Jose Iraheta v. Eric Holder, Jr.

Filing

OPINION filed : DISMISSED, decision not for publication pursuant to local rule 206. John M. Rogers, Authoring Circuit Judge; Jane Branstetter Stranch, Circuit Judge and Benita Y. Pearson, U.S. District Judge for the Northern District of Ohio, sitting by designation.

Case: 10-3885

Document: 006111481245

Filed: 10/30/2012

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1115n.06
No. 10-3885

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

DEBORAH S. HUNT, Clerk

JOSE FILADELFO IRAHETA,
aka Jose Filadelfo Iraheta Larreynaga
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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Oct 30, 2012

ON APPEAL FROM THE
BOARD OF IMMIGRATION
APPEALS

BEFORE: ROGERS and STRANCH, Circuit Judges, and PEARSON, District Judge.*
ROGERS, Circuit Judge. Jose Filadelfo Iraheta, a citizen of Honduras, petitions for review
of the denial of his application for cancellation of removal. Iraheta argues that the Government
failed to promptly notify him that he may be eligible for Temporary Protected Status (TPS). Iraheta
also argues that the Immigration Judge (IJ) and Board of Immigration Appeals (BIA) failed to
consider or give sufficient weight to certain factors in finding that his United States citizen son
would not suffer exceptional and extremely unusual hardship due to his removal.
Iraheta’s petition is without merit. First, while the Government did not promptly notify
Iraheta that he may be eligible for TPS, this error did not prejudice Iraheta because he still applied
for TPS and applying sooner would not have prevented the Government from still seeking, and even

*

The Honorable Benita Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.

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obtaining, a removal order. Second, we lack jurisdiction to review Iraheta’s argument that the IJ and
BIA erred in denying his cancellation of removal application.
I.
Iraheta entered the United States illegally in April 1993. AR at 244. A few months later,
Iraheta applied for asylum with the Immigration and Naturalization Service but his application was
denied. Id. at 324-28. Nevertheless, Iraheta remained in the United States for several years. Then,
in April 2008, the Department of Homeland Security (DHS) initiated removal proceedings against
Iraheta by issuing him a Notice to Appear before an IJ on the charge that he was present in the
United States without being admitted or paroled. Id. at 358. The Government, however, did not
notify Iraheta that he could apply for TPS because Honduras was designated a TPS country in 1999
due to the environmental disaster there caused by Hurricane Mitch.
In October 2008, Iraheta appeared before the IJ and conceded removability but announced
his intention to apply for cancellation of removal under 8 U.S.C. § 1229b. AR at 89-91. The IJ
continued Iraheta’s hearing but did not notify him that he may be eligible for TPS. Id. at 91-92.
In June 2009, Iraheta appeared before the IJ for his merits hearing and sought cancellation
of removal. AR at 98, 105-06. Iraheta argued that if he was removed from the country his 11-yearold United States citizen son would suffer hardship. Iraheta testified that, although the boy lived
with his mother, Iraheta saw him once a week and provided him with some financial support. Id.
at 110-11. Iraheta also testified that he provided his son with health insurance, which his son used
to obtain medication for his attention deficit disorder, oppositional defiant disorder, and asthma. Id.
at 111, 139-40. Iraheta then added that if he was sent back to Honduras he would not be able to find
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a job, may not be able to adequately treat his own health problems, and would only have limited
contact with his son. Id. at 112-15.
After the merits hearing, the IJ denied Iraheta’s application for cancellation of removal. AR
at 64-84. The IJ found that while Iraheta had been continuously present in the United States for at
least ten years, had a good moral character during that period, and had not been convicted of any
disqualifying offenses, he failed to establish that his removal would result in “exceptional and
extremely unusual hardship” to his son, as required by 8 U.S.C. § 1229b(b). The IJ acknowledged
that, as a result of Iraheta’s removal, Iraheta’s son would face some financial hardship, would have
less expansive health insurance through his mother’s employer, and would miss his father. Id. at 7781. But the IJ found that these difficulties “[did] not rise to the level of exceptional and extremely
unusual hardship, as is required to receive a grant of cancellation of removal.” Id. at 83.
Accordingly, the IJ denied Iraheta’s cancellation of removal application and “ordered that [he] be
removed from the United States and returned to the country of Honduras.” Id. at 84.
In July 2009, Iraheta appealed the IJ’s decision to the BIA. AR at 54. In his Notice of
Appeal, Iraheta challenged the IJ’s finding that he failed to establish the requisite hardship to his son
to qualify for cancellation of removal. Id. at 55.
According to Iraheta, in August 2009, while his appeal was pending before the BIA, he filed
an I-821 application for TPS with the United States Citizenship and Immigration Services (USCIS)
and his application remains pending.1

