Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

12-17-2004

Yupanqui v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2515

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 03-2515

PORFIRIO YUPANWQUI,

Petitioner

v.

JOHN ASHCROFT, Attorney General of the United States, and BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES (BCIS) DISTRICT DIRECTOR,

Respondents

On Petition for Review of an Order of the Board of Immigration Appeals (Board No. A78-573-882)

Submitted Under Third Circuit LAR 34.1(a) on 11/15/04

Before: ROTH , SMITH, and WEIS, Circuit Judges.

(Filed: December 17, 2004)

OPINION

ROTH, Circuit Judge: Petitioner Porfirio Yupanqui is a native of Peru. On November 11, 1989, he

entered the United States without inspection in violation of

(a)(6)(A)(i)

and was subject to removal from the United States. Yupanqui conceded his removability

before an Immigration Judge (IJ) but applied for a cancellation of removal in accordance

with

(b). On December 7, 2001, the IJ denied Yupanqui’s application for

cancellation of removal. The IJ held that Yupanqui did not demonstrate that his

American citizen daughter would suffer “exceptional and extremely unusual hardship” –

as defined in

(b)(1)(D) – if he were to be removed from the United States.

This decision was affirmed without an opinion (AWO) by the Board of Immigration

Appeals (BIA).

Yupanqui seeks a petition for review by this court. He raises two issues that he

feels were errors committed during the previous proceedings. He argues (1) that the IJ’s

decision concerning the lack of a showing of “exceptional and extremely unusual

hardship” was erroneous, and (2) that his due process rights were violated by the BIA’s

decision to affirm without issuing an opinion. Because we lack the jurisdiction to review

discretionary decisions made by the IJ and because the BIA’s AWO does not violate due

process, we will deny Yupanqui’s petition.1

We have recently held in an analogous case that pursuant to

We will not discuss the facts because we write only for the parties and they are familiar with them.

2 1252(a)(2)(B)(i), we do not have jurisdiction to hear discretionary decisions made under

(b). Mendez-Moranchel v. Ashcroft,

, 178 (3d Cir. 2003). We

also held that the question of whether an alien can establish “exceptional and extremely

unusual hardship” under Section 1229(b)(1)(D) is a discretionary question. Id. at 178-79.

We stated that, “[t]he determination of whether the alien has established the requisite

hardship is a quintessential discretionary judgment.” Id. at 179. This decision was

consistent with other circuits that addressed the same question. Id. Thus, we lack

jurisdiction to address Yupanqui’s argument that the IJ and BIA wrongly decided that he

did not meet the necessary hardship standard.

As to the due process argument, after Yupanqui filed his brief in this appeal, we

held in Dia v. Ashcroft,

(3d Cir. 2003), that “the BIA could have articulated

its reasons for affirming the IJ’s order, but just because it had the power to do so, does not

mean the Constitution required it to exercise that power.”

. We concluded that

a “meaningful review” is established as long as either the BIA or the IJ “put forth a

sufficiently reasoned opinion.”

. The IJ’s opinion here meets that standard.

Hence, with Dia as controlling precedent in this circuit, Yupanqui’s due process argument

fails.

For the aforementioned reasons, we will deny Yupanqui’s petition for review.

3