                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-1-2008

Moran-Hernandez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2323




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    ___________

                              Nos. 07-2323 & 07-3560
                                   ___________

                      ONILDA EVILI MORAN-HERNANDEZ,
                                                Petitioner,
                                     v.

                ATTORNEY GENERAL OF THE UNITED STATES
                   ____________________________________

                        On a Petition For Review of an Order
                        of the Board of Immigration Appeals
                              Agency No. A73-533-277
                         Immigration Judge: Annie S. Garcy
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  August 13, 2008


              Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                           (Opinion filed: October 1, 2008)


                                      OPINION




PER CURIAM

      Appellant Onilda Evili Moran-Hernandez, a native and citizen of Guatemala, filed

a Form I-589 application for asylum and withholding of removal on or about December
23, 1994. It was referred to an Immigration Judge, and, on July 26, 2004, about 10 years

later, Moran-Hernandez was served with a Notice to Appear (“NTA”) for removal

proceedings. It was alleged that she was removable under Immigration and Nationality

Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who entered

without inspection. During the decade that her asylum application was pending, Moran-

Hernandez gave birth to a daughter, Isabel Orellana, and a son, Angel Orellana, Jr., and,

although she did not marry, she and the children lived with their father, Angel Orellana,

Sr., as a family in central New Jersey. Following being served with the NTA, Moran-

Hernandez obtained counsel, withdrew her asylum application, and applied for

cancellation of removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), for certain non-

permanent residents, contending that her removal would present an exceptional and

extremely unusual hardship to her two United States citizen children who would suffer

economic and educational harm in Guatemala.

       At her removal hearing, Moran-Hernandez testified that she worked cleaning

houses in Princeton, New Jersey, earning about $9,000 annually.1 The children’s father

had a landscaping business and supported his family. He bought a home valued at

$125,000 where the family lived, and together the couple made regular payments on the

$100,000 mortgage. Isabel, age 6, attended Saint Paul School in Princeton, which cost

the couple $3,700 each year in tuition. She also takes ballet lessons and has attended

   1
    The administrative record contains character references attesting to Moran-
Hernandez’ honesty and dependability.

                                             2
modeling school in Philadelphia. Angel, Jr., age four, attended preschool in Princeton.

Moran-Hernandez testified it was her hope that her children, unlike her, would be able to

study beyond the sixth grade. Public education in rural areas ends for Guatemalan

children at the sixth grade, and uneducated men and women in Guatemala are condemned

to extreme poverty. If removed to Guatemala, she would have to live in her deceased

mother’s two-room adobe house in the village of Jalapa. The house has no running water

and no bathroom. Additionally, the house was badly damaged by a tropical storm that

devastated the region.

       The children’s father, Angel Orellana, Sr., also a Guatemalan citizen, was removed

from the United States by the Department of Homeland Security six months or so prior to

Moran-Hernandez’ removal hearing. Moran-Hernandez testified that, following his

removal, she assumed operation of the landscaping business, which employed two

persons, and had, as assets, lawnmowers, leaf blowers, and a truck. She testified that the

business brought in approximately $1,800 each month. If she is removed to Guatemala,

she would return to selling food, earning about $40-50 weekly. Her father lives in nearby

San Juan. She did not think she would be welcomed there because he recently remarried.

The children’s father has returned to agricultural work in San Juan, but his tomato crop

was destroyed by the tropical storm. Moran-Hernandez submitted recent reports on

human rights abuses in Guatemala, and squalid and unsanitary conditions following the

tropical storm.



                                             3
       The Immigration Judge granted Moran-Hernandez’ application for cancellation of

removal on December 12, 2005, and adjusted her status to that of a lawful permanent

resident. The IJ concluded that Moran-Hernandez met the physical presence, good moral

character, and no specified crimes requirements. As to the “exceptional and extremely

unusual hardship” standard, the IJ considered Matter of Monreal, 23 I. & N. Dec. 56 (BIA

2001) (denying relief to father of three where his undocumented wife had returned to

Mexico with their infant prior to his removal hearing), but reasoned that Moran-

Hernandez’ case was closer to In re: Gonzalez-Recinas, 23 I. & N. Dec. 467 (BIA 2002)

(en banc), where the Board of Immigration Appeals held that cancellation of removal was

warranted because the single mother of six children (four of whom were qualifying

relatives), was the sole means of economic support for her children, and she had no

comparable means of providing for them in Mexico, no close family members in Mexico,

her ex-husband did not help to support the children, and the children did not speak

Spanish and had never traveled to Mexico. The IJ concluded that, like the single mother

in Recinas, Moran-Hernandez would be on her own with little or no ability to feed and

house her children. The children’s father and Moran-Hernandez’ father were unlikely to

provide any financial support to the children in Guatemala, and Guatemala had recently

been severely damaged by the tropical storm, which had caused unsanitary conditions and

damage to housing and crops. Moran-Hernandez’ children thus would be forced to

endure, not just a lower standard of living, but life in hopeless circumstances in an



                                             4
impoverished and devastated place.

