Nora Ettienne v. Eric Holder, Jr.
OPINION and JUDGMENT filed: Petition for Review is DISMISSED for lack of jurisdiction, decision for publication pursuant to local rule 206. John M. Rogers (AUTHORING), David W. McKeague, Bernice B. Donald, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0280p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ERIC H. HOLDER, JR.,
On Petition for Review of an Order of the
Board of Immigration Appeals.
NORA ADELE ETTIENNE,
No. A029 111 686.
Argued: July 19, 2011
Decided and Filed: October 5, 2011
Before: ROGERS, McKEAGUE, and DONALD, Circuit Judges.*
ARGUED: Scott E. Bratton, MARGARET WONG & ASSOCIATES CO., LPA,
Cleveland, Ohio, for Petitioner. Papu Sandhu, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Margaret W. Wong,
MARGARET WONG & ASSOCIATES CO., LPA, Cleveland, Ohio, for Petitioner.
Papu Sandhu, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
The Honorable Bernice Bouie Donald, United States District Judge for the Western District of
Tennessee, sat by designation at the time of argument. Judge Donald became a member of this court on
September 10, 2011.
Ettienne v. Holder
ROGERS, Circuit Judge. Nora Ettienne, a citizen of Trinidad, petitions for
review of the Board of Immigration Appeals’ denial of her application for cancellation
of removal under 8 U.S.C. § 1229b. The Board, adopting the reasoning of the
immigration judge, denied Ettienne’s petition on the basis that she had not demonstrated
that her United States citizen husband and children would suffer exceptional and
extremely unusual hardship as a result of her removal. Although Ettienne’s case is very
sympathetic, the explicit preclusion of review of cancellation denials applies
notwithstanding her argument that the Board failed to follow its own precedent in this
case. Her petition must therefore be dismissed for lack of jurisdiction.
Ettienne entered the United States for a track-and-field competition in 1987,
when she was 16 years old. Ettienne remained beyond the expiration of her visa, with
the goal of winning a college scholarship for track and field. A United States track
coach acted as her caretaker. Ettienne enrolled in high school in Brooklyn and remained
an extremely competitive athlete.
Before college, Ettienne was involved in a marriage fraud scheme in which
Thomas Bumpus, a United States citizen, received money to claim to be married to her.
A marriage ceremony occurred in February of 1989, but another woman had represented
herself to be Ettienne. Ettienne and Bumpus only met later, after the spousal petition for
permanent residency had been filed. When Ettienne and Bumpus went to the INS offices
for the interview assessing the bona fides of the marriage, both ended up signing
affidavits admitting that the marriage was a sham entered into only to procure a green
card for Ettienne. Ettienne contends that her coach, who she claims was domineering
and abusive, arranged the fraudulent marriage without her knowledge, and that she only
learned the true nature of her petition when she arrived in Philadelphia for the green card
Ettienne v. Holder
Although Ettienne signed the affidavit admitting to marriage fraud in 1990, no
order of removal was issued, and there is no evidence that she had any interaction with
immigration authorities for the next decade. Ettienne earned a full athletic scholarship
to Michigan State University, where she enrolled in 1991. She participated in the track
team and majored in human resources, although she fell three classes short of graduation.
Through the track team, Ettienne met Jarion Bradley, a United States citizen. The two
married in 1999 and have two sons. Ettienne and Bradley work full-time and own a
home. Their sons are strong students and are active in sports and other extracurricular
Ettienne came back onto the immigration authorities’ radar sometime around
2001. This may have happened as a result of her efforts to procure permanent residency
through her marriage to Bradley. Ettienne filed for adjustment of status based on
marriage to a United States citizen in April of 2001, but the request was denied because
of Ettienne’s involvement in the marriage fraud. Under 8 U.S.C. § 1154(c), a person
who has previously attempted to gain permanent residency through a fraudulent marriage
is barred from procuring an immigrant visa, regardless of other eligibility. Therefore,
even though the validity of Bradley and Ettienne’s marriage is not questioned, the
marriage cannot provide a basis for Ettienne to achieve permanent residency.
