Fidencio Ximon-Rosales v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : The petition for review is DENIED, decision not for publication. Richard Allen Griffin, Circuit Judge; Jane Branstetter Stranch, Circuit Judge and George C. Steeh, U.S. District Judge.

Case: 14-3695

Document: 15-2

Filed: 03/05/2015

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0172n.06
No. 14-3695

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Mar 05, 2015
DEBORAH S. HUNT, Clerk

FIDENCIO XIMON-ROSALES,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS

BEFORE: GRIFFIN and STRANCH, Circuit Judges; STEEH, District Judge.*

PER CURIAM. Fidencio Ximon-Rosales, a citizen of Guatemala, petitions through
counsel for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal
from a decision of an immigration judge (IJ) denying his application for cancellation of removal
under 8 U.S.C. § 1229b(b).
Ximon-Rosales was born in Guatemala in 1983. He alleges that he has lived illegally in
this country since 1998.

When placed in removal proceedings in 2010, he applied for

cancellation, which the Attorney General may grant to an alien who has been continuously
present in this country for ten years and who can demonstrate that an exceptional and extremely
unusual hardship will be suffered by a qualifying relative if the alien is removed, among other
requirements. Id.

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The Honorable George Caram Steeh III, United States District Judge for the Eastern
District of Michigan, sitting by designation.

Case: 14-3695

Document: 15-2

Filed: 03/05/2015

Page: 2

No. 14-3695
Ximon-Rosales v. Holder
After holding a hearing, the IJ determined that Ximon-Rosales had not demonstrated
either his continual presence in this country for ten years or that his U.S. citizen son would suffer
exceptional hardship if Ximon-Rosales were removed. The BIA agreed and dismissed the
appeal. Before this court, Ximon-Rosales argues that he was denied due process when the IJ did
not grant a continuance to allow him to submit additional corroborating evidence, although the
record shows that Ximon-Rosales did not request a continuance. Respondent asks the court to
dismiss the appeal for lack of jurisdiction, because the due process argument regarding the lack
of corroborating evidence does not apply to the otherwise unreviewable determination that
petitioner’s son will not suffer exceptional hardship.
We lack jurisdiction to review a determination that the requisite hardship to a relative was
not established in an application for cancellation of removal; however, we have jurisdiction to
review questions of law. Ettienne v. Holder, 659 F.3d 513, 517-18 (6th Cir. 2011). Therefore,
Ximon-Rosales has framed his issue on appeal as that of a denial of due process. However, in
order to succeed on a claim of denial of due process, prejudice must be demonstrated. Warner v.
Ashcroft, 381 F.3d 534, 539 (6th Cir. 2004). Ximon-Rosales cannot show prejudice arising from
the denial of a continuance because he does not allege that he could produce or explain the lack
of corroborating evidence of exceptional hardship to his son. He simply made no argument that
his son would suffer anything other than the normal hardship from separation if he did not
accompany his father to Guatemala, or the typical inferior conditions if he did accompany him.
Therefore, this petition for review is denied.

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