Tomas Morales Hernandez v. U.S. Attorney General

Case: 18-14370 Date Filed: 09/13/2019 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 18-14370 Non-Argument Calendar ________________________ Agency No. A206-528-820 TOMAS MORALES HERNANDEZ, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (September 13, 2019) Before TJOFLAT, JORDAN and HULL, Circuit Judges. PER CURIAM: Case: 18-14370 Date Filed: 09/13/2019 Page: 2 of 17 Tomas Morales Hernandez, represented by counsel, seeks review of the Board of Immigration Appeals’ (“BIA”) decision: (1) affirming the Immigration Judge’s (“IJ”) denial of his application for cancellation of removal; and (2) denying his motion to remand his removal proceedings. In his petition for review, Hernandez argues that the IJ did not have jurisdiction over his removal proceedings because his Notice to Appear (“NTA”) omitted the date and time of his initial hearing at Krome Service Processing Center (“Krome”), even though a subsequent notice of hearing served on Hernandez a few weeks later contained that information, and Hernandez, along with his counsel, appeared at his hearing. Alternatively, Hernandez argues that the BIA erred in affirming the IJ’s decision and in denying his motion to remand because he demonstrated that he was of good moral character and that his U.S.-born children would experience exceptional and extremely unusual hardship if he was removed to Mexico. Hernandez also argues that he was deprived of his right to due process because of errors in the transcript of his hearing on his application for cancellation of removal. After review, we conclude, based on Perez-Sanchez v. United States Attorney General, ___ F.3d ___, No. 18-12578, 2019 WL 3940873, at *7 (11th Cir. Aug. 21, 2019), that the omissions in Hernandez’s NTA did not deprive the IJ of jurisdiction. As to the merits, we conclude that we lack appellate jurisdiction to review Hernandez’s challenge to the BIA’s decisions because they were based on 2 Case: 18-14370 Date Filed: 09/13/2019 Page: 3 of 17 discretionary determinations and that Hernandez has not raised a colorable due process claim. Accordingly, we deny in part and dismiss in part Hernandez’s petition for review. I. FACTUAL BACKGROUND A. Illegal Entry and Criminal History Hernandez, a native and citizen of Mexico, entered the United States without inspection in 2001. Since then, Hernandez has lived and worked in Florida, where he and his wife have two young, U.S.-citizen children. Hernandez’s wife, who is also a citizen of Mexico, is a uterine cancer survivor and is currently in remission. Their younger son was diagnosed with an eye condition called red light reflex, and their older son suffers from earaches. Hernandez works seasonally in construction and as an agricultural worker but does not have a stable income. His children receive Medicaid assistance and food stamps. Hernandez paid income taxes beginning in 2011. He admitted that in 2014 he and his wife filed separate tax returns, each claiming one son as a dependent, and that he did not indicate on his ...

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