On December 6, 2001, INS issued Ettienne a Notice to Appear, alleging that she
was removable for being in the United States without permission, in violation of
8 U.S.C. § 1227(a)(1)(B). The Government later added another ground of removability:
participation in marriage fraud, in violation of 8 U.S.C. § 1227(a)(1)(G)(ii). Ettienne
contested the marriage fraud allegation, but conceded removability based on her
unauthorized presence. She sought relief in two forms: a second spousal petition and a
request for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
At a hearing before an immigration judge (“IJ”), Ettienne presented her own
testimony along with that of her husband, sons, mother-in-law, and a family
psychologist. The testimony fell into two categories: (1) testimony explaining Ettienne’s
lack of involvement in the fraudulent marriage and (2) testimony as to the extreme effect
Ettienne v. Holder
Ettienne’s deportation would have on the family. Her husband testified that he would
not be able to afford their mortgage or student loan payments were he to lose Ettienne’s
income. He also stated that he was suffering from severe anxiety at the thought of losing
his wife, and that he could not imagine life going on were they separated. Bradley also
testified that there would be no opportunities for Bradley or the boys in Trinidad.
Bradley, a civil engineer, testified that because he is not used to working in the metric
system or under other countries’ design standards, he doubted he would be able to find
engineering work in Trinidad. He also testified that the schools in Trinidad would be
nowhere near the quality of those in the United States, and that his sons would miss out
on a great many opportunities were the entire family to relocate.
The psychologist, Dr. Hand, also offered testimony about the likely effects of
Ettienne’s removal on her husband and children. Hand testified that Bradley was already
suffering from severe, debilitating anxiety that would only worsen upon Ettienne’s
removal. He also testified that he believed the older son was clinically depressed as a
result of the stress of his mother’s potential departure and exhibited signs of obsessive
behavior resulting from anxiety. The psychologist further testified that the younger son
had regressed to early childhood behaviors the parents had previously believed he had
outgrown. Dr. Hand concluded that the regression was a clinically significant reaction
to extreme stress. He further testified that if Ettienne were to depart, the boys would
develop significant trust issues that would affect not only their personal relationships but
also their perception of the fairness and legitimacy of institutions and authority figures.
Dr. Hand testified that these effects were more severe than he would expect even under
such difficult circumstances. Dr. Hand stated that the effects of the entire family’s
relocating abroad would be hard to predict, but that a relocation would likely be very
damaging if things did not go well in the new country.
The IJ found that Ettienne had participated in marriage fraud. The IJ went on to
assess whether Ettienne qualified for cancellation of removal, which allows an otherwise
removable alien to remain in the United States because her departure would effect an
exceptional and extremely unusual hardship on a citizen parent, spouse, or child. The
Ettienne v. Holder
IJ found that Ettienne met the first three statutory requirements for cancellation of
removal: at least ten years of continuous presence in the United States, good moral
character for the statutory period, and lack of certain criminal convictions, 8 U.S.C.
§ 1229b(b)(1)(A)-(C). However, the judge determined that Ettienne had not satisfied the
final requirement—showing that her removal would cause Bradley or the children to
suffer more hardship than would normally be expected under the circumstances, 8 U.S.C.
§ 1229b(b)(1)(D). Because Ettienne could not make the required hardship showing, the
IJ denied the petition. The IJ noted that even if Ettienne had demonstrated exceptional
and extremely unusual hardship, the IJ would still deny the petition in her discretion due
to Ettienne’s involvement in marriage fraud.
Ettienne appealed to the BIA, contesting the IJ’s marriage fraud and hardship
determinations. The BIA declined to address the marriage fraud finding, since Ettienne
had conceded removability for being in the country without authorization. The BIA
affirmed the IJ’s finding that Ettienne had not demonstrated “exceptional and extremely
unusual hardship” to Bradley or their children.
