Roberto Boteo-Portillo v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A094-433-470 Copies to all parties and the district court/agency. [999704498].. [15-1354]

Appeal: 15-1354

Doc: 30

Filed: 11/23/2015

Pg: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1354

ROBERTO CARLOS BOTEO-PORTILLO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

November 9, 2015

Decided:

November 23, 2015

Before WILKINSON, DUNCAN, and FLOYD, Circuit Judges.

Petition dismissed in part, denied in part by unpublished per
curiam opinion.

Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner.
Benjamin C. Mizer, Principal Deputy
Assistant
Attorney
General,
Blair
T.
O’Connor,
Assistant
Director, Briena L. Strippoli, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-1354

Doc: 30

Filed: 11/23/2015

Pg: 2 of 3

PER CURIAM:
Roberto Carlos Boteo-Portillo, a native and citizen of El
Salvador,

petitions

Immigration

for

Appeals

review

(Board)

of

an

order

dismissing

his

of

the

appeal

Board
from

of
the

immigration judge’s denial of his application for cancellation
of removal.

For the reasons set forth below, we dismiss the

petition for review in part and deny the petition in part.
Under 8 U.S.C. § 1252(a)(2)(B)(i) (2012), entitled “Denials
of discretionary relief,” “no court shall have jurisdiction to
review

any

section

judgment

.

.

.

regarding

1229b,”

cancellation of removal.
found,

and

the

Board

the

which

granting
is

the

of

relief

section

under

governing

In this case, the immigration judge

explicitly

agreed,

that

Boteo-Portillo

failed to meet his burden of establishing that his three United
States citizen children would suffer exceptional and extremely
unusual hardship if he is returned to El Salvador.

We conclude

that this determination is clearly discretionary in nature, and
we

therefore

finding.
2014)

lack

jurisdiction

to

review

challenges

to

this

See Sattani v. Holder, 749 F.3d 368, 372 (5th Cir.

(finding

no

jurisdiction

to

review

determination

that

aliens failed to demonstrate requisite hardship to their U.S.
citizen son); Obioha v. Gonzales, 431 F.3d 400, 405 (4th Cir.
2005)

(“It

is

quite

clear

that

the

gatekeeper

provision

[of

§ 1252(a)(2)(B)(i)] bars our jurisdiction to review a decision
2

Appeal: 15-1354

Doc: 30

Filed: 11/23/2015

Pg: 3 of 3

of the [Board] to actually deny a petition for cancellation of
removal.”);

Okpa

v.

INS,

266

F.3d

313,

317

(4th

Cir.

2001)

(concluding, under transitional rules, that issue of hardship is
committed to agency discretion and is not subject to appellate
review).

We therefore dismiss the petition for review in part.

We

retain

jurisdiction

to

consider

Boteo-Portillo’s

argument that issues with the video teleconferencing feed during
his immigration hearing violated his rights to due process.
8

U.S.C.

limiting

§

1252(a)(2)(D)

judicial

(2012)

review

“shall

(stating
be

that

construed

no
as

See

provision
precluding

review of constitutional claims or questions of law raised upon
a

petition

for

appeals”).

review
However,

filed

with

because

an

appropriate

Boteo-Portillo

court
failed

of
to

demonstrate the requisite prejudice before the Board, see Rusu
v. INS, 296 F.3d 316, 320-22 (4th Cir. 2002), we deny this
portion of the petition for review for the reasons stated by the
Board.

See In re: Boteo-Portillo (B.I.A. Mar. 19, 2015).

We dispense with oral argument because the facts and legal
contentions

are

adequately

presented

in

the

materials

before

this court and argument would not aid the decisional process.

PETITION DISMISSED IN PART;
DENIED IN PART

3