1

Iraheta also suggests that he may have already been granted TPS. However, the only
evidence in the record to support this claim is a photocopy of ten employment authorization cards
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In October 2009, Iraheta filed a brief in support of his appeal before the BIA. AR at 15-23.
In his brief, Iraheta argued “that the IJ committed a reversible error in evaluating, and omitting some,
facts from the record in reaching the conclusion that [Iraheta’s] qualifying relative would not suffer
the required hardship to warrant a grant of a Cancellation of Removal.” Id. at 22.
In June 2010, the BIA affirmed the IJ’s decision. AR at 3-4. While the BIA recognized that
Iraheta’s “removal would result in some hardship to his son,” it agreed with the IJ that “the level of
hardship falls short of the ‘exceptional and extremely unusual’ standard.” Id. at 3. Accordingly, the
BIA dismissed Iraheta’s appeal. Id. at 4.
Iraheta appealed the BIA’s decision to this court. Iraheta then moved to stay his removal
pending a decision on the merits. In response, the Government moved to dismiss Iraheta’s appeal
for lack of jurisdiction. A panel of this court denied both motions, holding that it had jurisdiction
over Iraheta’s appeal and could not conclude that Iraheta had a likelihood of success on appeal.
After the parties filed their briefs, Iraheta renewed his motion to stay his removal. A different panel
of this court granted Iraheta’s motion. The panel found that the Government failed to promptly
notify Iraheta that he may be eligible for TPS and, as a result, Iraheta faced the possibility of being
removed to Honduras while his TPS application remained pending. Accordingly, the panel stayed
Iraheta’s removal pending a decision on the merits.
II.

