United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-2624 ___________________________ Elzar Rene Orpinel-Robledo, also known as Elzar Rene Opinel lllllllllllllllllllllPetitioner v. Merrick B. Garland, Attorney General of the United States1 lllllllllllllllllllllRespondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: April 13, 2021 Filed: July 19, 2021 ____________ Before LOKEN, WOLLMAN, and STRAS, Circuit Judges. ____________ WOLLMAN, Circuit Judge. Elzar Rene Orpinel-Robledo petitions for review of the Board of Immigration Appeals’ (BIA) denial of his application for cancellation of removal. We deny the petition. 1 Attorney General Garland is substituted as respondent under Federal Rule of Appellate Procedure 43(c)(2). Orpinel-Robledo, a native and citizen of Mexico, entered the United States without inspection in either 1995 or 1996. The Department of Homeland Security initiated removal proceedings against him in 2011. Orpinel-Robledo admitted to being in the United States illegally, but requested cancellation of removal under 8 U.S.C. § 1229b(b)(1), which allows for cancellation of removal if “removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” Orpinel-Robledo claimed that his three children, all of whom are United States citizens, would suffer “exceptional and extremely unusual hardship” if he were removed. Immigration Judge Megan Foote Monsky conducted Orpinel-Robledo’s removal hearing. Judge Monsky was unavailable to complete the decision, however, and the case was re-assigned to Immigration Judge Nancy J. Paul pursuant to 8 C.F.R. § 1240.1(b) (2020). Judge Paul familiarized herself with the complete record of Orpinel-Robledo’s proceedings and found the testimony of Orpinel-Robledo and his two witnesses to be credible. The chief hardships identified by Orpinel-Robledo were separation from his daughters, the likelihood that his oldest daughter would spend less time with his family in the United States, and the uncertainty of his finding work in Mexico. After reviewing the record, Judge Paul found that all of Orpinel-Robledo’s children were healthy and that his school-aged children were “doing well in school.” She determined that his children lived with their respective mothers and step-fathers, who “ensure that they are loved and cared for.” Finding that Orpinel-Robledo was “healthy and capable of finding work in Mexico” with local family members’ assistance, Judge Paul determined that Orpinel-Robledo’s removal would not place “exceptional and extremely unusual hardship” on his children and accordingly denied his application. -2- Orpinel-Robledo appealed Judge Paul’s order to the BIA, arguing that the substitution of immigration judges constituted a violation of his due process rights. The BIA affirmed Judge Paul’s decision, concluding that substitution was proper and that Orpinel-Robledo had not shown that he had suffered any prejudice from the substitution. Orpinel-Robledo now asserts that the substitution of immigration judges violated both the text of the statute and his due process rights. Orpinel-Robledo argues that the statute’s use of “the” before “immigration judge” requires the same immigration judge to conduct both the merits hearing and the decisional process. The statute …
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