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Gutierrez v. Mukasey

Facts

Martha Cervantes Serrano and her daughter Alma Serrano-Cervantes petitioned for review of a final order issued by the BIA, which affirmed the IJ's denial of their applications for cancellation of removal. The IJ determined that Alma had no qualifying relative, as she had no spouse or children, and neither of her parents were U.S. citizens or lawful permanent residents. The petitioners also claimed ineffective assistance of counsel, arguing that their previous attorney failed to file a timely motion to reopen their case.

Martha Cervantes Serrano and her daughter Alma Serrano-Cervantes petitioned for review of a final order issued by the BIA, which affirmed the IJ's denial of their applications for cancellation of removal. The IJ determined that Alma had no qualifying relative, as she had no spouse or children, and neither of her parents were U.S. citizens or lawful permanent residents. The petitioners also claimed ineffective assistance of counsel, arguing that their previous attorney failed to file a timely motion to reopen their case.

Issue

Whether the BIA abused its discretion in denying the petitioners' motion to reopen and whether the IJ's determination regarding the qualifying relative was appropriate.

Whether the BIA abused its discretion in denying the petitioners' motion to reopen and whether the IJ's determination regarding the qualifying relative was appropriate.

Rule

Under INA section 240A(b)(1), the Attorney General may cancel removal of an alien if the alien establishes that removal would result in exceptional 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 permanent residence.

Under INA section 240A(b)(1) the Attorney General may cancel removal of an alien deportable from the United States if the alien: '(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 212(a)(2), 237(a)(2), or 237(a)(3)]; and (D) establishes that removal would result in exceptional 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 permanent residence.' 8 U.S.C. 1229b(b)(1).

Analysis

The court determined that it lacked jurisdiction to review the IJ's original hardship determination and that the BIA did not abuse its discretion in denying the motion to reopen. The petitioners failed to demonstrate that their previous counsel's ineffective assistance affected the outcome of the proceedings, as they did not provide evidence that treatment for vitiligo was unavailable in Mexico, nor did they articulate this argument in their motion to reopen.

The court determined that it lacked jurisdiction to review the IJ's original hardship determination and that the BIA did not abuse its discretion in denying the motion to reopen. The petitioners failed to demonstrate that their previous counsel's ineffective assistance affected the outcome of the proceedings, as they did not provide evidence that treatment for vitiligo was unavailable in Mexico, nor did they articulate this argument in their motion to reopen.

Conclusion

The court denied the petition for review, concluding that the BIA did not abuse its discretion in its decision.

The petition for review was denied.

Who won?

The BIA prevailed in the case as the court upheld its decision, finding no abuse of discretion in denying the motion to reopen.

The BIA prevailed in the case as the court upheld its decision, finding no abuse of discretion in denying the motion to reopen.

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