Ettienne appealed to this court, and the Government moved for dismissal based
on lack of jurisdiction, citing the statutory bar on review of cancellation denials, 8
U.S.C. § 1252(a)(2)(B)(i). On October 12, 2010, a panel denied the Government’s
motion to dismiss on the grounds that Ettienne had claimed that the BIA failed to follow
its own precedent in making the hardship determination. In spite of this ruling, the
Government maintains, correctly, that Ettienne’s appeal should be dismissed for lack of
This court may revisit the issue of jurisdiction even after a motions panel has
denied a motion to dismiss, see In re LWD, Inc., 335 F. App’x 523, 526 (6th Cir. 2009),
and such a course is appropriate here to avoid erroneously exercising jurisdiction over
a statutorily barred claim.
Ettienne v. Holder
Ettienne argues that she is not subject to the statutory prohibition on review of
the BIA’s denial of cancellation of removal, because the BIA failed to consider all the
hardship factors in their totality, as required by the BIA’s precedential decision in In re
Gonzalez Recinas, 23 I. & N. Dec. 467, 473 (BIA 2002). This court has interpreted
§ 1252(a)(2)(B)(i) to permit review of a BIA decision in which the Board allegedly
failed to follow its own precedent, Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th
Cir. 2008), but Ettienne’s case is not controlled by that case. This court reviewed
Aburto-Rocha’s claim by asking whether the BIA had correctly distilled the standard of
review embodied by the cases Aburto-Rocha alleged the agency had failed to follow.
Id. at 504. In contrast, Ettienne argues that the IJ ignored the totality requirement by
failing to specifically identify every hardship factor that Ettienne’s family would face
upon her removal. This is a challenge to the weighing of the evidence that, if accepted,
would effectively eliminate the jurisdictional bar on review of denials of cancellation of
removal. Aburto-Rocha did not purport to invalidate the statutory bar, and we do not
read it to do so.
The preclusion of review of cancellation denials does not extend to “questions
of law” under 8 U.S.C. § 1252(a)(2)(D), or to “nondiscretionary issues” under a
theoretically distinct but largely coterminous exception to the preclusion of review
described in Aburto-Rocha, 535 F.3d at 503.1 To determine whether a cancellation-ofremoval claim falls within such an exception to the jurisdictional bar, the court must
consider what type of analysis would be necessary to evaluate the claim on its merits.
Where our decision requires resolution of a contested interpretation of language in the
statute or the regulations, the appeal will fall within our jurisdiction. In Garcia v.
Holder, 638 F.3d 511 (6th Cir. 2011), for example, the petitioner argued that his prior
state conviction did not place him under the INA provision making permanent residents
convicted of aggravated felonies ineligible for cancellation of removal, 8 U.S.C.
After finding jurisdiction over the claim in Aburto-Rocha, the court ruled in favor of the
Government, 535 F.3d at 505. The Government was therefore unable to seek further review of the case’s
jurisdictional finding. The jurisdictional analysis thus has some of the attributes of dicta. As Judge Leval
has explained, a “weakness of law made through dicta is that there is no available correction mechanism.
No appeal may be taken from the assertion of an erroneous legal rule in dictum.” Pierre N. Leval, Judging
Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1262 (2006).
Ettienne v. Holder
§ 1229b(a)(3). This court readily recognized its jurisdiction to consider the question of
“whether Garcia’s state drug conviction amounts to an aggravated felony under the
INA,” which was answered by analyzing the Act, state criminal statutes, and federal case
law interpreting the meaning of the term “felony.” Id. at 514.
Similarly, claims that require an evaluation of whether the BIA adhered to legal
standards or rules of decision articulated in its published precedent can raise
nondiscretionary “questions of law” that are reviewable by the courts of appeals. For
example, the Ninth Circuit exercised jurisdiction over an appeal in which the IJ had
erroneously stated that the petitioners were required to demonstrate that their removal
would result in an “unconscionable” hardship to their citizen children. Figueroa v.
