Arellano v. Gonzales
Docket: No. 04-70383
Court: Court of Appeals for the Ninth Circuit; May 19, 2006; Federal Appellate Court
Judith Arellano, her husband Enrique Arellano Duran, and their minor daughter Nayely Arellano petition for review of the Board of Immigration Appeals' (BIA) summary affirmance of an immigration judge's (IJ) denial of their applications for cancellation of removal under 8 U.S.C. § 1229b(b). The BIA's decision is reviewed as the final agency determination, following the IJ's conclusion that the petitioners did not demonstrate "exceptional and extremely unusual hardship" as required by the statute. The petitioners present two constitutional challenges to the IJ's application of the hardship standard. First, they argue that the removal order infringes on their fundamental right to direct the care and custody of their three U.S. citizen children and enjoy their companionship. However, the court finds this argument unpersuasive as the removal order does not prevent the petitioners from taking their children to Mexico, thus not implicating the claimed parental rights. The court also cites precedence that negates the assertion regarding the rights of their U.S. citizen children. Second, the petitioners assert that the hardship standard is unconstitutionally vague. However, the court interprets this challenge as merely a recasting of an abuse of discretion claim, which lacks jurisdiction for review. As such, traditional abuse of discretion claims do not constitute valid constitutional claims for jurisdictional purposes. The court ultimately dismisses the petition in part and denies it in part, indicating that this disposition is not suitable for publication and cannot be cited in future cases, except as permitted by Ninth Circuit Rule 36-3.