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Montanez-Gonzalez v. Holder

United States Court of Appeals, Sixth Circuit

March 12, 2015

ALFREDO MONTANEZ-GONZALEZ, Petitioner,
v.
ERIC H. HOLDER, JR., Respondent

On Petition for Review of a Decision of the Board of Immigration Appeals. No. A089 080 741.

ON BRIEF:

Andrea J. Ferrara, Roseville, Michigan, for Petitioner.

Andrew N. O'Malley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

BEFORE: GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge[*].

OPINION

Page 721

JANE B. STRANCH, Circuit Judge.

Alfredo Montanez-Gonzalez, a native and citizen of Mexico, seeks review of a decision of the Board of Immigration Appeals (BIA), affirming the decision of the Immigration Judge (IJ) denying his application for cancellation of removal. The IJ denied Montanez-Gonzalez's application on the grounds that he had established neither his continuous presence in this country nor the degree of hardship to his citizen relatives required for cancellation of removal, and the BIA affirmed on the hardship ground. Montanez-Gonzalez contends that the BIA failed to follow its own precedent and failed to correct constitutional errors in the IJ's procedure, along with other arguments over which we lack jurisdiction. Because the BIA did, in fact, follow its own precedent and Montanez-Gonzalez cannot show constitutional injury, we deny the petition for review on those issues and dismiss the petition with regard to those issues over which we lack jurisdiction.

I. BACKGROUND

Montanez-Gonzalez was born in a small town in Zacatecas, Mexico. He entered the United States without inspection in 1997 and has primarily lived here since. He returned to Mexico in 2001 to marry his wife and brought her back to the United States. Montanez-Gonzalez and his wife lack lawful status, but they have three daughters, ages five, nine, and thirteen, who were born in this country and therefore have United States citizenship. The family lived in Michigan near his wife's father, stepmother, brother, and the brother's family. The Montanez-Gonzalez children are close with their extended family, who live nearby, and they have never been to Mexico. The eldest daughter excels in school and testified that she wants to be a doctor when she grows up. Montanez-Gonzalez's parents remain in Zacatecas, as do members of his wife's extended family.

Montanez-Gonzalez was placed in removal proceedings in early 2009 and applied for cancellation of removal, pursuant to INA § 240A(b), 8 U.S.C. § 1229b(b). At a hearing, he presented evidence about rampant gang violence and limited educational opportunities in Zacatecas, as well as concerns about his ability to provide for his children should he be removed. He also sought the introduction of a late exhibit which purported to show that his middle daughter was diagnosed with lead poisoning causing injury to her legs. The exhibit stated that the daughter " has been requested by Dr. Perla to see an orthopedic specialist. She has had an elevated lead level and an appointment has been made."

The IJ denied Montanez-Gonzalez's application for cancellation of removal on two grounds--first, that he had failed to establish

Page 722

sufficient continuous residency to be eligible for relief and second, that he had not established that his removal would create the requisite hardship for his citizen children. He appealed to the BIA, which affirmed the denial on only the hardship ground. Montanez-Gonzalez filed this petition for review, as well as two motions to stay his removal. Both motions for a stay were denied, and he ...


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