FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Stephen M. Born on brief for petitioners.
A. Morgan, Trial Attorney, Office of Immigration Litigation,
Chad A. Readler, Principal Deputy Assistant Attorney General,
and Shelley R. Goad, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
Barron, Selya, and Lipez, Circuit Judges.
Melvi Ayde de la Cruz-Orellana and Alfredo Flores are a wife
and husband who seek review of a decision denying their
applications for voluntary departure to Guatemala and Mexico,
respectively. An Immigration Judge ("IJ") denied
petitioners' applications on discretionary grounds, and
the Board of Immigration Appeals ("BIA") affirmed
the IJ's decision. Petitioners timely sought review in
this court. We now dismiss for want of jurisdiction.
Flores entered the United States without proper entry
documentation in 1986, and Melvi Ayde de la Cruz-Orellana did
the same three years later. The two met in California, and
they were married in approximately 1994. At the time of these
immigration proceedings, they resided in Providence, Rhode
Island, with their son, Jonathan Flores.
at a removal hearing in March 2009, the couple submitted
written petitions to the IJ requesting cancellation of their
removal and, alternatively, voluntary
departure. To be statutorily eligible for
cancellation of removal, petitioners had to show (amongst
other factors) that they had been "person[s] of good
moral character" for at least ten years, and that their
removal "would result in exceptional and extremely
unusual hardship" to their United States-citizen child.
8 U.S.C. § 1229b(b)(1). They similarly had to show --
again, amongst other factors -- that they had been persons of
good moral character for at least five years to be
statutorily eligible for voluntary departure. 8 U.S.C. §
1229c(b)(1). Statutory eligibility, however, does not
guarantee success. The IJ could deny petitioners'
requests for cancellation of removal and voluntary departure
as a matter of discretion. See 8 U.S.C. §§
1229b(b)(1), 1229c(b)(1) (stating that the Attorney General
"may" cancel an immigrant's removal and
"may" permit him to depart voluntarily).
oral decision in November 2014, the IJ rejected
petitioners' requests for both forms of relief. First, he
found that Cruz-Orellana had "given false testimony for
the purpose of obtaining" immigration benefits, and was
therefore not a person of good moral character for
cancellation of removal purposes. 8 U.S.C. § 1101(f)(6).
Specifically, Cruz-Orellana completed an application for
asylum in 1993, representing that she had been tortured by
guerrillas in Guatemala, and was married to a guerrilla
commandant known as El Gallo Giro. She reaffirmed the
accuracy of her application when she appeared before an
asylum officer in August 2007. However, in a hearing before
the IJ, Cruz-Orellana admitted that the information in her
asylum application was false.
denying cancellation of removal to Cruz-Orellana, the IJ
found that she could not benefit from the "recantation
doctrine." That doctrine provides that false testimony
will not prevent an immigrant from establishing her good
moral character when she timely recants the false
testimony. See Matter of Namio, 14 I. &
N. Dec. 412, 414 (BIA 1973); Matter of M-, 9 I.
& N. Dec. 118, 119 (BIA 1960). According to the IJ,
Cruz-Orellana did not recant her false testimony in a
"timely" manner. The IJ then offered another reason
to reject Cruz-Orellana's request for cancellation of
removal, which also applied to Flores's request for the
same. The couple could not show that their son would incur
"exceptional and extremely unusual hardship" upon
their removal, a prerequisite to obtaining relief. 8 U.S.C.
to Cruz-Orellana's request for voluntary departure, the
IJ began by incorporating his prior discussion
"regarding her false oral testimony before the Asylum
Officer." He considered the false testimony "a
significant factor that reflects upon her bad
character." The IJ then weighed Cruz-Orellana's
false testimony against certain positive factors and declined
to grant her voluntary departure as a matter of
discretion. Lastly, the IJ also denied voluntary
departure to Flores as a matter of discretion. In doing so,
the IJ relied in part upon a police report from a 2000
domestic violence incident involving Flores and
appealed the IJ's decision to the BIA. The BIA first
noted that petitioners' son, Jonathan, had turned 21
during the pendency of their appeal, leaving them unable to
show that their removal would result in exceptional and
extremely unusual hardship to their "child." 8
U.S.C. § 1101(b)(1) (defining "child" as, in
relevant part, "an unmarried person under twenty-one
years of age"). It then upheld the IJ's
discretionary decisions to deny petitioners' requests for
their petition for review to this court, petitioners concede
that their son's age makes them ineligible for
cancellation of removal. They maintain, however, that the IJ
erred in denying their requests for voluntary departure.
Cruz-Orellana argues that the recantation doctrine should
have prevented the IJ from considering her false testimony in
denying her voluntary departure as a matter of discretion.
Flores asserts that the IJ's reliance on the 2000
domestic violence police report ...