May 26, 2016
for Review of an Order of the Board of Immigration Appeals
Wood, Chief Judge, and Manion and Hamilton, Circuit Judges.
Antonio Cisneros, who had been a lawful permanent resident of
the United States since 1996, had the bad judgment to commit
unarmed robbery in 2012. This is an aggravated felony under 8
U.S.C. § 1227(a)(2)(A)(iii), and so one result of his
conviction was the loss of his legal permanent resident
status. His conviction also made him inadmissible under 8
U.S.C. § 1182(a)(2)(A)(i)(I) - that is, unable to adjust
his status back to that of a lawful permanent
resident-because robbery is a crime of moral turpitude. In
order to regain eligibility for relief from removal through
adjustment of status, Cisneros needed to deal with the
problem of his inadmissibility. He therefore applied for a
waiver of inadmissibility under section 212(h) of the
Immigration and Nationality Act (INA), 8 U.S.C. §
1182(h)(1)(B), which gives the Attorney General the
discretionary power to waive inadmissibility based on several
grounds, including a crime of moral turpitude, if the person
is a spouse, parent, or child of a U.S. citizen who would
suffer "extreme hardship" if removed.
Attorney General has promulgated regulations implementing
this authority. The regulations state that with respect to
inadmissibility based on "violent or dangerous crimes,
" she "in general, will not favorably exercise
discretion under section 212(h)(2) of the Act ... to consent
to an application or reapplication for a visa, or admission
to the United States, or adjustment of status, with respect
to immigrant aliens who are inadmissible under section
212(a)(2) of the Act in cases involving violent or dangerous
crimes, except in extraordinary circumstances." 8 C.F.R.
§ 1212.7(d). The regulation identifies, as one example
of such extraordinary circumstances, "cases in which an
alien clearly demonstrates that the denial of the application
for adjustment of status or an immigrant visa or admission as
an immigrant would result in exceptional and extremely
unusual hardship." Id.
immigration judge granted Cisneros's application for a
waiver and adjustment of status, finding that his
U.S.-citizen family would suffer "exceptional and
extremely unusual hardship" as a result of his removal.
The Department of Homeland Security appealed, and the Board
of Immigration Appeals ("the Board") overturned
that decision and revoked the waiver. Cisneros now petitions
for review from the Board's decision. Our authority,
however, extends only to legal or constitutional issues, not
discretionary determinations. Finding no cognizable error, we
deny the petition for review.
came to the United States in 1988 at age 17 and stayed after
the expiration of his visa. In 1995, he married U.S. citizen
Melissa Cisneros, and in 1996 his status was adjusted to
lawful permanent resident. They were divorced in 2002, but
remained on good terms. Cisneros's oldest child, Maria
Esmeralda, was 24 years old at the time of the removal
proceeding; Marissa, his first child with Melissa, was 17
years old; and Marsea, their second daughter, was 15.
Cisneros also has two stepsons from Melissa's previous
marriage. Maria had three children of her own, only two of
whom are now living. According to the testimony, Cisneros
consistently supported the children financially and supported
Melissa after their divorce.
darker note, Cisneros has a history of alcoholism and a
criminal record that includes robbery, battery, a 1998 DUI,
and assorted convictions for driving without a license. He
has enrolled in rehabilitation programs several times, most
recently in 2008. The immigration judge described his
testimony about the 2012 conviction:
[H]e was depressed, his car was broken, so he went on a
bicycle and tried to look for a used car, something that was
inexpensive that maybe his family can lend him some money, or
some friends, in order to buy a new vehicle. As he was riding
his bicycle, he passed by a bank that he had not entered
before and told the teller to give him all her money. She
gave him all the money. He then walked out of the bank and
rode back to his home.
probable-cause affidavit for Cisneros's arrest adds that
his demand for money was on a written note that he handed the
teller that read, "Give me all the money." Cisneros
represents that he got just $75.
immigration judge heard testimony from Cisneros and Melissa.
Maria was unable to appear at the proceeding, for the grim
reason that her boyfriend at the time had beaten her
three-year-old daughter Anabel, Cisneros's granddaughter,
to death on December 23, 2014, and Maria herself was in jail
on felony neglect charges. The judge described Cisneros's
history with alcoholism and his attempts to get better, as
well as his close relationships with his children,
stepchildren, grandchildren, and ex-wife. She went through
the details of his prior convictions. She examined the
circumstances that led up to the 2012 robbery. She noted his
current sobriety and church attendance. She concluded, given
his earning potential, the recent family tragedy, and the
fact that all of the U.S. citizen family members would remain
in the United States even if Cisneros was removed, that the
"profound and far reaching" "economic and
emotional hardship" that would result from his removal
warranted an exercise of discretion in his favor.
Cisneros's removal, the immigration judge concluded,
"would result in exceptional and extremely unusual
hardship to his qualifying relatives, particularly his young
Board disagreed. It held that 8 C.F.R. § 1212.7(d)
applies to Cisneros's conviction because, despite the
absence of any weapon or harm caused to anyone, "the
potential for a physical altercation in committing"
robbery renders it a dangerous crime. The Board found that
Cisneros's younger daughters-the oldest, Maria, was not a
child within the meaning of the Act and therefore not a
qualifying family member-would "suffer the emotional and
financial hardship of separation from their father, "
but it would not be exceptional or extremely unusual. The
children would soon be old enough to visit him on their own,
the Board added. The Board also explained that hardship is
only one factor, ...