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Ernesto Delgado v. Eric H. Holder

March 22, 2012


Petition for Review of an Order of the Board of Immigration Appeals. No. A077-767-216

The opinion of the court was delivered by: Flaum, Circuit Judge.


Before POSNER, FLAUM, and MANION, Circuit Judges.

Ernesto Delgado entered the United States illegally in 1989. Eleven years later, in 2000, the Immigration and Naturalization Service (the "INS") commenced removal proceedings against Delgado by sending him a Notice to Appear. Delgado admitted the allegations in the Notice to Appear, but sought leave to stay in the United States by filing an application for Cancellation of Removal. After several immigration hearings and two remands from the Board of Immigration Appeals (the "BIA" or "Board"), an immi- gration judge denied Delgado's application for cancel- lation, and the BIA affirmed that finding. Delgado appeals the BIA's decision, claiming that his cancella- tion application was wrongly decided and that his right to due process was violated. We deny Delgado's peti- tion for review.

I. Background

In 1989, Delgado left his home in Morelos, Mexico and illegally entered the United States. He settled in Chicago where he has maintained a continuous resi- dence. In 1992, he married Analoet Roman, another illegal alien, and together they have three children: Guadalupe (18 years old), Daisy (13 years old) and Luis (5 years old). All three of the Delgado's children were born in the United States and are U.S. citizens.

This case began in 2000 when the INS commenced proceedings against Delgado with the filing of a Notice to Appear. The Notice to Appear charged Delgado with being a native of Mexico who is subject to removal from the United States. In response, Delgado filed an ap- plication for cancellation of removal pursuant to INA § 240A(b)(1), 8 U.S.C. § 1229b(b)1. To qualify for cancel- lation under § 1229b(b)(1), an alien must meet the fol- lowing four criteria:

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and

(D) establishes that removal would result in excep- tional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for per- manent residence.

The merits hearing on Delgado's cancellation of removal claim took place on September 24, 2004. Though the immigration judge ("IJ") found that Delgado established the requisite continuous physical presence and good moral character for cancellation of removal, he deter- mined that Delgado failed to meet his burden of showing his removal would result in exceptional and extremely unusual hardship to his children, who are United States citizens. The IJ denied his application for cancellation or removal, granted voluntary depar- ture, and alternatively, ordered his removal to Mexico.

Delgado appealed the IJ's decision to the BIA. In 2005, the BIA remanded Delgado's case to the IJ for further action and certification because the tape recording of Delgado's hearing was defective, which prevented the BIA from analyzing Delgado's claims on appeal. The BIA instructed the IJ to take the steps neces- sary and appropriate to enable the BIA to review a com- plete record and to hold a new hearing if necessary. In response, the IJ determined that a new hearing was unnecessary, given that the only shortcoming of the previous record was an inability to discern what was said at Delgado's hearing. The IJ therefore determined that it was inappropriate to consider new documents or evidence.

The BIA disagreed. In July 2008, the BIA ruled that its 2005 order did not preclude the submission of new evidence or the taking of additional testimony, and because new evidence might have been relevant, it ordered a new hearing and preparation of a new decision that included comprehensive findings of fact. On June 18, 2010, the IJ held a second merits hearing on Delgado's application for relief.

During Delgado's 2010 cancellation hearing--the hearing we now review--Delgado offered supporting evidence in the form of documentation and live testi- mony. Delgado testified that his parents and at least two brothers still reside in Morelos. Despite this fact, he claimed that his family would be unable to stay with his parents in Mexico because his parents do not have the resources to support them. Delgado admits that he has not looked into the possibility of living anywhere other than Morelos, or living with anyone other than his parents. Delgado also stated that if he were to move to Mexico, his father, who owns a ...

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