Ruiz-De La Cruz v. Attorney General of the United States , 423 F. App'x 219 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4722
___________
ALEX DANIEL RUIZ-DE LA CRUZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A088-742-107)
Immigration Judge: Honorable Henry Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 6, 2011
Before: SCIRICA, FISHER and ALDISERT, Circuit Judges
(Filed: April 12, 2011)
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OPINION OF THE COURT
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PER CURIAM.
Alex Ruiz-De La Cruz (“Ruiz”) petitions for review of a final order entered by the
Board of Immigration Appelas (“BIA”), which dismissed his appeal of an immigration
judge’s (“IJ”) denial of his application for cancellation of removal. For the following
reasons, we will grant the Government’s motion to dismiss the petition for lack of
jurisdiction.
Ruiz is a native and citizen of Guatemala. He entered the United States in 1995 as
a lawful nonimmigrant visitor. He overstayed his visa and, in February 2008, the
Government instituted removal proceedings against him. He conceded removability, but
requested cancellation of removal under 8 U.S.C. § 1229b(b)(1), alleging that his removal
would result in an exceptional and extremely unusual hardship to his three-year old son.
At an October 2008 hearing, Ruiz testified that he lives with his wife, who is a citizen of
Panama in the United States illegally, and his son, who is a United States citizen. At the
time of the hearing, his wife was pregnant with the couple’s second child. Ruiz testified
that both he and his wife worked, but that he provided most of the financial support for
the household. He also provides financial support to his two children—one also a United
States citizen—living in Guatemala with their mother. He further stated that removal to
Guatemala would result in his separation from his wife, son, and unborn child. Finally,
he testified that he would make less money in Guatemala and thus would be unable to
continue to financially support his children.
The IJ considered the family’s circumstances but found that Ruiz’s removal, while
creating an economic hardship, would not constitute exceptional and extremely unusual
hardship to the three-year old son.1 The IJ denied Ruiz’s application for cancellation of
removal and granted his alternative request for voluntary departure. The BIA agreed with
The IJ also found that Ruiz’s removal would not constitute a hardship to his older
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daughter, the United States citizen who is living in Guatemala with her mother. Ruiz
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the IJ, finding that Ruiz had failed to meet his burden of establishing that the hardship for
his son rises to the level of exceptional and extremely unusual hardship. Ruiz filed a
timely petition for review.
While we ordinarily have jurisdiction to review a final order of removal under 8
U.S.C. § 1252(a)(1), Congress has also provided that “no court shall have jurisdiction to
review [. . .] any other decision or action of the Attorney General the authority for which
is specified under this subchapter [8 U.S.C. §§ 1151-1378] to be in the discretion of the
Attorney General.” 8 U.S.C. § 1252(a)(2)(B). While we retain jurisdiction to review
constitutional claims and questions of law raised in a petition for review, Sukwanputra v.
Gonzales, 434 F.3d 627, 634 (3d Cir. 2006); 8 U.S.C. § 1252(a)(2)(D), this jurisdiction is
“narrowly circumscribed,” Jarbough v. Attorney Gen. of the United States, 483 F.3d 184,
188 (3d Cir. 2007).
The Attorney General (through the BIA and the IJ) may grant cancellation of
removal to an alien who, inter alia, “establishes that 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.” 8 U.S.C. §
1229b(b)(1)(D). We have held that the decision whether an alien has established an
“exceptional and extremely unusual hardship” is a discretionary decision not subject to
judicial review. Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003).
Thus, we may not disturb the BIA’s decision affirming the IJ’s finding that Ruiz did not
does not challenge this finding.
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make the required showing for cancellation of removal under § 1229b(b)(1).
Here, the sole issue raised in Ruiz’s brief is “whether the Immigration Judge (“IJ”)
erred in denying petitioner’s eligibility for cancellation of removal under the standards
enunciated by the Board of Immigration Appeals in this case.” Although he couches his
argument in constitutional terms by alleging that the three-year old son’s due process
rights would be violated if Ruiz were removed, his argument is essentially a claim that
the IJ erred in its consideration of Ruiz’s hardship factors. This is precisely the kind of
claim for which we lack jurisdiction. “A party cannot confer jurisdiction on this Court
where none exists simply by attaching a particular label to the claim raised in a petition
for review.” Cospito v. Attorney Gen. of the United States, 539 F.3d 166, 170 (3d Cir.
2008).
Accordingly, we grant the Government’s motion and will dismiss the petition for
review for lack of jurisdiction.
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