                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-7-2009

Vasquez Madrigal v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1814




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IMG-024                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-1814


                      JOSE SANTIAGO VASQUEZ MADRIGAL,
                                                 Petitioner
                                     v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                               Respondent


                          On a Petition For Review of an Order
                          of the Board of Immigration Appeals
                               (Agency No. A97-511-166)
                           Immigration Judge: Annie S. Garcy


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 18, 2009

              Before: MCKEE, NYGAARD AND ROTH Circuit Judges

                              (Opinion filed: April 7, 2009)


                                        OPINION



PER CURIAM

      Petitioner Jose Santiago Vasquez Madrigal, a native and citizen of Costa Rica, last

entered the United States on February 16, 1990. During the time he lived and worked in

the United States his wife gave birth to three children. Eventually he was detained by
immigration authorities, and he was served with a Notice To Appear for removal

proceedings on April 14, 2004. Ultimately, he conceded that he was removable under an

amended Notice to Appear, which charged under Immigration & Nationality Act (“INA”)

§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182 (a)(7)(A)(i)(I) that he lack valid entry documents.

Vasquez applied for cancellation of removal under INA § 240A(b)(1), 8 U.S.C. §

1229b(b)(1), for certain non-permanent residents, or, in the alternative, voluntary

departure.1 He contended that his removal would present an exceptional and extremely

unusual hardship to his three United States citizen children.

       At his removal hearing on May 22, 2006, Vasquez testified that he was married

and had three children. He entered the United States through Canada and has lived here

continuously since February of 1990. He left Costa Rica when he was very young. If

removed, he would have to start over again there, and he would not be able to provide as

well financially for his children. They would suffer a lower standard of living. If they

came with him to Costa Rica, they would not do as well in school because they would be

regarded as foreigners. He would have to pay tuition in Costa Rica.

       The government attempted to show that Vasquez was not a person of good moral

character because he filed his federal income taxes under the wrong status. However,


   1
     Cancellation of removal under INA § 240A(b)(1) is available to an alien who has
been physically present in the United States for at least 10 years, has been a person of
good moral character, has not been convicted of a specified criminal offense, and has
established that removal would result in exceptional and extremely unusual hardship to
the alien's spouse, parent, or child, who is a United States citizen or lawful permanent
resident. Id. at § 1229b(b)(1)(A)-(D).
                                             2
several letters from friends, employers, and a school official attesting to the good

character of the entire family also were submitted into evidence.

       Julia Andrea Angulo, Vasquez’s wife, then testified. She entered the United States

in December of 1990. She was not in removal proceedings. Ms. Angulo testified that she

and Vasquez raised their children together as a team. The family has never been

separated. If Vasquez left, the children would be depressed. She and the children would

not accompany Vasquez to Costa Rica, however, because the children would not want to

leave the United States. When questioned by the IJ, Ms. Angulo acknowledged that the

children were healthy, and did well academically, and two of them spoke a little Spanish.

The children attend Catholic school and she and Vasquez pay tuition. Their two sons

play soccer and baseball, and their daughter participates in a children’s choir at church.

The two older children have traveled to Costa Rica to visit their grandparents.

       On the same day as the removal hearing, the IJ denied Vasquez’s application for

cancellation of removal. The IJ found insufficient evidence that his removal would result

in “exceptional and extremely unusual hardship” to his three U.S. citizen children, the

stringent standard he was required to meet. Vasquez had failed to make a case that the

children would fair poorly if the entire family relocated to Costa Rica; he was not even

certain about whether his children might have dual citizenship. The IJ was not inclined to

rule that Vasquez did not have a good moral character based on the tax evidence, because,

for example, the Internal Revenue Service never prosecuted him for improperly filing as

head of household; she rested her decision solely on the “exceptional and extremely

                                              3
unusual hardship” issue. She noted that, although Vasquez expressed uncertainty about

how he would be able to support his children from abroad, he did not submit evidence of

country conditions in Costa Rica, or evidence concerning whether he would be able to

find employment there. Vasquez previously worked as a truck driver and landscaper, and

he presented no evidence that his skills in this regard were not transferrable to Costa Rica.

       As to the children, if they remained in the United States, the evidence showed that

their mother would continue to love and support them. If they accompanied their parents

to Costa Rica, they would continue to have the love and support of both parents. There

was no evidence that Vasquez would be forced to divest himself of any real estate or

assets that would damage his ability to support his family, and, should the children suffer

a lower standard of living, either in the United States or abroad, this was not enough to

justify relief under the standards applicable to the case, as set forth in Matter of Monreal,

23 I. & N. Dec. 56 (BIA 2001), for example. The IJ ordered Vasquez removed to Costa

Rica, and granted him voluntary departure in the alternative.