       The Department of Homeland Security (“DHS”) appealed, emphasizing other

factual findings made by the IJ, including that Moran-Hernandez and Angel Orellana, Sr.,

had accumulated assets in the United States that, once sold, would ease her transition to

the more impoverished nation. In addition, Mr. Orellana, since his removal in 2005, had

begun work in Guatemala as a farmer. He would be there to provide financial and

emotional support, notwithstanding recent bad weather. The children speak some

Spanish and are in good health. In short, the record established only that Moran-

Hernandez would make a better living in New Jersey than she would in Guatemala, and

thus the high standard established by Congress when IRRIRA was enacted was not

satisfied.

       In a decision dated April 4, 2007, the Board sustained the appeal, vacated the IJ’s

decision, and denied the application for cancellation of removal. The Board did not agree

that its decision in Recinas, 23 I. & N. Dec. 467, applied, reasoning instead that Moran-

Hernandez’ circumstances were more like the alien’s in In re: Andazola-Rivas, 23 I. & N.

Dec. 319, 324 (BIA 2002) (en banc) (denying relief to unmarried mother of two). Like

the alien in Andazola, Moran-Hernandez had accumulated assets in the United States that

would help her in establishing a new life in Guatemala. The children’s father lived in

Guatemala and there were other family members there to provide emotional support. The

Board further noted that, even though her family had been negatively impacted by a



                                             5
natural disaster, Moran-Hernandez had not shown that she could not find work in

Guatemala or that she could not relocate to an area that was not damaged. She had

experience selling food, and had acquired skills as a house cleaner and owner of a

landscaping business. The Board granted Moran-Hernandez voluntary departure.

       Moran-Hernandez filed a timely motion for reconsideration pursuant to 8 C.F.R. §

1003.2(b), contending that the Board did not consider the totality of the record. She also

filed a timely petition for review of the Board’s April 2007 decision in this Court (No. 07-

2323). In a decision dated July 26, 2007, the Board denied the motion, concluding that it

raised no new issues or facts, and stating that it had indeed considered the entire record in

issuing its original decision. Moran-Hernandez timely filed a petition for review of this

decision (No. 07-3560). Our Clerk has consolidated the petitions for review.

       We will grant the petitions for review, reverse the Board’s April 4, 2007 and July

26, 2007 decisions, and reinstate the IJ’s December 12, 2005 decision granting Moran-

Hernandez cancellation of removal under INA § 240A(b)(1) and adjusting her status to

that of Lawful Permanent Resident of the United States. We have jurisdiction generally

to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). Section

1252(a)(2)(B)(i) of the jurisdictional statute removes our 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 cancellation of removal an alien must establish, among other things, that



                                              6
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. Thus, if the Board denied Moran-Hernandez’ application

for cancellation of removal based solely on a discretionary determination that she failed to

establish that her removal would result in "exceptional and extremely unusual hardship"

to her U.S. citizen children, see 8 U.S.C. § 1229b(b)(1)(D), we would lack jurisdiction,

and the absence of jurisdiction would extend to Moran-Hernandez’ motion for

reconsideration as well because the issue presented by it is essentially the same

discretionary hardship issue originally decided, see Fernandez v. Gonzales, 439 F.3d 592,

600 (9th Cir. 2006); Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir. 2006).

       Moran-Hernandez contends, however, that she was deprived of due process, thus

bringing her case within 8 U.S.C. § 1252(a)(2)(D), which restores our jurisdiction to

consider constitutional claims and questions of law. In her effort to avoid the

jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B)(i), she argues persuasively that the Board

failed to review the entire record before making its determination that she was not eligible

for cancellation of removal, and failed to consider the factors it set forth in its precedent,

Recinas, 23 I. & N. Dec. 467. We conclude that we have jurisdiction over what is

fundamentally an argument concerning the application of the law to uncontested facts.

See Kamara v. U.S. Attorney General, 420 F.3d 202, 211 (3d Cir. 2005) (under the Real

ID Act of 2005, jurisdiction extends to constitutional issues, pure questions of law, and



                                               7
issues of application of law to uncontested facts). See also Cabrera-Alvarez v. Gonzales,

423 F.3d 1006, 1009 (9th Cir. 2005) (finding jurisdiction under 8 U.S.C. § 1252(a)(2)(D)

over question whether Board’s interpretation of hardship standard violated due process).

Cf. 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).2

       We turn then to the merits of the only cancellation of removal issue presented by

the petitions for review – whether Moran-Hernandez has shown that her two U.S. citizen

minor children will suffer exceptional and extremely unusual hardship if she is removed

to Guatemala. Congress created the relief of cancellation of removal under INA §

240A(b)(1) as part of the Illegal Immigration Reform and Immigrant Responsibility Act.

It 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



   2
     Moran-Hernandez also contends that she was encouraged to withdraw her asylum
application without a precise understanding that the Department of Homeland Security
could appeal the IJ’s decision awarding her cancellation of removal, and actually prevail.
This argument presents neither a constitutional claim nor question of law. Moran-
Hernandez was represented by counsel when she withdrew the asylum application, and
she withdrew it well before she had any indication that the IJ would grant her cancellation
of removal. We discern no violation of her right to due process in these circumstances.
We also find unpersuasive Moran-Hernandez’ contention that she was confused by the
questions put to her during the removal hearing.

