Monterroso-Morales v. Attorney General of the United States ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3457
___________
BENJAMIN MONTERROSO-MORALES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-231-074)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 18, 2011
Before: BARRY, HARDIMAN and COWEN, Circuit Judges
(Opinion filed: May 25, 2011)
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OPINION
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PER CURIAM
Benjamin Monterroso-Morales petitions for review of the Board of Immigration
Appeals‟ (“BIA” or “Board”) final order of removal. The Government has filed a motion
to dismiss the petition for review. For the reasons that follow, we will dismiss it for lack
of subject matter jurisdiction.
I.
Monterroso-Morales, a native and citizen of Guatemala, entered the United States
without inspection in October 1995. In 2007, the Government charged him with
removability for being in the United States without having been admitted or paroled.
Monterroso-Morales admitted the charge and sought cancellation of removal under
Immigration & Nationality Act (“INA”) § 240A(b)(1) [8 U.S.C. § 1229b(b)(1)]1, arguing
that his removal would work an “exceptional and extremely unusual” hardship on his two
United States citizen daughters.
The IJ denied Monterroso-Morales‟ application. She determined that although he
had established the requisite period of physical presence in the United States and good
moral character during that period, he failed to establish exceptional and extremely
unusual hardship to his minor daughters, who will remain in the United States after he is
removed. The BIA dismissed Monterroso-Morales‟ subsequent appeal and he filed a
timely petition for review in this Court.
II.
We have jurisdiction to review final BIA orders under 8 U.S.C. § 1252(a)(1). But
1
This provision provides, in relevant part, that the Attorney General may cancel
the removal of an alien who was continuously present in the United States for at least ten
years before applying, who is of good character, who has not committed certain crimes,
and who has established that removal would result in exceptional and extremely unusual
hardship to the alien‟s spouse, parent, or child, who is a permanent resident or citizen of
the United States. See INA § 240A(b)(1).
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as the parties recognize, that jurisdiction is restricted by 8 U.S.C. § 1252(a)(2)(B)(i),
which limits judicial review of discretionary agency actions. Mendez-Moranchel v.
Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003); Patel v. Att‟y Gen., 619 F.3d 230, 232 (3d
Cir. 2010) (“We lack jurisdiction to review discretionary decisions made pursuant to
8 U.S.C. § 1229b, including „exceptional and extremely unusual‟ hardship
determinations.”). However, we may still review colorable constitutional claims or
questions of law. Patel, 619 F.3d at 232. Dressing a fundamentally discretionary claim
in legal clothing does not grant jurisdiction that would otherwise be proscribed. Pareja v.
Att‟y Gen., 615 F.3d 180, 186-87 (3d Cir. 2010).
Monterroso-Morales argues that the agency erroneously required him to meet a
higher standard of hardship to his daughters by committing the following legal errors: 1)
failing to consider the educational hardship that his older daughter will suffer if he is
removed to Guatemala; 2) failing to consider the “cumulative effect” of the hardship
faced by his daughters; and 3) improperly relying on Matter of Monreal-Aguinaga, 23 I.
& N. Dec. 56 (BIA 2001) to evaluate the circumstances of his case. See Petitioner‟s
Brief (“Pet. Br.”) at 14-21. Monterroso-Morales contends that because of these errors,
the IJ and BIA essentially required him to establish that his daughters would face
“unconscionable hardship,” a standard that is higher than “exceptional and extremely
unusual hardship.” Id. at 19-21.
We have reviewed Monterroso-Morales‟ first two arguments and conclude that his
contentions “amount to nothing more than quarrels over the exercise of discretion and the
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correctness of the factual findings reached by the agency.” See Cospito v. Att‟y Gen.,
539 F.3d 166, 170 (3d Cir. 2008) (addressing arguments that IJ, inter alia, “gave „short
shrift to crucial evidence‟” and “„simply looked at individual factors‟ rather than provide
an evaluation of the factors in the aggregate”) (citation omitted).2 Accordingly, we lack
jurisdiction to consider them. See id. at 171.
Next, Monterroso-Morales argues that the agency‟s “reliance” on Matter of
Monreal-Aguinaga is “misplaced.” Pet. Br. at 17. Specifically, he contends that the IJ
failed to recognize distinctions between his circumstances and those presented in that
case. A review of Monterroso-Morales‟ briefing demonstrates that he is merely asserting
that he met his burden of showing an exceptional hardship. As we indicated earlier, we
lack jurisdiction to review a fundamentally discretionary claim dressed in legal clothing.
Pareja, 615 F.3d at 186-87.
Monterroso-Morales claims that the because the agency‟s committed the
aforementioned legal errors, it effectively required a heightened showing of an
“unconscionable hardship” to his daughters. Pet. Br. at 18-19. However, as we have
explained, we lack jurisdiction to review those claims. Moreover, there is no evidence
2
We nevertheless note that the IJ expressly considered the evidence in the
aggregate. (See Administrative Record (“A.R.”) at 30-31.) Also, contrary to
Monterroso-Morales‟ assertion, both the IJ and BIA examined his testimony regarding
the health, educational, and emotional impact that his removal will have on his daughters,
but concluded that he was unable to meet the standard of “exceptional and extremely
unusual hardship.” (Id. at 3, 23-25, 28-31.) Indeed, the BIA “„is not required to write an
exegesis on every contention,‟ . . . but only to show that it has reviewed the record and
grasped the movant‟s claims.” Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002).
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that the IJ or Board applied anything other than the exceptional and extremely unusual
hardship standard. Indeed, both stated the correct legal standard in their decisions. (A.R.
at 3, 30.) Because Monterroso-Morales has not presented a colorable legal or
constitutional challenge, we must dismiss the claim for lack of jurisdiction.
Lastly, Monterroso-Morales argues that the agency violated his due process rights
when it denied his application for cancellation of removal. Pet. Br. at 21-24.
Monterroso-Morales‟ due process claim is based on the same arguments that he raised as
questions of law. As we have stated, those claims fall outside of our jurisdiction and,
thus his due process challenge is dismissed for the same reasons.
Based on the foregoing, we will grant the Government‟s motion and dismiss the
petition for review for lack of subject matter jurisdiction.
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