                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-17-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2515




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Yupanqui v. Atty Gen USA" (2004). 2004 Decisions. Paper 63.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/63


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 03-2515


                              PORFIRIO YUPANWQUI,

                                                       Petitioner

                                          v.

                         JOHN ASHCROFT, Attorney General
                              of the United States, and
                           BUREAU OF CITIZENSHIP AND
                          IMMIGRATION SERVICES (BCIS)
                              DISTRICT DIRECTOR,

                                                      Respondents


                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                               (Board No. A78-573-882)


                       Submitted Under Third Circuit LAR 34.1(a)
                                     on 11/15/04

                Before: ROTH , SMITH, and WEIS, Circuit Judges.

                              (Filed: December 17, 2004)




                                      OPINION


ROTH, Circuit Judge:
       Petitioner Porfirio Yupanqui is a native of Peru. On November 11, 1989, he

entered the United States without inspection in violation of 8 U.S.C. § 1182(a)(6)(A)(i)

and was subject to removal from the United States. Yupanqui conceded his removability

before an Immigration Judge (IJ) but applied for a cancellation of removal in accordance

with 8 U.S.C. § 1229(b). On December 7, 2001, the IJ denied Yupanqui’s application for

cancellation of removal. The IJ held that Yupanqui did not demonstrate that his

American citizen daughter would suffer “exceptional and extremely unusual hardship” –

as defined in 8 U.S.C. § 1229(b)(1)(D) – if he were to be removed from the United States.

This decision was affirmed without an opinion (AWO) by the Board of Immigration

Appeals (BIA).

       Yupanqui seeks a petition for review by this court. He raises two issues that he

feels were errors committed during the previous proceedings. He argues (1) that the IJ’s

decision concerning the lack of a showing of “exceptional and extremely unusual

hardship” was erroneous, and (2) that his due process rights were violated by the BIA’s

decision to affirm without issuing an opinion. Because we lack the jurisdiction to review

discretionary decisions made by the IJ and because the BIA’s AWO does not violate due

process, we will deny Yupanqui’s petition.1

       We have recently held in an analogous case that pursuant to 8 U.S.C. §



   1
   We will not discuss the facts because we write only for the parties and they are
familiar with them.


                                              2
1252(a)(2)(B)(i), we do not have jurisdiction to hear discretionary decisions made under 8

U.S.C. § 1229(b). Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178 (3d Cir. 2003). We

also held that the question of whether an alien can establish “exceptional and extremely

unusual hardship” under Section 1229(b)(1)(D) is a discretionary question. Id. at 178-79.

We stated that, “[t]he determination of whether the alien has established the requisite

hardship is a quintessential discretionary judgment.” Id. at 179. This decision was

consistent with other circuits that addressed the same question. Id. Thus, we lack

jurisdiction to address Yupanqui’s argument that the IJ and BIA wrongly decided that he

did not meet the necessary hardship standard.

         As to the due process argument, after Yupanqui filed his brief in this appeal, we

held in Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003), that “the BIA could have articulated

its reasons for affirming the IJ’s order, but just because it had the power to do so, does not

mean the Constitution required it to exercise that power.” Id. at 240. We concluded that

a “meaningful review” is established as long as either the BIA or the IJ “put forth a

sufficiently reasoned opinion.” Id. at 243. The IJ’s opinion here meets that standard.

Hence, with Dia as controlling precedent in this circuit, Yupanqui’s due process argument

fails.

         For the aforementioned reasons, we will deny Yupanqui’s petition for review.




                                               3
