Celestino Silva-Calderon v. John Ashcroft, Attorney General

We consider whether we have jurisdiction to review procedural due process claims that the Board of Immigration Appeals (“BIA”) could have competently and effectively considered, but that Petitioner advances for the first time on appeal.

I

Petitioner Celestino Silva-Calderon (“Silva”) asks us to review the BIA’s denial of his application for cancellation of removal. Silva urges that a hearing before the Immigration Judge (“IJ”) offended due process and denied him a full and fair hearing because the IJ declined to grant a continuance, and because the IJ declined to issue a subpoena to a witness who had provided an affidavit.

The BIA’s decision affirming denial of cancellation of removal was based on the IJ’s finding that Silva had not demonstrated that his six-year-old daughter — an American citizen with eyesight problems and delays in her development — would experience the “exceptional and extremely unusual” hardship required for cancellation of Silva’s removal pursuant to 8 U.S.C. § 1229b(b), INA § 240A(b).

The IJ did not continue the case at the end of the merits hearing because he reasoned that Silva’s counsel should have gathered any outstanding information before the…