6 Cir: Fed ct can’t reconsider IJ’s weighing of hardship factors

By University of Denver Sturm College of Law

Dec 1, 2011

The U.S. Court of Appeals for the Sixth Circuit recently held that it lacks jurisdiction to review the weight that an IJ attaches to evidence of hardship for purposes of Cancellation of Removal. Ettienne v. Holder, No. 10-3896, slip op. (6th Cir. Oct. 5, 2011) (Rogers, McKeague, and Donald, JJ.) Judge Rogers wrote the panel’s decision.

This case involves a woman who entered the United States on what appears to be a non-immigrant visa (the court is unclear about this) and admitted to marriage fraud in 1990. Ettienne, No. 10-3896, slip op. at 3. DHS did not initiate removal proceedings until 2001 when she sought to adjust her status to that of permanent residence on the basis of her marriage to her United States citizen husband. Ettienne, No. 10-3896, slip op. at 3. DHS charged her with being inadmissible due to the marriage fraud, INA § 237(a)(1)(G)(ii), and unlawful presence, INA § 237(a)(1)(B). Ettienne, No. 10-3896, slip op. at 3. Ettienne sought Cancellation of Removal for Non-LPRs pursuant to INA § 240A(b)(1). Ettienne, No. 10-3896, slip op. at 3.

The IJ “determined that Ettienne had not satisfied the final requirement [for Cancellation]—showing that her removal would cause Bradley [her husband] or the children to suffer more hardship than would normally be expected under the circumstances, 8 U.S.C. § 1229b(b)(1)(A)-(C).” Ettienne, No. 10-3896, slip op. 5. Her Cancellation application was therefore denied. Ettienne, No. 10-3896, slip op. at 5. The BIA affirmed the IJ’s hardship determination. Ettienne, No. 10-3896, slip op. 5.

On appeal to the Sixth Circuit, Ettienne argues that “the BIA failed to consider all the hardship factors in their totality, as required by the BIA’s precedential decision in In re Gonzalez Recinas, 23 I&N Dec. 467, 473 (BIA 2002).” Ettienne, No. 10-3896, slip op. at 6. Specifically, she “argues that the IJ ignored the totality requirement by failing to specifically identify every hardship factor that Ettienne’s family would face upon her removal.” Ettienne, No. 10-3896, slip op. at 6.

The Sixth Circuit concluded that it has no jurisdiction to consider such an argument because this amounts to a request that the Sixth Circuit weigh the evidence itself rather than leave this task to the IJ. “This is a challenge to the weighing of the evidence that, if accepted, would effectively eliminate the jurisdictional bar on review of denials of cancelation of removal,” the court explained. Ettienne, No. 10-3896, slip op. 6.

While the court acknowledged its power to review claims that the IJ or BIA incorrectly applied questions of law or “nondiscretionary issues,” Ettienne, No. 10-3896, slip op. at 6, it “lacks jurisdiction over claims that can be evaluated only by engaging in head-to-head comparisons between the facts of the petitioner’s case and those of precedential decisions. The BIA will sometimes reach opposite conclusions in cases that have many factual similarities, but this does not reflect a failure of the agency to follow its own precedent. Rather, the different outcomes are an expected result of the discretionary weighing required to make individualized determinations.” Ettienne, No. 10-3896, slip op. 8.

Accordingly, the court concluded, “we lack jurisdiction over claims that the IJ failed to consider or put insufficient emphasis on particular factors in the Petitioner’s case.” Ettienne, No. 10-3896, slip op. at 8.