Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals, (BIA No. A073-172-524), Immigration Judge: Honorable Eugene Pugliese.
The opinion of the court was delivered by: Rendell, Circuit Judge.
Before: RENDELL, JORDAN and GREENAWAY, JR., Circuit Judges.
Seemabahen Patel has filed a petition for review of the Board of Immigration Appeals' ("BIA") final order affirming the denial of her application for cancellation of removal. She has also requested a stay of the voluntary departure ordered by the Immigration Judge ("IJ"). At issue is whether we have jurisdiction over her petition for review, which challenges an adverse "hardship" determination, and whether, pursuant to 8 C.F.R. § 1240.26(i), we have the ability to stay her voluntary departure once she has filed a petition for review. We conclude that we lack the ability to stay her voluntary departure because, pursuant to that regulation, her voluntary departure terminated upon her filing of a petition for review. We also conclude that we lack jurisdiction to consider her challenge to the agency's discretionary determination as to her claim of hardship.
Patel, a citizen of India, entered the United States illegally in 1992. On April 29, 2006, Patel was issued a Notice to Appear and was charged with being subject to removal. Patel conceded removability, but applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b), claiming that her removal would cause her husband and her son, both United States citizens, "exceptional and extremely unusual hardship." During her hearing before the IJ, Patel presented evidence that her 11-year old son was a strong student and was engaged in local community activities. She urged that moving her family to India would deprive her son of educational opportunities that he could only have in the United States. Additionally, Patel contended that living in India would be a hardship to her husband, who suffers from a thyroid condition, which is managed with daily medication. After reviewing the evidence, the IJ concluded that any hardship created by the prospect of Patel's removal was not "exceptional or extremely unusual." App. 57, 62. In doing so, the IJ noted that Patel's son was a "good student" and a "bright boy," but that he was not a "budding genius" or "a prodigy of any sort who is now going to be deprived of an opportunity to develop [his] abilities" if required to live with his mother in India. App. 9-10. Consequently, the IJ denied Patel's application for cancellation of removal and granted her voluntary departure. The IJ's decision was affirmed by the BIA without opinion. The BIA's final order included a warning, as required by 8 C.F.R. § 1240.26(i), that:
if, prior to departing the United States, the respondent filed any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect.
On appeal, Patel challenges the IJ's hardship determination, contends that the IJ was unfairly predisposed to find against her,*fn1 and seeks a stay of her voluntary departure period.
I. Exceptional and Extremely Unusual Hardship
An alien who is removable from the United States is eligible for ...