                                              8
extremely unusual hardship to the alien's spouse, parent, or child, who is a United States

citizen or lawful permanent resident. 8 U.S.C. § 1229b(b)(1)(A)-(D). Moran-Hernandez

satisfied the first three requirements, and they are not at issue.

       Prior to IIRIRA, an alien could apply for suspension of deportation, where it was

only necessary to show “extreme hardship.” IRRIRA’s standard of “exceptional and

extremely unusual hardship” is less generous than the former standard. See Andazola, 23

I. & N. Dec. at 322; Recinas, 23 I. & N. Dec. at 470. In 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. Id. at 60. See also Andazola, 23 I. & N.

Dec. at 322. Monreal and Andazola – which the Board cited here along with Recinas –

remain the "seminal interpretations of the meaning of 'exceptional and extremely unusual

hardship.'" Recinas, 23 I. & N. Dec. at 472-73. Recinas, 23 I. & N. Dec. 467, did not

articulate a different standard for evaluating "exceptional and extremely unusual

hardship" than Monreal, 23 I. & N. Dec. 56, and Andazola, 23 I. & N. Dec. 319, but the

Board certainly did reaffirm in Recinas, an en banc decision, 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.

       We hold that the Board misapplied its precedent to uncontested facts by failing to



                                               9
take into account Moran-Hernandez’ evidence that Guatemala had recently been

devastated by a tropical storm and thus offered her no immediate way to feed and house

her two minor qualifying children. Just as Hurricanes Katrina, Rita and Wilma devastated

parts of the United States during the notorious 2005 Atlantic hurricane season, Hurricane,

and then Tropical Storm, Stan devastated Guatemala in early October 2005. Uncontested

evidence was presented at Moran-Hernandez’ removal hearing that Tropical Storm Stan

caused widespread flooding and mudslides that devastated more than half of Guatemala.

It was considered one of the deadliest of the 2005 season.3 Moran-Hernandez’ evidence

established that more than half of Guatemala – the Pacific Coast, southwest and central

areas of Guatemala, including Jalapa -- was affected. Shelter, sanitary conditions, and the

nation’s food supply were affected. A.R. 366-69. Notwithstanding this indisputable

evidence of the severe harm caused by a very recent natural disaster in the country

designated for removal, the Board ignored its own requirement, see Monreal, 23 I. & N.

Dec. at 63; Recinas, 23 I. & N. Dec. at 471, to give due consideration to how a severely

lower standard of living caused by an extremely unusual event might affect the qualifying

relatives.

       The record evidence shows that Moran-Hernandez and the children’s father would



   3
     Like the names “Katrina” and “Rita,” the name “Stan” has been retired from the list
of potential hurricane names by an international committee of the World Meteorological
Organization in recognition of the deadly and costly nature of the storm, according to the
National Weather Service National Hurricane Center’s website,
http://www.nhc.noaa.gov/retirednames.shtml.

                                            10
have no choice but to try and make a living in Guatemala through food preparation and

agriculture, respectively. There is no evidence whatever that the couple would be able to

run a landscaping business in devastated Guatemala, or that Moran-Hernandez would be

able to clean houses as she did in Princeton, New Jersey. Her extended family lost their

income for the immediate future due to the October 2005 storm. Although the record

establishes that the children’s father will likely be there for them emotionally, there were

no resources for him to care for and maintain the children because he suffered a loss of

his crops in the storm. The father in Andazola, 23 I. & N. Dec. 319, in contrast, had

authorization to remain in the United States and his ability to continue working and

supporting his children was unaffected. Furthermore, Moran-Hernandez would be

relegated to living in the two-room adobe hut where she was raised, which was “wet” at

the time of her hearing from the tropical storm. At the time of her removal hearing, the

children’s father was living in a nylon tent because his adobe hut was uninhabitable.

       In short, this is not simply an unexceptional case of qualifying relatives having to

adjust to a lower standard of living. In Monreal, the Board held that it must be

demonstrated that the qualifying relative would suffer hardship that is substantially

beyond that which would ordinarily be expected to result from the alien's deportation.

That showing was made here with evidence of the devastating effects of Tropical Storm

Stan. Monreal holds that it need not be shown that such hardship would be

“unconscionable,” 23 I. & N. Dec. at 60, but, in effect, that is the showing the Board



                                             11
required of Moran-Hernandez. Taking all of the evidence into consideration, with due

regard for its significance, and applying all of the factors identified in Monreal and

Andazola, as required by due process, this case amply demonstrates a truly exceptional

situation, Monreal, 23 I. & N. Dec. at 62, in which removal of an alien would work an

“extremely unusual” hardship on two qualifying United States citizens.

       For the foregoing reasons, we will grant the petitions for review, reverse the

Board’s April 4, 2007 and July 26, 2007 decisions, and reinstate the IJ’s December 12,

2005 decision granting Moran-Hernandez cancellation of removal under INA §

240A(b)(1) and adjusting her status to that of lawful permanent resident.




                                             12
