CARLOS M. RIVERA, Petitioner,
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
H. Hasan and Hasan Law Group PLLC on brief for petitioner.
M. Damiano, Trial Attorney, Office of Immigration Litigation,
Civil Division, U.S. Department of Justice, Chad A. Readler,
Acting Assistant Attorney General, Civil Division, and Greg
D. Mack, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.
Lynch, Selya, and Lipez, Circuit Judges.
M. Rivera, a native and citizen of Guatemala who entered the
United States illegally in 1992, seeks review of a February
2018 Board of Immigration Appeals (BIA) final decision
denying his application for cancellation of removal pursuant
to section 240A(b)(1) of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1229b(b)(1). An immigration judge (IJ)
denied Rivera's request, in part due to the criminal
charges pending against Rivera of child molestation of his
ex-wife's then-twelve-year-old granddaughter. The BIA
affirmed the IJ and dismissed the appeal on the bases that
Rivera had failed to demonstrate exceptional and extremely
unusual hardship to a qualifying relative, and also that he
did not establish that he warranted cancellation of removal
as a matter of discretion. That is the order now before us.
We dismiss Rivera's petition for lack of jurisdiction
over his attacks on the BIA's decision.
more details on the background facts. Rivera last entered the
United States without admission or inspection in 1992.
January 2008, the U.S. Department of Homeland Security (DHS)
served Rivera with a Notice to Appear in removal proceedings.
At a hearing before an IJ in May 2012, Rivera conceded
removability, but sought cancellation of removal pursuant to
INA § 240A(b)(1) and the Nicaraguan Adjustment and
Central American Relief Act of 1997 (NACARA), Pub. L. No.
105-100, §§ 201-204, 111 Stat. 2160, 2196-2201
(codified as amended in scattered sections of 8 U.S.C.). In
the alternative, Rivera sought voluntary departure. Rivera
and his former wife had applied for relief and listed their
then-minor daughter, Jackelyn, who is a U.S. citizen, as the
denied Rivera's application in July 2012. The BIA found no
error on Rivera's appeal of that decision. In April 2015,
Rivera filed a motion before the BIA to reopen and remand the
proceedings, arguing ineffective assistance of his counsel.
The BIA initially denied Rivera's motion, but granted his
subsequent motion to reconsider the decision in September
2015, after DHS did not file an opposition. The BIA remanded
the case to the IJ for further proceedings as to Rivera's
application for cancellation of removal under INA §
updated April 2017 application under INA § 240A(b)(1)
listed Marlen Castaneda, his new wife as of August 2016, as
the qualifying relative (his daughter Jackelyn had turned
twenty-one in the interim and no longer qualified). Rivera
testified that Castaneda suffers from anxiety, depression,
and problems with her back, and that she takes medication for
back pain, anxiety, and cholesterol. Castaneda's
testimony confirmed this, and she attributed her depression
to Rivera's detention.Castaneda works as a cosmetologist and
drives herself to her various appointments.
has been arrested five times, in 1992, 1995, 1997, 2007, and
2016; three of the arrests resulted in dismissal of all
charges. The 1992 arrest was for sexual battery, but he
pleaded guilty to simple assault and
battery. The 2016 arrest was for child
molestation of Rivera's ex-wife's
then-twelve-year-old granddaughter; the charges were still
pending as of his hearing date before the IJ. Rivera invoked
his Fifth Amendment right against self-incrimination when
asked for ...