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Cruz-Orellana v. Sessions

United States Court of Appeals, First Circuit

December 18, 2017

JEFFERSON B. SESSIONS, III, United States Attorney General, Respondent.


          Stephen M. Born on brief for petitioners.

          Carmel 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.

          Before Barron, Selya, and Lipez, Circuit Judges.

          LIPEZ, Circuit Judge.

         Petitioners 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.


         Alfredo Flores entered the United States without proper entry documentation in 1986, and Melvi Ayde de la Cruz-Orellana did the same three years later.[1] 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.

         Appearing at a removal hearing in March 2009, the couple submitted written petitions to the IJ requesting cancellation of their removal and, alternatively, voluntary departure.[2] 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).

         In an 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.

         In 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.[3] 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. § 1229b(b)(1)(D).

         Turning 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.[4] 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 Cruz-Orellana.

         Petitioners 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 voluntary departure.

         In 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 ...

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