September 20, 2016
for Review of an Order of the Board of Immigration Appeals.
BAUER, POSNER, and EASTERBROOK, Circuit Judges.
Miguel Perez-Fuentes, a native and citizen of Mexico, seeks
review of the Board of Immigration Appeals' decision
affirming the denial of his application for cancellation of
removal. See 8 U.S.C. § 1229b(b). The Board
affirmed the denial based on the Immigration Judge's
alternate determination that Perez-Fuentes did not establish
the requisite hardship for cancellation. See 8
U.S.C. § 1229b(b)(1)(D). Perez-Fuentes challenges
several aspects of his hearing. He contends that the IJ
improperly excluded evidence and failed to develop the record
as required by 8 U.S.C. § 1229a(b)(1) and 8 C.F.R.
§ 1240.32(b). We dismiss Perez-Fuentes' petition for
review, in part for lack of jurisdiction, and deny the
remainder of the petition.
entered the United States from Mexico without inspection; the
date of his entry is not clear. Perez-Fuentes came to the
attention of the Department of Homeland Security after
several arrests. On July 19, 2011, DHS served Perez-Fuentes
with a Notice to Appear, charging that he was removable for
being present in the United States without inspection under 8
U.S.C. § 1182(a)(6)(A)(i).
September 13, 2011, Perez-Fuentes proceeded pro se,
but with the aid of an interpreter, at the first hearing. He
testified that he is a parent of a daughter, Esmeralda, who
is a United States citizen. Further, he testified that he
first entered the United States in 1995 for a period of time,
and returned to the United States after a departure sometime
in 1998. After he told the IJ about an arrest, he was
instructed to provide a list of his arrests and the
dispositions, and the court records. The IJ provided
Perez-Fuentes with an application for cancellation of removal
and informed him of the requirements.
November 22, 2011, Perez-Fuentes conceded removability and
filed an application for cancellation of removal.
See 8 U.S.C. § 1229b(b). Cancellation of
removal is a discretionary form of relief available to
certain nonpermanent residents. To qualify, an applicant must
meet four statutory criteria: he must establish continuous
physical presence for ten years immediately preceding the
date of his application; have "good moral
character" during that period; show he was not convicted
of certain offenses; and, prove that his removal would
"result in exceptional and extremely unusual
hardship" to a qualifying relative. 8 U.S.C. §
1229b(b)(1). The applicant has the burden of establishing
each of these criteria. Adame v. Holder, 762 F.3d
667, 669 (7th Cir. 2014). Finally, even if the applicant
satisfies these conditions, the IJ retains discretion to
grant or deny the application. 8 U.S.C. § 1229b(b)(1);
see also Adame, 762 F.3d at 670-71 ("[T]he IJ
'may cancel removal'; it does not say that
the judge must do so.").
four continuances over an 18-month period, the IJ held the
final hearing on the merits of Perez-Fuentes' application
on January 28, 2013. Perez-Fuentes testified in support of
his application. Among other questions, the IJ asked
Perez-Fuentes, "Okay, well, what hardships do you feel
your daughter would face if, if you had to leave the United
States?" Perez-Fuentes testified that he financially
supported his daughter and she would need money for clothes
and food. He also testified that his daughter was in good
health. The IJ asked Perez-Fuentes about whether his
girlfriend, Raquel Ochoa-an undocumented non-citizen and the
mother of Perez-Fuentes' daughter-would move to Mexico
with him and about her work history. After several other
questions regarding his daughter and Ochoa, the IJ inquired
further: "Well, do you think your child would face any
hardships other than financial hardships if you had to
leave?" Perez-Fuentes answered, "Well, yes, because
she's still very little, but even being little she's
very close to me."
Perez-Fuentes had two witnesses testify and provided various
documents, including tax returns and seven untranslated
written statements. Perez-Fuentes called Blanca Ruiz to
testify as a character witness on his behalf. Ruiz is the
wife of Miguel Ruiz, a former employer of Perez-Fuentes.
called Ochoa to testify on his behalf. The IJ asked Ochoa
several questions, including questions about the number of
children she had with Perez-Fuentes, the age of their
daughter, whether their daughter was in good health, and
whether she would stay with him if he was required to depart.
Ruiz and Ochoa's testimony, the IJ asked Perez-Fuentes
whether he had any other witnesses. Perez-Fuentes said that
he did, "but not anybody that... kn[ew] [him] as well as
[Ruiz and Ochoa]."
conclusion of the hearing, the IJ denied Perez-Fuentes'
application, and ordered him removed to Mexico. The IJ found
that Perez-Fuentes "failed to meet any of the
requirements necessary for cancellation of removal, "
and that he did not merit cancellation of removal as a matter
of discretion. As to the physical presence requirement, the
IJ noted that Perez-Fuentes testified that he arrived in
1997, but that at a previous hearing he stated that he
returned to Mexico in 1998. The IJ concluded ...