       Vasquez appealed to the Board of Immigration Appeals. On February 19, 2008,

the Board dismissed the appeal on the basis of the hardship issue, for the reasons given by

the IJ.2 In addition to citing Matter of Monreal, the Board noted that the standards for

relief also are set forth in Matter of Andazola, 23 I. & N. Dec. 319 (BIA 2002), and

Matter of Recinas, 23 I. & N. Dec. 467 (BIA 2002), and did not warrant relief in


   2
    The Board did not decide the good moral character issue and therefore we need not
reach it.
                                              4
Vasquez’s case.3

       Vasquez has timely petitioned for review. Prior to briefing, the government

moved to dismiss the petition for review for lack of subject matter jurisdiction, and a

motions panel of this Court referred the motion, without decision, to a merits panel

pursuant to Third Circuit I.O.P. 10.3.5.

       We will dismiss the petition for review for lack of subject matter jurisdiction. We

have jurisdiction generally to review final orders of removal pursuant to INA § 242(a), 8

U.S.C. § 1252(a), but section 242(a)(2)(B)(i) of the jurisdictional statute, 8 U.S.C. §

1252(a)(2)(B)(i), divests us of jurisdiction over the Board’s discretionary decisions

regarding cancellation of removal under 8 U.S.C. § 1229b. See Mendez-Moranchel v.

Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). To succeed on an application for



   3
     Prior to the Illegal Immigration Reform and Immigrant Responsibility Act
(“IIRIRA”), an alien could apply for suspension of deportation, where it was only
necessary to show “extreme hardship.” IIRIRA’s standard of “exceptional and extremely
unusual hardship” is less generous than the former standard. See Matter of Andazola, 23
I. & N. Dec. at 322; Matter of Recinas, 23 I. & N. Dec. at 470. In Matter of Monreal, 23
I. & N. Dec. 56, the Board found that, to establish "exceptional and extremely unusual
hardship," an alien must show that the qualifying relative would suffer hardship
substantially beyond that which would normally result from deportation. The applicant
need not show that the hardship would be unconscionable. The Board will consider “the
ages, health, and circumstances of qualifying ... relatives.” Id. at 63. An applicant with
financially dependent elderly parents would have a strong case and so would an applicant
who had a qualifying child “with very serious health issues, or compelling special needs
in school.” Id. However, a “lower standard of living or adverse country conditions in the
country of return ... generally will be insufficient.” Id. The Board reaffirmed in
Gonzalez-Recinas, that the “exceptional and extremely unusual” requirement is "not so
restrictive that only a handful of applicants, such as those who have a qualifying relative
with a serious medical condition, will qualify for relief." Id., 23 I. & N. Dec. at 470.
                                              5
cancellation of removal an alien must establish, among other things, that removal would

result in “exceptional and extremely unusual hardship” to a qualifying relative. We held

in Mendez-Moranchel that this determination is a “quintessential discretionary

judgment.” Id. The Board, in reliance upon the IJ’s more comprehensive decision,

affirmed the denial of Vasquez’s application for cancellation of removal based solely on a

discretionary determination that he failed to establish that his removal would result in

"exceptional and extremely unusual hardship" to his U.S. citizen children, see 8 U.S.C. §

1229b(b)(1)(D). This is an unreviewable decision.

       Vasquez contends that the IJ violated his right to a full and fair hearing by failing

to hear all relevant testimony and by implying that he did not meet the test for good moral

character. We do not agree that these contentions give us jurisdiction. The REAL ID Act

amended INA § 242(a) to provide for jurisdiction in the courts of appeals to review

constitutional claims and questions of law raised by aliens whose petitions for review

would otherwise be outside our jurisdiction, see INA § 242(a)(2)(D), 8 U.S.C. §

1252(a)(2)(D); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006) (factual and

discretionary determinations continue to fall outside our jurisdiction but 8 U.S.C. §

1252(a)(2)(D) would extend to question whether Board applied wrong legal standard in

making discretionary determination). Vasquez points to no evidence that was not

considered, and the IJ emphatically declined to find that he was not a person of good

moral character. Furthermore, the Board applied the correct legal standard to his case.

       We have carefully reviewed the evidence of record, but, as the IJ noted, Vasquez

                                              6
could have produced evidence of country conditions, for example, or other evidence that

he would not be able to find employment in Costa Rica. We conclude that nothing in the

IJ’s decision indicates that she did not take into account the required factors to determine

that Vasquez failed to establish "exceptional and extremely unusual hardship" to his

United States citizen children. We thus conclude that his quarrel is over the correctness of

the factual findings and justification for the discretionary choices of the IJ and the Board,

and we do not have jurisdiction to consider these arguments. 8 U.S.C. § 1252(a)(2)(B)(i);

Mendez-Moranchel, 338 F.3d at 179.

       For the foregoing reasons, we will dismiss the petition for review for lack of

subject matter jurisdiction. The government’s motion to dismiss is denied as moot.




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