Juan Gonzalez-Nicolas v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 20-3408 ___________ JUAN JESUS GONZALEZ-NICOLAS, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A216-370-983) Immigration Judge: Honorable David Koelsch ____________________________________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 28, 2021 Before: JORDAN, MATEY and NYGAARD, Circuit Judges (Opinion filed July 29, 2021) ___________ OPINION* ___________ PER CURIAM * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Juan Jesus Gonzalez-Nicolas petitions for review of his final order of removal. We will dismiss the petition in part and deny it in remaining part. I. Gonzalez-Nicolas is a citizen of Mexico who entered the United States illegally. The Government charged him as removable on that basis and, through counsel, he conceded the charge. Gonzalez-Nicolas did not claim to fear any harm in Mexico. Instead, the only relief he sought was cancellation of removal under 8 U.S.C. § 1229b(b) on the ground that his U.S.-citizen daughter will suffer hardship if he is removed. Gonzalez-Nicolas testified and offered evidence in support of his application at a hearing before an immigration judge (“IJ”). The IJ later issued a written decision denying Gonzalez-Nicolas’s application on three independent grounds. First, the IJ concluded that Gonzalez-Nicolas had not shown that he has been a “person of good moral character” during his presence in the United States as required by § 1229b(b)(1)(B). Second, the IJ concluded that Gonzalez-Nicolas failed to show that his removal will result in “exceptional and extremely unusual hardship” to his daughter as required by § 1229b(b)(1)(D). Third, the IJ concluded that cancellation was not warranted in the exercise of discretion. In support of the first and third of those conclusions, the IJ relied on (1) Gonzalez- Nicolas’s conviction of a DUI during which (according to the charging instrument) his daughter was in the car, and (2) Gonzalez-Nicolas’s recent and admitted assault of his daughter’s mother, who had a restraining order against him at the time. The IJ also found Gonzalez-Nicolas’s testimony about those two incidents not credible on the basis of 2 inconsistencies between his testimony and other evidence of record. Gonzalez-Nicolas appealed through counsel to the BIA, which adopted the IJ’s decision and also explained why it rejected the arguments he raised on appeal. Gonzalez-Nicolas now petitions for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1) except as discussed herein. II. As the Government argues, we lack jurisdiction to review the agency’s discretionary determinations regarding cancellation of removal except to the extent that Gonzalez-Nicolas raises a colorable constitutional claim or question of law. See 8 U.S.C. § 1252(a)(2)(B)(i), (D); Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 249 (3d Cir. 2020). Gonzalez-Nicolas raises one argument that qualifies, but it lacks merit. Gonzalez-Nicolas argues that he was denied due process during his hearing before the IJ, which was conducted by video conference, because the audio …

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