Faustino Hernandez-Lara v. Eric Holder, Jr.

Filing

OPINION filed : Petition for review is DENIED, decision not for publication. Karen Nelson Moore, Circuit Judge; John M. Rogers, Authoring Circuit Judge and John T. Nixon, U.S. District Judge., MDT

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NOT RECOMMENDED FOR PUBLICATION
File Name: 14a0292n.06
No. 13-3952

UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
FAUSTINO HERNANDEZ-LARA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

BEFORE:

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FILED
Apr 21, 2014
DEBORAH S. HUNT, Clerk
ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

MOORE, ROGERS, Circuit Judges; NIXON, District Judge.*

ROGERS, Circuit Judge. Faustino Hernandez-Lara petitions to review a decision from
the Board of Immigration Appeals denying his application for cancellation of removal. The
Board agreed with the immigration judge that Hernandez’s removal to Mexico would not result
in the requisite level of “exceptional and extremely unusual” hardship to his United Statescitizen child to warrant cancellation of removal. On appeal, Hernandez argues that the Board’s
discretionary determination denying him relief violates his daughter’s constitutional right to
equal protection of the laws. In addition, Hernandez challenges the immigration judge’s finding
that the evidence presented was insufficient to demonstrate that Hernandez was continually
present in the United States for ten years, making him ineligible for cancellation of removal. In
its decision denying Hernandez relief, the Board did not rely on the immigration judge’s
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The Honorable John T. Nixon, United States District Judge for the Middle District of Tennessee, sitting by
designation.

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conclusions regarding the “continuous presence” requirement, focusing instead on his failure to
establish exceptional hardship to his daughter. Because this court lacks jurisdiction to review the
Board’s discretionary determination under 8 U.S.C. § 1229b, and because Hernandez has failed
to articulate a cognizable constitutional claim on behalf of his daughter, we deny the petition for
review.
Hernandez is a native and citizen of Mexico. At some point, he entered the United States
illegally with the mother of his United States-citizen child, AHF, who is now six years old. In
2010, the Department of Homeland Security initiated removal proceedings against Hernandez
under § 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i), as
an alien present in the United States without being admitted or paroled. AR 291. Hernandez
conceded removability, and filed an application for cancellation of removal with the immigration
court, pursuant to § 1229b(b)(1) & (d)(1). To be eligible for cancellation of removal, Hernandez
was required to show that (1) he had been physically present in the United States for at least ten
years immediately preceding his application; (2) that he had been a person of good moral
character during that period; (3) that he had not been convicted of certain enumerated criminal
offenses; and (4) that his removal would result in exceptional and extremely unusual hardship to
his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for
permanent residence. 8 U.S.C. § 1229b(b)(1)(A)-(D).
The immigration judge denied Hernandez’s application for cancellation of removal,
concluding that Hernandez had not established that his removal would cause his United Statescitizen daughter the “exceptional and extremely unusual hardship” required to grant him relief.
8 U.S.C. § 1229b(b)(1)(D). In making this determination, the immigration judge weighed two
scenarios he found equally plausible: one in which AHF would return to Mexico with her father

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(and possibly her mother), and one in which AHF would remain in the United States (likely with
her mother).
If AHF returned to Mexico with her father, she would be able to reside, at least for a
time, with her paternal grandmother, and while there would be some financial hardship and a
reduction in the standard of living, the immigration judge found that “[t]here is nothing to
suggest…that [AHF’s parents], who are both employable, would be unable to meet the
necessities of their daughter.” The court concluded that “it is clear [AHF] would not be deprived
of education in Mexico,” and that the possibility of AHF’s exposure to “generalized violence in
Mexico” is no greater than that of any other citizen. Finally, while AHF had benefitted from
treatment for language problems until she was three years old, Hernandez admitted he believes
“that she now falls within normal limits for speech and development,” and the court determined
“that any concerns about special education needs in the future are…speculative.”
If AHF were to remain in the United States, presumably with her employed mother, the
immigration judge determined that AHF “would be able to continue to receive Government-paid
health insurance as well as the prospect of additional support in the form of food stamps and
housing, if needed and the family qualified.” Therefore, any economic hardship attributable to
her father’s departure and income reduction “would not be extreme.” While Hernandez’s return
to Mexico “would involve some level of emotional hardship in that she would not have contact
with respondent and would not benefit from his parental guidance,” the immigration judge found
that “considering all factors . . . these fall within the range of normal hardship that would
typically be experienced in a situation where an alien departs the United States and has close
family members in this country.” The hardship to AHF, the immigration judge concluded,
would therefore not be extreme or unusual. The immigration judge also found that Hernandez’s

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testimony and evidence about the precise date on which he entered the United States was
“vague” and “raise[d] doubt as to the accuracy and reliability of the respondent’s claimed entry
date.”
Hernandez appealed the decision of the immigration judge.

The Board affirmed,

agreeing with the immigration judge’s analysis and conclusion that Hernandez had not met his
burden of proving that his removal would result in exceptional and extremely unusual hardship
to his daughter. The Board did not reach the alternative ground of the immigration judge’s
decision that there was not sufficient evidence to prove that Hernandez had been continuously
present in the United States for ten years. On appeal to this court, Hernandez argues that the
immigration judge’s (and subsequently the Board’s) decision applying § 1229b(b)(1) violates
AHF’s right to equal protection.
AHF’s constitutional rights are not implicated by the Board’s discretionary determination
that Hernandez failed to establish the requisite statutory “exceptional and extremely unusual
hardship to a qualifying relative.”

Although the court lacks jurisdiction to review the

determination of whether a petitioner has met this burden as a matter of fact, see Ettienne v.
Holder, 659 F.3d 513, 517 (6th Cir. 2011), we do have jurisdiction to review “constitutional
claims and questions of law.” 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D). Hernandez’s claim that the
government’s decision to remove him to Mexico will violate AHF’s equal protection rights is
within the purview of this court’s jurisdiction. Hernandez argues that the implementation of the
“exceptional and extremely unusual hardship” requirement violates AHF’s constitutional rights
because it adversely affects only those members of the class of United States-citizen children like
AHF whose parents are subject to removal from this country. The petitioner’s argument in this
regard is not entirely clear as to how the Board’s application of the Immigration and Nationality

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Act violates the Equal Protection Clause. In any event, the law on this point is settled: a United
States-citizen child’s constitutional rights are not implicated by the government’s otherwise valid
decision to deport that child’s parents. Newton v. I.N.S., 736 F.2d 336, 343 (6th Cir. 1984); see
also Payne-Barahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007), Oforji v. Ashcroft, 354 F.3d
609, 618 (7th Cir. 2003), Urbano de Malaluan v. I.N.S., 577 F.2d 589, 594 (9th Cir. 1978),
Perdido v. I.N.S., 420 F.2d 1179, 1181 (5th Cir. 1969). As we noted in Newton, “Were we to
hold otherwise, we would create a substantial loophole in the immigration laws, allowing all
deportable aliens to remain in this country if they bear children here.” Newton, 736 F.2d at 343
(quoting Ayala-Flores v. I.N.S., 662 F.2d 444, 446 (6th Cir. 1981)).
Hernandez has stated no valid constitutional claim, and this court otherwise lacks
jurisdiction to review the agency’s determination that Hernandez’s removal would not result in
the requisite level of hardship to AHF under § 1229b(b)(1)(D). There is no need to address
Hernandez’s alternative argument that the immigration judge erred with respect to whether
Hernandez had been continuously present in the United States for the past ten years. In any
event, the Board did not rely on that ground.
Accordingly, Hernandez’s petition for review is DENIED.

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