Summary
The United States Court of Appeals for the Fifth Circuit reviews a petition challenging the Board of Immigration Appeals' denials of cancellation of removal, voluntary departure, and a motion for continuance. The court affirms the denial of cancellation of removal, dismisses the voluntary departure claim for lack of jurisdiction, and denies the continuance challenge as not an abuse of discretion. A concurring opinion argues that the court should find it lacks jurisdiction to review continuance determinations entirely.
Topics
Practice areas
Questions Presented
- Whether the BIA erred in determining that Cuenca-Arroyo failed to establish the exceptional and extremely unusual hardship required for cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D).
- Whether the Fifth Circuit had jurisdiction to review the BIA's discretionary denial of post-conclusion voluntary departure and, if so, whether the BIA committed reviewable legal error by referring to discrepancies in Cuenca-Arroyo's tax filings as tax fraud.
- Whether the BIA abused its discretion in affirming the immigration judge's denial of Cuenca-Arroyo's motion for a continuance.
Holdings
- The court upheld the BIA's determination that Cuenca-Arroyo failed to establish that his removal would cause his United States-citizen son hardship substantially different from or beyond that ordinarily expected from the deportation of a close family member.
- The court dismissed the challenge to the denial of voluntary departure because 8 U.S.C. § 1252(a)(2)(B)(i) generally bars review of discretionary decisions regarding voluntary departure, and Cuenca-Arroyo did not identify a reviewable constitutional claim or question of law.
- Assuming that the court had jurisdiction to review the continuance decision, the BIA did not abuse its discretion in affirming the immigration judge's denial of Cuenca-Arroyo's motion for a continuance.
Key quotations
“Because we agree with the BIA’s cancellation-of-removal decision, do not have jurisdiction to review its voluntary-departure decision, and determine that the BIA did not abuse its discretion in affirming the immigration judge’s continuance decision, Cuenca-Arroyo’s petition is DENIED in part and DISMISSED in part.” (123 F.4th 781)
“As unfortunate as the emotional, psychological, medical, and financial hardships that Cuenca-Arroyo identifies may be, they are also, as the BIA correctly noted, “common and normal” consequences of an ordinary removal.” (123 F.4th 785)
“Thus, we cannot say that the BIA abused its discretion in affirming the immigration judge’s denial of Cuenca-Arroyo’s motion for a continuance.” (123 F.4th 788)
Factual background
Cuenca-Arroyo, a native and citizen of Mexico, was brought to the United States at age eight but was never admitted or paroled. He has a United States-citizen minor son who primarily lives with the child's mother but spends weekends and substantial weekday time with Cuenca-Arroyo, who assists with his care and schoolwork. During removal proceedings, Cuenca-Arroyo sought cancellation of removal based on hardship to his son and moved for a continuance because his parents were pursuing adjustment of status that might make them additional qualifying relatives.
Procedural history
The Department of Homeland Security initiated removal proceedings against Cuenca-Arroyo, who conceded inadmissibility and was found removable by an immigration judge. The immigration judge denied his motion for a continuance and his applications for cancellation of removal and post-conclusion voluntary departure. The Board of Immigration Appeals affirmed all three decisions, and the Fifth Circuit denied the petition in part and dismissed it in part.