Martha Leticia Salvador-Calleros v. John Ashcroft, Attorney General

389 F.3d 959 Martha Leticia SALVADOR-CALLEROS, Petitioner, v. John ASHCROFT, Attorney General, Respondent. No. 02-71727. United States Court of Appeals, Ninth Circuit. Submitted November 16, 2004. * Filed November 23, 2004. Andrew J. Vazquez, Attorney at Law, Pasadena, CA, for the petitioner. Francesco Isgro, U.S. Department of Justice, Civil Division, Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Aow-wnc-piy. Before: B. FLETCHER, LEAVY, and WARDLAW, Circuit Judges. Opinion by Judge BETTY B. FLETCHER; Partial Concurrence and Partial Dissent by Judge LEAVY. BETTY B. FLETCHER, Circuit Judge. 1 Martha Salvador-Calleros petitions for review of the Board of Immigration Appeals' ("BIA") summary affirmance of an appeal from an Immigration Judge's ("IJ") denial of her application for cancellation of removal. Salvador-Calleros challenges the IJ's discretionary hardship determination and the BIA's decision to streamline her appeal. Salvador-Calleros also challenges the constitutionality of the hardship standard applied by the IJ and the constitutionality of the BIA's streamlining regulations. Finally, Salvador-Calleros…

Opinion by Judge BETTY B. FLETCHER; Partial Concurrence and Partial Dissent by Judge LEAVY.

Martha Salvador-Calleros petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an appeal from an Immigration Judge’s (“IJ”) denial of her application for cancellation of removal. Salvador-Calleros challenges the IJ’s discretionary hardship determination and the BIA’s decision to streamline her appeal. Salvador-Calleros also challenges the constitutionality of the hardship standard applied by the IJ and the constitutionality of the BIA’s streamlining regulations. Finally, Salvador-Calleros moves for a stay of removal and voluntary departure pending disposition of her petition for review.

Because we lack jurisdiction to review either the IJ’s discretionary hardship determination or the BIA’s application of its streamlining regulations to an appeal in which the discretionary hardship determination is the only factor in dispute, we dismiss in part the petition for review. Because we conclude that the hardship standard applied by the IJ falls within the broad range authorized by statute, and we find that Salvador-Calleros’ constitutional challenge to the…

concurring in part and dissenting in part:

I agree that Salvador-Calleros has established no claims of denial of due pro *966 cess. Because Salvador-Calleros’ motion to stay voluntary departure was filed after the expiration of her voluntary departure period, I disagree with the majority’s conclusion that the motion to stay voluntary departure was timely filed.

Authority to grant a period of voluntary departure is limited to an Immigration Judge and the Board of Immigration Appeals (“BIA”). The voluntary departure period in this case could have been for any number of days not exceeding 60 days. See 8 U.S.C. § 1229c(b)(2). The BIA granted Salvador-Calleros a voluntary departure period of 30 days.

Authority to extend a period of voluntary departure is limited to the district director, the Deputy Executive Associate Commissioner for Detention and Removal, or the Director of the Office of Juvenile Affairs. 8 C.F.R. § 1240.26 (f).

The courts have no authority to grant or extend the period allowed for voluntary departure. See Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1172 (9th Cir.2003) (“It is executive rather than judicial officers who decide when an alien must depart.…