Mukasey, 543 F.3d 487, 496 (9th Cir. 2008). The “unconscionable” requirement
imposed by the IJ was in clear conflict with a precedential BIA decision that stated: “we
do not find that an ‘unconscionable’ standard is an appropriate one to apply in evaluating
a respondent’s eligibility for cancellation of removal.” In re Monreal-Aguinaga, 23 I.
& N. Dec. 56, 61 (BIA 2001). Notably, the court was able to determine that the IJ had
misconstrued BIA precedent without evaluating the specific hardship factors alleged by
This circuit recently acknowledged its jurisdiction over such claims in PerezRoblero v. Holder, No. 09-3982, 2011 WL 2837433 (6th Cir. July 15, 2011). PerezRoblero argued that the IJ had erroneously read BIA precedent as establishing two
specific rules for evaluating hardship claims—first, that a citizen relative’s asthma could
not serve as the basis for a hardship determination and second, that the availability of
any education in the country of removal, even if minimal, would preclude a hardship
finding. Id. at *6. To evaluate the petitioner’s claim of error, the court analyzed the IJ’s
opinion and the relevant precedent to determine whether the IJ had in fact extracted the
alleged rules from the precedent. Id. at *7-8. This analysis did not require the court to
Ettienne v. Holder
consider whether the IJ had properly considered the medical and educational hardship
factors in Perez-Roblero’s case.2
In contrast, this court lacks jurisdiction over claims that can be evaluated only
by engaging in head-to-head comparisons between the facts of the petitioner’s case and
those of precedential decisions. The BIA will sometimes reach opposite conclusions in
cases that have many factual similarities, but this does not reflect a failure of the agency
to follow its own precedent. Rather, the different outcomes are an expected result of the
discretionary weighing required to make individualized determinations. Review that
required a tallying of hardships would amount to second-guessing the agency’s weighing
of factors, an endeavor that we have repeatedly recognized as beyond our jurisdiction.
In the asylum context, for example, this court recognized that it lacked jurisdiction to
review the BIA’s untimeliness ruling because the Petitioner’s claim relied on contesting
factual determinations “rather than on statutory construction or a constitutional claim.”
Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006); see also Alshareqi v.
Mukasey, 295 F. App’x 2, 6 (6th Cir. 2008) (factual determinations not for review in the
cancellation context). For the same reason, we lack jurisdiction over claims that the IJ
failed to consider or put insufficient emphasis on particular factors in the Petitioner’s
case. See Perez-Roblero, No. 09-3982, 2011 WL 2837433, at *6; Farraj v. Holder, 316
F. App’x 398, 400 (6th Cir. 2009).
Ettienne has styled her appeal as a claim that the IJ and BIA failed to weigh the
hardship factors in the aggregate, as required by In re Gonzalez-Recinas, 23 I. & N. Dec.
467, 472 (2002). Although difficult to imagine, such a claim could conceptually fall
within our jurisdiction. If the IJ had identified some standard for evaluating the hardship
factors other than cumulative weighing, we could review the argument. But Ettienne
does not argue that the IJ misconstrued the standard for reviewing hardship claims. Nor
could she credibly do so, as the IJ twice articulated the proper standard. Without a claim
Although the opinion in Aburto-Rocha discussed some of the particular hardship factors in the
petitioner’s case, it disposed of the claim not on the basis of factual similarity to any BIA precedent, but
rather on the grounds that the BIA had correctly interpreted its precedent in deriving the legal standard
under which to analyze Aburto-Rocha’s case. 535 F.3d at 504.
Ettienne v. Holder
that the IJ misunderstood the standard for evaluating hardship, Ettienne is left with the
argument that the IJ failed to consider certain facts specific to her case. See Reyes v.
Holder, 410 F. App’x 935, 938 (6th Cir. 2011); Farraj, 316 F. App’x at 400. As
explained, such objections to the agency’s weighing of the facts is not within our
jurisdiction to review, and the petition must be dismissed.
The petition is dismissed for lack of jurisdiction.
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