issued to Iraheta from March 17, 1998 through October 8, 2009. AR at 285. Since there are many
ways that an individual can obtain an employment authorization card, and Iraheta received his first
card before Honduras was even designated a TPS country, Iraheta has not established that he has
already been granted TPS.
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A.
As an initial matter, it appears that Iraheta is correct that the Government failed to promptly
notify him that he may be eligible for TPS. At the time the Government initiated removal
proceedings against Iraheta, Honduras was designated a TPS country due to the environmental
disaster there caused by Hurricane Mitch. Therefore, pursuant to the Immigration and Nationality
Act (INA), the Government was required to “promptly notify [Iraheta] of the temporary protected
status that may be available.” 8 U.S.C. § 1254a(a)(3)(B). The Government, however, concedes that
it did not give Iraheta this notice. Instead, the Government moved forward with removal proceedings
against Iraheta and the IJ ordered him removed without telling him that he may be eligible for TPS.
The Government now states that the IJ committed a “procedural error” by not providing Iraheta with
this notice.
While Iraheta argues that this error amounts to a violation of his due process rights, the
Government is correct that the error did not prejudice Iraheta. Shortly after the IJ rendered his
decision, Iraheta applied for TPS and his application remains pending to this day. Thus, Iraheta has
not been denied the opportunity to seek TPS. And even if Iraheta had been given proper notice, and
he applied for TPS immediately after being ordered to appear before the IJ, the Government still
could have moved forward with removal proceedings. This is because “[n]othing in the statute or
regulations governing TPS precludes the initiation of a removal proceeding while an application is
pending.” Erazo-Artica v. Ashcroft, 81 F. App’x 161, 163 (9th Cir. 2003). Likewise, an individual’s
pending application for TPS does not deprive an IJ of jurisdiction over removal proceedings. Id. at
162-63. In fact, the Fifth Circuit has recognized that, even if an individual has been granted TPS,
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the Government can still move forward with removal proceedings and even secure a removal order;
the Government just cannot execute that order until the individual’s TPS expires. See AlvaradoMolina v. I.N.S., No. 00-60579, 2002 WL 432384, at *4 (5th Cir. Feb. 25, 2002). In sum, while the
Government did not promptly notify Iraheta that he may be eligible for TPS, this error did not
prejudice Iraheta because he still applied for TPS and applying sooner would not have prevented the
Government from still seeking, and even obtaining, a removal order. Thus, Iraheta’s due process
claim is unavailing.
B.
Iraheta next argues that the IJ and BIA erred in denying his cancellation of removal
application for two reasons. First, Iraheta claims that the IJ and BIA failed to consider the dangers
that his son would face should he attempt to visit his father in Honduras, a designated TPS country.
Second, Iraheta claims that the IJ failed to give enough weight to the possibility that he may become
incapacitated or die if he does not obtain his medication in Honduras.
We lack jurisdiction to review the denial of Iraheta’s cancellation of removal application.
The INA clearly states that “no court shall have jurisdiction to review any judgment regarding the
granting of relief under section . . . 1229b,” the provision regarding cancellation of removal. 8
U.S.C. § 1252(a)(2)(B)(i). Indeed, our court has repeatedly recognized that the INA “specifically
divests jurisdiction of a court to review judgments regarding the granting of discretionary relief,
including the cancellation of removal.” Morales-Flores v. Holder, 328 F. App’x 987, 989 (6th Cir.
2009) (quoting Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th Cir. 2005)). Therefore, since

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Iraheta simply seeks review of the denial of his application for cancellation of removal, we lack
jurisdiction to review his claims.
Iraheta is correct that, under the INA, this court has jurisdiction to consider constitutional
claims or questions of law raised within a petition for review. Reyes v. Holder, 410 F. App’x 935,
938 (6th Cir. 2011) (citing 8 U.S.C. § 1252(a)(2)(D)). But, despite Iraheta’s claim to the contrary,
these exceptions to the statutory preclusion of review do not apply in this case. Here, Iraheta argues
that the IJ and BIA failed to consider or give sufficient weight to certain factors in finding that his
son would not suffer exceptional and extremely unusual hardship due to his removal. This argument
amounts to nothing more than a challenge to the agency’s discretionary and fact-finding exercises.
Such an objection to the agency’s consideration and weighing of facts is not within our jurisdiction
to review. See Reyes, 410 F. App’x at 938. As we stated recently in a cancellation of removal case:
“we lack jurisdiction over claims that the IJ failed to consider or put insufficient emphasis on
particular factors.” Ettienne v. Holder, 659 F.3d 513, 518 (6th Cir. 2011). Accordingly, we do not
have jurisdiction to review the denial of Iraheta’s request for cancellation of removal.
C.
In the end, Iraheta faces a properly entered removal order. However, according to Iraheta,
his TPS application remains pending before the USCIS. Although Iraheta is not entitled to relief
from this court, our decision does not prevent him from seeking an administrative stay of removal
pending a decision on his TPS application. Indeed, the Government acknowledges that, “[s]hould
immigration officers seek to remove [Iraheta] before USCIS adjudicates his application, he may seek
a stay of removal from DHS. See 8 C.F.R. §§ 241.6, 1241.6.”
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Case: 10-3885

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No. 10-3885
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III.
For the foregoing reasons, we dismiss Iraheta’s petition.

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