Summary
Immigration law; cancellation of removal; exceptional and extremely unusual hardship; due process; substitution of immigration judge. The Eighth Circuit held that substitution of an immigration judge who stated she had familiarized herself with the record did not violate due process, as there is no right to a specific IJ. The court further held that it lacked jurisdiction to review the discretionary determination that the petitioner failed to establish that his removal would cause exceptional and extremely unusual hardship to his qualifying relatives.
Topics
Practice areas
Questions Presented
- Whether the substitution of IJ Paul for IJ Brown violated Avendano-Elvira's Fifth Amendment due process rights.
- Whether the BIA erred in affirming the IJ's determination that Avendano-Elvira failed to show exceptional and extremely unusual hardship (jurisdictional issue).
Holdings
- The substitution did not violate due process because the IJ complied with 8 C.F.R. § 1240.1(b) by stating she had familiarized herself with the record, and Avendano-Elvira has no right to a particular IJ.
- The court lacks jurisdiction to review the BIA's discretionary finding that Avendano-Elvira did not establish exceptional and extremely unusual hardship to a qualifying relative.
Key quotations
“If an immigration judge becomes unavailable to complete his or her duties, another immigration judge may be assigned to complete the case. The new immigration judge shall familiarize himself or herself with the record in the case and shall state for the record that he or she has done so.” (at 4)
“Avendano-Elvira fails to offer evidence that IJ Paul was not fair and impartial or that IJ Paul had not familiarized herself with the record in this case.” (at 4-5)
“Such a finding that the evidence failed to prove that his removal would cause an exceptional and extremely unusual hardship . . . is precisely the discretionary determination that Congress shielded from [this] [Court’s] review.” (at 5)
Factual background
Avendano-Elvira, a native and citizen of Mexico, entered the United States in 2004 without being lawfully admitted. He lived in Missouri with his wife and two children who have speech disabilities, and was the sole financial provider. In 2015, DHS charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i). He conceded removability and applied for cancellation of removal, arguing that removal would cause exceptional and extremely unusual hardship to his qualifying relatives (his children). After a merits hearing before IJ Denise Brown, the case was reassigned to IJ Nancy Paul, who eventually denied the application. The BIA affirmed.
Procedural history
The immigration judge (IJ) denied Avendano-Elvira's application for cancellation of removal. The BIA affirmed the IJ's decision. Avendano-Elvira then petitioned the Eighth Circuit for review.