Eliseo Us Marroquin v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________________ No. 20-2366 _______________________ ELISEO DANIEL US MARROQUIN, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________________ On Petition for Review from the Board of Immigration Appeals No. A087-164-516 Immigration Judge: David Cheng __________________________ Submitted Under Third Circuit L.A.R. 34.1(a) March 8, 2021 Before: SMITH, Chief Judge,* McKEE, and AMBRO, Circuit Judges (Filed: September 1, 2022) _________________________ OPINION** __________________________ SMITH, Chief Judge. * Judge Smith was Chief Judge at the time this appeal was submitted. He completed his term as Chief Judge and assumed senior status on December 4, 2021. ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Eliseo Daniel Us Marroquin, a native and citizen of Guatemala, petitions for review of the decision by the Board of Immigration Appeals (BIA) to dismiss his appeal from the denial by the Immigration Judge (IJ) of his application for cancellation of removal. For the reasons that follow, the petition will be dismissed in part and denied in part. I. After Marroquin was issued a notice to appear (NTA), he conceded removability and applied for cancellation of removal. The IJ conducted a hearing and concluded that Marroquin failed to meet his burden to show continuous physical presence in the United States for the 10 years leading up to the cancellation application. See 8 U.S.C. § 1229b(b)(1)(A). The IJ further concluded that, even assuming Marroquin had met his burden on the 10-year requirement, he did not establish that his removal would cause exceptional or extremely unusual hardship to his two United States citizen children. See 8 U.S.C. § 1229b(b)(1)(D). The IJ therefore denied relief. The BIA adopted and affirmed the IJ’s hardship determination. It concluded that the IJ’s factual findings were not clearly erroneous and, in light of them, Marroquin did not meet his burden of proof. Because the hardship determination was dispositive, the BIA declined to reach the issue of Marroquin’s claimed 10-year continuous presence in the United States. The BIA also rejected Marroquin’s contention that the IJ had been biased against him, observing that Marroquin had been represented by counsel, had a full and fair hearing, and that the record was adequately developed. Marroquin timely filed this petition for review. 2 II. Marroquin contends that the BIA’s hardship determination under § 1229b(b)(1)(D) is not supported by substantial evidence. We have long held that the hardship component of a cancellation-of-removal application is a “quintessential discretionary judgment” that is unreviewable pursuant to 8 U.S.C. § 1252(a)(2)(B)(i). Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). In Patel v. Garland, 142 S. Ct. 1614 (2022), the Supreme Court further concluded that in “discretionary-relief proceedings . . . enumerated in § 1252(a)(2)(B)(i),” such as cancellation of removal under § 1229b, we lack jurisdiction to review not only any underlying discretionary determinations such as hardship, but also “facts found as part of discretionary-relief proceedings.” Id. at 1627. Accordingly, judicial review of the …

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