Laura Arteaga-De Alvarez v. Eric H. Holder Jr.

*733 Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge SILVERMAN.

OPINION

I.

Petitioner Laura Arteaga de Alvarez (“Arteaga”) is an undocumented Mexican national. She is married to a legal permanent resident, who obtained that status after being granted cancellation of removal in 2003, shortly before the couple married. They have three children who are all United States citizens. In 2005, after voluntarily turning herself in to immigration authorities, Arteaga applied for cancellation of removal. Her application was denied in 2007 by an immigration judge who determined that she had not demonstrated the requisite exceptional and extremely unusual hardship to a qualifying relative. The BIA affirmed, and included in its reasoning a statement that the fact that Ar-teaga had alternative means to immigrate, i.e. a spousal petition filed by her husband, necessarily undercut her ability to demonstrate that her children would suffer exceptional and extremely unusual hardship if she were to be removed from the United States. We hold that we do not have jurisdiction over Arteaga’s claim that her due process rights were violated by the fact that her husband was…

concurring in part and dissenting in part:

I agree with the majority that we lack jurisdiction over Petitioner’s due process claim and that we must dismiss that aspect of the petition for review. However, I respectfully disagree with the majority’s conclusion that the BIA, as a matter of law, erred in finding Petitioner had an alternative means to adjust her status, one of many factors relevant to the “exceptional and extremely unusual hardship” requirement for cancellation of removal. I would dismiss the petition for review in its entirety.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 stripped this court of its jurisdiction to review these discretionary hardship determinations. In Romero-Torres v. Ashcroft, 327 F.3d 887 (9th Cir.2003), we held that the hardship requirement posed a “subjective question” and that “[bjecause the BIA ... is vested with the discretion to determine whether an alien has demonstrated the requisite hardship, we are without jurisdiction to review the BIA’s hardship determinations under IIRIRA.” Id. at 890-91 . We reaffirmed this holding after the REAL ID Act of 2005 was passed. Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAURA SONIA ARTEAGA -DE No. 08-70941

ALVAREZ,

Petitioner, Agency No.

A200-050-940

v.

ERIC H. HOLDER, JR., Attorney OPINION General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted August 9, 2012* Pasadena, California

Filed December 26, 2012

Before: Stephen Reinhardt, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Reinhardt; Partial Concurrence and Partial Dissent by Judge Silverman

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). ARTEAGA -DE ALVAREZ V . HOLDER

SUMMARY**

Immigration

The panel dismissed in part for lack of jurisdiction and vacated in part Laura Arteaga de Alvarez’s petition for review from the Board of Immigration Appeals’ decision denying her application for cancellation of removal.

The panel dismissed for lack of jurisdiction Arteaga’s claim that the denial of cancellation deprived her of due process where a different Immigration Judge had four years…