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Mendez-Moranchel

July 29, 2003

MAURILIO MENDEZ-MORANCHEL, PETITIONER
v.
JOHN D. ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA; JAMES W. ZIGLAR, COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT



PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (No. A75-547-409)

Before: Nygaard, Ambro, and BECKER,*fn1 Circuit Judges.

The opinion of the court was delivered by: Nygaard, Circuit Judge

PRECEDENTIAL

Argued January 21, 2003

OPINION OF THE COURT

Maurilio Mendez-Moranchel, a nonresident deportable alien, challenges the government's denial of discretionary cancellation of deportation. The Board of Immigration Appeals found that Mendez met three of the four initial requirements for consideration of cancellation of deportation under 8 U.S.C. § 1229b. The issue before us is whether we can review the Board's decision that Mendez does not meet the fourth requirement—the hardship requirement. Because we hold that the issue of whether Mendez meets the hardship requirement is a discretionary decision by the Board of Immigration Appeals, we lack jurisdiction to review the decision and we will dismiss this action. See 8 U.S.C. § 1252(a)(2)(B).

I.

Our decision is based on the narrow question of whether we have jurisdiction to review the decision of the Immigration Law Judge and the Board that Mendez's U.S. citizen children would not suffer an extreme and unusual hardship as a result of Mendez's deportation. Mendez, a native and citizen of Mexico, has resided in the United States since 1982. In 1998, the INS issued Mendez a Notice to Appear, alleging he violated the Immigration and Nationalization Act by entering the United States without inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). Mendez admitted that he entered the country without inspection and was therefore subject to removal. Seeking to stay in the country, Mendez sought discretionary cancellation of removal under 8 U.S.C. § 1229b(b).

Mendez is the father of three children, all U.S. citizens, and resides with two of his children and their mother. Mendez claims that if the INS removes him, his family, particularly his oldest son, will suffer an exceptional and extremely unusual hardship. It is on this basis that Mendez seeks cancellation of removal. If removed, Mendez will have to take his family with him to Mexico, or be separated from them. He argues that either would result in hardship. Mendez provides the sole financial support for his sons. He has been away from Mexico for several years and testified that he will be unable to earn a living in Mexico. Therefore, he argues that he will neither be able to support his family in Mexico if they accompany him, nor be able to send them money to support them in the United States if they stay. In addition, Mendez argues that his oldest son's disability militates against his removal. Mendez's son apparently suffers from a disability that requires him to receive special language instruction. Because of this disability, his son does not speak English or Spanish well. Mendez argues that if he takes his son to Mexico, he will be denied an appropriate education.

The Immigration Judge found that Mendez met the first three requirements for cancellation of removal: residency, good moral character, and no conviction for disqualifying crime. 8 U.S.C. § 1229b(b)(1)(A)-(C). However, the Immigration Judge concluded that Mendez's removal would not result in an exceptional and extremely unusual hardship to his U.S. citizen children. Therefore, he denied Mendez's request for discretionary cancellation of removal. Mendez appealed to the Board, which affirmed the Immigration Judge's decision without an opinion.

II.

Mendez sought cancellation of removal under 8 U.S.C. § 1229b(b). Section 1229b(b) allows the Attorney General to cancel removal of an inadmissible or deportable alien if the alien meets four threshold requirements:

The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or deportable from the United States if the alien—

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately ...


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