation proceedings, entitling them

to a full and fair hearing.” Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001). To

establish a Fifth Amendment violation, however, an alien petitioner bears the burden of




       3
        After petitioning this Court for review, Petitioners moved this Court to stay their removal.
The government opposed Petitioners’ motion, and cross-moved to dismiss Petitioners’ petition for
review for lack of jurisdiction. On June 13, 2008, a prior panel of this Court granted Petitioners’
motion for stay of removal and denied the government’s motion to dismiss.

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No. 08-3368
Morales-Flores v. Holder

demonstrating “fundamental unfairness” in his or her removal proceedings, and thus must show that

a defect in the removal proceedings “might have led to a denial of justice.” Id. (citation omitted).

        This Court reviews alleged due process violations under a de novo standard of review. See

Gaza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2005); Vasha v. Gonzales, 410 F.3d 863,

872-73 (6th Cir. 2005). That standard applies equally to alleged due process violations based upon

the manner in which an immigration judge or the BIA conducts a deportation hearing. See

Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998). Therefore, we must review de novo the

BIA’s determination that Petitioners failed to “effectively contest” the IJ’s denial of their request for

removal.

        Although we review legal determinations de novo, see Harchenko v. INS, 379 F.3d 405, 409

(6th Cir. 2004), the IJ’s factual determination regarding the adequacy of Petitioners’ identification

documents is reviewed under the substantial-evidence test, Santana-Albarran, 393 F.3d at 705.

Under that test, “in order to reverse the BIA’s factual determinations, the reviewing court must find

that the evidence not only supports a contrary conclusion, but indeed compels it.” Klawitter v. INS,

970 F.2d 149, 152 (6th Cir. 1992) (emphasis in original). The substantial evidence standard is set

by the statutory scheme, which provides that “administrative findings of fact are conclusive unless

any reasonable adjudicator would be compelled to conclude to the contrary.”                 8 U.S.C. §

1252(b)(4)(B).

        “When the Board adopts the decision of the IJ in lieu of issuing its own opinion, we review

the IJ’s decision as the final agency decision.” Denko v. INS, 351 F.3d 717, 726 (6th Cir. 2003);

Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005). Where, as here, the Board adopts and affirms

                                                  -5-
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Morales-Flores v. Holder

the IJ’s opinion, but provides additional reasons for its ruling, we review the IJ’s decision as well

as the Board’s additional rationale. Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir. 2008) (citing

Gila v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005)).

                                                 III.

       Petitioners assert a number of claims alleging Due Process violations by the BIA, including

that the Board denied Morales-Flores a fundamentally fair hearing by failing to consider the IJ’s

conclusion that he lacked the requisite good moral character to warrant consideration for cancellation

of removal, that the Board and IJ applied an overly restrictive test for determining whether they had

demonstrated circumstances that supported cancellation of removal, and that the Board improperly

failed to submit their claims to a three-judge panel. Petitioners allege that, as a result of these

various defects, the Board denied them the fundamentally fair hearing they are guaranteed under the

Fifth Amendment. Although we have recognized that Due Process protections extend to aliens in

their removal hearings, an alien petitioner “first must show that the BIA’s failure to consider [their]

voluntary departure claim deprived [them] of a liberty interest.” Patel, 470 F.3d at 220.

       As this Court repeatedly has recognized, a decision denying voluntary departure is a form of

discretionary relief. See Patel, 470 F.3d at 220; Ali v. Ashcroft, 366 F.3d 407, 412 (6th Cir. 2004);

Lulaj v. INS, 71 F. App’x 524, 526 (6th Cir. 2003) (unpublished opinion). Because the denial of a

request for cancellation of removal or voluntary departure is discretionary, this Court has held that

the denial of such relief “‘does not amount to a deprivation of a liberty interest.’” Ali v. Ashcroft,

366 F.3d 407, 412 (6th Cir. 2004) (quoting Huicochea-Gomez, 237 F.3d at 700). Because Petitioners



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Morales-Flores v. Holder

cannot demonstrate a liberty interest in the denial of their requested relief, they cannot prevail on a

due process claim. See Patel, 470 F.3d at 220.

                                                  IV.

       In addition to lacking a liberty interest in their requested relief, Petitioners’ claims would fall

on other grounds as well.

       First, there is no merit to Petitioners’ claim that the BIA erred in concluding that they did not

“effectively contest” the IJ’s denial of their request for voluntary departure. In their Notice of

Appeal to the BIA, Petitioners did challenge the IJ’s decision regarding their cancellation of removal

claim generally, but they did not raise any issue regarding the IJ’s particular findings regarding their

proffered documents. (App’x 49-62.) Although Petitioners’ brief to the BIA did address the issue,

it did not provide much by way of argument on this issue.4 Petitioners’ brief merely noted the

documents that were presented to the IJ and offered a conclusory suggestion that Martinez-Marquez

would have been admitted to Mexico based on these documents. Petitioners did not address the

factual findings of the IJ regarding those documents,5 nor did Petitioners contest the IJ’s conclusion




       4
         In fact, Petitioners’ entire argument amounted to three sentences: “The Immigration Judge
wrongfully denied voluntary departure to the Respondent-wife based upon her not having produced
a travel document sufficient to assure the lawful entry into the country to which she might be
departing. She had submitted a family certificate to the court and an expired Mexican passport.
Based on those documents, she would have been given lawful entry into Mexico.” (App’x 306.)
        5
        For instance, Petitioners’ brief did not respond to the IJ’s determination that Martinez-
Marquez’s purported birth certificate “was more like a marriage certificate than anything else.” Nor
did Petitioners ever attempt to overcome Morales-Flores’ failure to proffer any documentation to
support his request for voluntary departure.

