Summary
The First Circuit dismissed a petition for review of the BIA's denial of cancellation of removal under INA § 240A(b)(1), holding that the court lacked jurisdiction under 8 U.S.C. §§ 1252(a)(2)(B)(i) and (D). The petitioner's challenges—attacking the agency's hardship determination and discretionary denial based on pending child molestation charges and an adverse inference from his Fifth Amendment invocation—were factual disputes, not colorable constitutional claims or questions of law. The court reaffirmed that discretionary relief does not create a protected liberty interest for due process purposes, and that admission of police reports, drawing adverse inferences, or denying a continuance did not violate due process absent prejudice.
Topics
Practice areas
Questions Presented
- Whether the court has jurisdiction to review the BIA's denial of cancellation of removal under 8 U.S.C. § 1252(a)(2)(B)(i) and (D).
- Whether the BIA's hardship determination was reviewable as a constitutional claim or question of law.
- Whether the IJ's consideration of the police report, adverse inference from Fifth Amendment invocation, and denial of a continuance violated due process.
Holdings
- The court lacks jurisdiction because the petition raises only factual challenges or non-colorable legal and constitutional claims.
Key quotations
“We dismiss Rivera's petition for lack of jurisdiction over his attacks on the BIA's decision.” (148)
“Courts are statutorily barred from reviewing 'any judgment regarding the granting of relief under section . . . 1229b,' the cancellation of removal provision, unless the petition raises 'constitutional claims or questions of law.'” (153)
“No colorable legal or constitutional claim is stated.” (153)
“Accordingly, there is no jurisdiction over these claims.” (157)
Factual background
Rivera last entered the United States without admission or inspection in 1992. He has a U.S. citizen daughter, Jackelyn, and married Marlen Castaneda in 2016. Castaneda suffers from anxiety, depression, and back problems, but works as a cosmetologist and drives herself to appointments. Rivera has a criminal record including a 1992 arrest for sexual battery (plea to simple assault) and a 2016 arrest for child molestation of his ex-wife's then-twelve-year-old granddaughter, which was still pending at the time of the hearing. Rivera invoked his Fifth Amendment rights regarding the 2016 charges. The IJ considered these factors in denying cancellation of removal.
Procedural history
Rivera, a native and citizen of Guatemala, entered the U.S. illegally in 1992. He was served with a Notice to Appear in 2008. In 2012, an IJ ordered removal, which the BIA affirmed. Rivera filed a motion to reopen based on ineffective assistance of counsel, which the BIA granted in 2015, remanding for further proceedings on cancellation of removal. In 2017, the IJ denied cancellation of removal, finding no exceptional and extremely unusual hardship to a qualifying relative and also denying as a matter of discretion. The BIA affirmed in February 2018. Rivera petitioned for review.