Hernandez-Navarro v. Ashcroft , 122 F. App'x 402 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 28 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID ADOLFO HERNANDEZ-
NAVARRO; ARACELI AVENDANO
FLORES; LUIS RICARDO
HERNANDEZ,
No. 04-9613
Petitioners, (BIA Nos. A70-914-415,
A70-910-678, A70-910-679)
v. (Petition for Review)
JOHN ASHCROFT,
Respondent.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
We have for consideration the government’s motion to dismiss the petition
for review for lack of jurisdiction, and petitioners’ response. We agree that we
lack jurisdiction over the petition for review.
Petitioners are natives and citizens of Mexico who face removal from this
country for having unlawfully entered the United States. They were noticed to
appear for removal proceedings in 2002. They all sought and were denied
cancellation of removal under 8 U.S.C. § 1229b(b)(1).
Because petitioners were noticed to appear after April 1, 1997, this case is
governed by the permanent rules of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.
3009 (Sept. 30, 1996). Under IIRIRA’s permanent rules, we ordinarily lack
jurisdiction to review the denial of cancellation of removal, because it is a
discretionary form of relief. Morales Ventura v. Ashcroft, 348 F.3d 1259,
1261-62 (10th Cir. 2003) (discussing 8 U.S.C. § 1252(a)(2)(B)(i)). We left open
in Morales Ventura whether there might be circumstances in which we have
jurisdiction to consider a “substantial constitutional issue.” Id. at 1262.
Petitioners argue that the time limitations relevant to the “continuous
physical presence” requirement for cancellation of removal are both arbitrary and
less lenient toward illegal aliens than before IIRIRA was passed. See 8 U.S.C.
§ 1229b(d)(2). We are unpersuaded, however, that petitioners’ challenge to the
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expressed will of Congress in § 1229b(d)(2) presents a substantial constitutional
claim. As a result, we lack jurisdiction over petitioners’ petition for review.
The government’s motion to dismiss is granted, and the petition for review
is DISMISSED.
ENTERED FOR THE COURT
PER CURIAM
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