Robert Crew v. Atty Gen USA

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MANDATE ISSUED, filed.

Robert Crew v. Atty Gen USA

Doc. 0 Att. 1

Case: 10-1272 Document: 003110360995 Page: 1

Date Filed: 11/29/2010

NOT PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 10-1272 ___________ R O B E R T D. CREW, P e titio n e r v. A T T O R N E Y GENERAL OF THE UNITED STATES, R e sp o n d e n t ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A89 510 076) Im m ig ra tio n Judge: Honorable Susan Roy ____________________________________ S u b m itte d Pursuant to Third Circuit LAR 34.1(a) O c to b e r 6, 2010 B e f o re : RENDELL, FISHER and GARTH, Circuit Judges (O p in io n filed October 7, 2010) ___________ O P IN IO N ___________ P E R CURIAM R o b e rt Crew petitions for review of a Board of Immigration Appeals ("BIA") o rd e r dismissing his appeal of an Immigration Judge's ("IJ") decision, which pretermitted h is application for cancellation of removal. We will deny the petition for review.

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Case: 10-1272 Document: 003110360995 Page: 2

Date Filed: 11/29/2010

C re w is a native and citizen of Jamaica who was admitted to the United States in 1 9 9 0 . The Department of Homeland Security issued a notice to appear in 2008 charging th a t Crew was subject to removal because he had remained in the United States longer th a n permitted. Crew conceded his removability and applied for cancellation of removal f o r nonpermanent residents pursuant to 8 U.S.C. § 1229b(b). At his hearing before the IJ, C re w also conceded that he was not eligible for cancellation of removal because he did n o t have the requisite qualifying relative, but he stated that he had applied for relief in o rd e r to challenge the statute in federal court. T h e IJ ruled that Crew is statutorily ineligible for cancellation of removal. The IJ e x p la in e d that, in addition to establishing that he has been physically present in the United S ta te s for a continuous period of not less than ten years, has been a person of good moral c h a ra c te r, and has not been convicted of certain offenses, Crew was required to show that h is removal would result in exceptional and extremely unusual hardship to his spouse, p a re n t, or child, who is a United States citizen or an alien lawfully admitted for permanent reside n ce . See 8 U.S.C. § 1229b(b)(1). The IJ acknowledged that Crew has a daughter, b u t stated that she could not serve as a qualifying relative because she is too old. The IJ e x p la in e d that, under 8 U.S.C. § 1101(b)(1), a "child" is defined as an unmarried person u n d e r 21 years of age. The IJ thus pretermitted Crew's application for cancellation of re m o v a l as a matter of law and ordered his removal to Jamaica. T h e BIA dismissed Crew's appeal. Noting that Crew did not allege any clear error

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Case: 10-1272 Document: 003110360995 Page: 3

Date Filed: 11/29/2010

in the IJ's factual findings, the BIA stated that the IJ correctly pretermitted Crew's ap p lica tio n for cancellation of removal due to the lack of a qualifying relative. The BIA a g re e d with the IJ that Crew's daughter, who was 35 years old on the date of the hearing, w a s not a "child" for purposes of cancellation of removal. Crew had argued on appeal th a t the law should be changed to allow a child of any age to be considered a "child" for p u rp o s e s of the hardship requirement, but the BIA noted that it could only interpret the la w s as written by Congress. This petition for review followed. W e have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the BIA's legal d e te rm in a tio n s de novo, subject to the principles of deference articulated in Chevron U .S .A . Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Kaplun v. A tto rne y General, 602 F.3d 260, 265 (3d Cir. 2010). C re w concedes in his brief that the existing case law supports the BIA's decision th a t a "child" for purposes of the hardship requirement for cancellation of removal is a p e rs o n under 21 years of age. See Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9 th Cir. 2002) (applying the definition of "child" under 8 U.S.C. § 1101(b)(1) to the h a rd s h ip requirement set forth in 8 U.S.C. § 1229b(b)(1)(D)); Matter of Hugo PortilloG u tierrez , 25 I. & N. Dec. 148 (BIA 2009) (applying § 1101(b)(1) to determine whether a s te p c h ild was a qualifying relative for purposes of § 1229b(b)(1)(D)). Crew asserts that th e law should be changed to include all children and contends that his daughter is c a p a b le of suffering hardship as result of her father's removal. Such an argument,

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Case: 10-1272 Document: 003110360995 Page: 4

Date Filed: 11/29/2010

h o w e v e r, is properly made to legislators, not to this Court.1 C re w also argues that his right to procedural due process was violated because his a p p lic a tio n for cancellation of removal was pretermitted without allowing him to present h is case and establish the hardship that would result from his removal.2 Crew, however, d o e s not have a cognizable procedural due process claim because there is no liberty in te re st at stake in an application for cancellation of removal, a discretionary form of re lie f . See United States v. Torres, 383 F.3d 92, 104-05 (3d Cir. 2004) (stating aliens do n o t have a due process interest in being considered for discretionary relief); Pinho v. I.N .S ., 249 F.3d 183, 189 (3d Cir. 2001) (holding change in eligibility criteria for s u s p e n s io n of deportation, a discretionary form of relief, did not implicate due process r ig h t s ). A c c o rd in g ly, we will deny the petition for review.

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The Government interprets Crew's argument as asserting a violation of his right to s u b s ta n tiv e due process. We do not read Crew's brief as advancing such an argument.
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Crew does not identify in his brief the hardship that would result from his removal. 4