                                                  -7-
No. 08-3368
Morales-Flores v. Holder

that they failed to demonstrate their “intent” to depart. On this record, we find no error in the

Board’s finding that Petitioners’ did not “effectively contest” this issue.

       Second, Morales-Flores challenges the Board’s failure to consider his claim that the IJ erred

in concluding that he lacked the requisite “good moral character” to be eligible for consideration of

cancellation of removal. The BIA, however, declined to reach that claim because it resolved his

appeal on other dispositive grounds. Even if we were inclined to find that the IJ’s factual

determination was erroneous, Morales-Flores can show no Due Process violation in the BIA’s

decision not to reach an alternative basis for its holding, and certainly none that amounts to

fundamental unfairness.

       Third, Petitioners challenge as “overly restrictive” the IJ’s application of the requisite

“exceptional and extremely unusual hardship” standard in considering their application for the

cancellation of removal on the basis of family hardship. Under 8 U.S.C. § 1229b, the Board “may

cancel removal” where the alien satisfies certain criteria, including “establish[ing] 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.” 8

U.S.C. § 1229b(b)(1)(D) (emphasis added). The BIA applies this standard narrowly in reviewing

a request for cancellation of removal. See, e.g., In re Recinas, 23 I. & N. Dec. 467, 470-72 (BIA

2002) (finding a “high threshold” hardship standard satisfied where the alien was a single mother

with six children, four of whom were United States citizens, and she had no close relatives in

Mexico, her entire family lived in the United States, including parents who were her children’s

caretaker, and she had no available means of support); In re Andazola-Rivas, 23 I. & N. Dec. 319,

                                                -8-
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Morales-Flores v. Holder

322 (BIA 2002) (acknowledging that there was “no doubt that [alien mother] and her children will

suffer some hardship upon moving to Mexico,” but concluding that the presence of the father and

savings of “about $7,000” would help defray burden of the transition); In re Monreal, 23 I. & N.

Dec. 56, 59 (BIA 2001) (concluding that the “legislative history also plainly states that Congress

intended to tighten the hardship standard,” and thus requiring an alien to “‘provide evidence of harm

to his spouse, parent, or child substantially beyond that which ordinarily would be expected to result

from the alien’s deportation’” (quoting H.R. Conf. Rep. No. 104-828)). In each of these cases, the

Board examined the same factors that the IJ reviewed here. Petitioners thus cannot demonstrate that

the Board or IJ applied this standard inconsistently.

       Petitioners also fail to provide any support for their contention that the IJ’s application of this

standard was “too restrictive based upon the Congressional history of the legislation.” (Pet’rs Br.

at 18.) On the contrary, the record demonstrates that the IJ properly considered the health and needs

of Petitioners’ children, the presence of family in Mexico to help support the children, and

Petitioners’ financial assets. Although Petitioners may disagree with the IJ’s conclusions, we cannot

find legal error in that analysis, and there is nothing to suggest that it is not supported by the

available evidence. On this record, we cannot conclude that the IJ’s application of the requisite

standard was “overly restrictive.” Whether we may disagree with the IJ’s conclusions is irrelevant

where the IJ’s consideration of the hardship factors comports with the language of the statute and

precedential decisions applying that provision.

       Finally, Petitioners claim that the Board committed procedural error by failing to submit their

appeals to a three-judge panel. That claim also must fail. Although this Court has yet to determine

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whether an alien may challenge under the Administrative Procedure Act the Board’s use of a

streamlined review process, see Vasha v. Gonzales, 410 F.3d 863, 876 (6th Cir. 2005) (noting that

the issue “remains an open question” in this circuit, and declining to reach the issue), this Court

previously has concluded that the streamlined review process employed by the BIA does not violate

Due Process, Lumaj v. Gonzales, 462 F.3d 574, 576 (6th Cir. 2006) (citing Denko v. INS, 351 F.3d

717, 729 (6th Cir. 2003)). In any event, Petitioners cannot show that this alleged defect resulted in

prejudice or fundamental unfairness. See Ndrecaj v. Mukasey, 522 F.3d 667, 673 (6th Cir. 2008);

Huicochea-Gomez, 237 F.3d at 699 (“To constitute fundamental unfairness, however, a defect in the

removal proceedings must have been such as might have led to a denial of justice.”).

                                                 V.

       For the foregoing reasons, we hereby DENY Petitioners’ petition for review.




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