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Nunez-Portillo v. Holder

United States Court of Appeals, Eighth Circuit

August 15, 2014

Marco Antonio Nunez-Portillo, Petitioner
v.
Eric H. Holder, Jr., Attorney General of the United States, Respondent

Submitted April 16, 2014.

Petition for Review of an Order of the Board of Immigration Appeals.

For Marco Antonio Nunez-Portillo, Petitioner: Timothy E. Wichmer, Wichmer & Groneck, Saint Louis, MO.

For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Christopher Buchanan, Karen Yolanda Drummond, Carl H. McIntyre, Melissa Lynn Neiman-Kelting, Senior Litigation Counsel, Kelly J. Walls, Trial Attorney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC.

Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.

OPINION

Page 975

KELLY, Circuit Judge.

Marco Nunez-Portillo, a native and citizen of Mexico, petitions for review of the discretionary denial of his application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b). He contends the Board of Immigration Appeals (BIA), in affirming the denial, erred as a matter of law in evaluating his claim and, in doing so, violated his right to due process under the Fifth Amendment. Because we conclude

Page 976

the BIA simply found Nunez-Portillo's evidence insufficient, we deny his petition.

I. Background

Nunez-Portillo first entered the United States from Mexico in January 1998. On May 14, 2009, the Department of Homeland Security served him with a Notice to Appear (NTA), charging him with removability as an alien present without being admitted or paroled. He conceded removability at a master calendar hearing on October 13, 2010, then applied for cancellation of removal. At a hearing on May 18, 2011, he argued his three children, who were born in the United States, would suffer hardship were he removed because they would accompany him to Mexico. There, he contends, they would be unable to access adequate programs and facilities to meet their health and educational needs and would be at risk of danger from widespread violence.

Under 8 U.S.C. § 1229b(b)(1),

The Attorney General may cancel removal of, and adjust to the status of an alien lawfully admitted for permanent residence, an alien who is inadmissible or ...

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