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Rivera v. Sessions

United States Court of Appeals, First Circuit

September 6, 2018

CARLOS M. RIVERA, Petitioner,
v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Sameer H. Hasan and Hasan Law Group PLLC on brief for petitioner.

          Lisa 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.

          Before Lynch, Selya, and Lipez, Circuit Judges.

          LYNCH, CIRCUIT JUDGE

         Carlos 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).[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.

         I.

         We give more details on the background facts. Rivera last entered the United States without admission or inspection in 1992.

         A. Prior Proceedings

         In 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 qualifying relative.

         The IJ denied Rivera's application in July 2012.[2] 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 § 240A(b)(1).[3]

         B. Present Case

         Rivera's 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.[4]Castaneda works as a cosmetologist and drives herself to her various appointments.

         Rivera 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 ...


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