William Penafiel Diaz v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________ No. 21-2910 ______________ WILLIAM ROBERTO PENAFIEL DIAZ, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of a Decision of the Board of Immigration Appeals (Agency No. A208-000-683) Immigration Judge: Mirlande Tadal _________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on June 7, 2022 Before: AMBRO, FUENTES, and RENDELL, Circuit Judges (Filed: August 24, 2022) ______________ OPINION* ______________ * This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. FUENTES, Circuit Judge. William Roberto Penafiel Diaz petitions for review of a decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen on discretionary hardship grounds. Because we lack subject matter jurisdiction to review the BIA’s decision and Penafiel Diaz has not raised any colorable constitutional claims or questions of law, we will dismiss the petition for lack of jurisdiction. I. Penafiel Diaz is a native and citizen of Ecuador who first entered the United States without inspection in February 2004. In July 2018, the Department of Homeland Security started removal proceedings against Penafiel Diaz, charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States without having been admitted or paroled. He conceded removability and applied for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”), as well as cancellation of removal. Penafiel Diaz eventually withdrew his application for asylum, withholding of removal and CAT relief, and proceeded only on his cancellation of removal application. In March 2020, Penafiel Diaz appeared before the Immigration Judge (“IJ”) for a hearing on his cancellation of removal application.1 He testified that he lived with his partner, Tanya, and their two U.S.-citizen children, ages one and seven. When asked how his children would suffer if he were removed to Ecuador, Penafiel Diaz responded that 1 Penafiel Diaz appeared before the IJ via video from Essex County Jail where he was detained for aggravated assault, in violation of New Jersey Statutes §§ 2C:12-1B(1) and 2C:5-2. 2 “[t]hey would first suffer a lot emotionally. Second economically because their mom does not have the capacity to . . . support them because she makes very little money.”2 Penafiel Diaz also testified, in relevant part, that his oldest daughter was taking medication because she “tried to commit suicide with a knife.”3 At the conclusion of the hearing, the IJ issued an oral decision finding Penafiel Diaz removable as charged and ineligible for cancellation of removal. Although he found Penafiel Diaz to be credible,4 the IJ determined that he had failed to demonstrate that his removal would result in exceptional and extremely unusual hardship to a qualifying relative. Thus, the IJ denied Penafiel Diaz’s application for cancellation of removal and ordered him removed to Ecuador. Penafiel Diaz timely appealed the IJ’s decision to the BIA. The BIA affirmed without opinion. Penafiel Diaz did not petition this Court for review of that decision. However, …

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