Garcia Vasquez v. Attorney General of the United States , 418 F. App'x 104 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-1553
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JULIO ALBERTO GARCIA VASQUEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-638-752)
Immigration Judge: Honorable Henry S. Dogin
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 2, 2011
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed March 3, 2011)
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OPINION
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PER CURIAM
Before us is a petition for review of an order of the Board of Immigration Appeals
(“BIA”) affirming the denial of Petitioner‟s application for cancellation of removal. We
conclude that we lack jurisdiction to consider Petitioner‟s challenge to the agency‟s
discretionary determination regarding his claim of hardship.
I.
Julio Alberto Garcia Vasquez, a native and citizen of Guatemala, entered the
United States without inspection in 1994. Vasquez conceded removability in a hearing
before an Immigration Judge (“IJ”) in 2008, but sought cancellation of removal based on
hardship to his young son. He testified that he supported the boy and the boy‟s mother,
who are both United States citizens. Administrative Record (“AR”) at 142-43. He also
testified that the child‟s mother worked full-time, his son was in good health, the boy‟s
maternal grandmother helped care for him, and his son would remain with his mother in
the United States if Vasquez were removed to Guatemala. AR at 146-51. The IJ denied
the request for cancellation of removal, concluding that Vasquez had not met “anything
remotely resembling the standard of exceptional and extremely unusual hardship.” AR at
92. Although he acknowledged the emotional hardship of leaving a son behind, the IJ
noted that that was not enough to meet the standard. AR at 93. The BIA affirmed this
decision, and Vasquez filed a timely petition for review. On appeal, Vasquez challenges
the IJ‟s hardship determination.
II.
An alien who is removable from the United States is eligible for cancellation of
removal if he can show, among other things, “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.
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§ 1229b(b)(1)(D). In this case, the IJ determined that Vasquez failed to establish
“exceptional and extremely unusual hardship” to his young son. We do not have
jurisdiction to review certain discretionary decisions under the Immigration and
Nationality Act. See 8 U.S.C. § 1252(a)(2)(B)(i). This includes the decision whether an
alien meets the hardship requirement in § 1229b. See Mendez-Moranchel v. Ashcroft,
338 F.3d 176, 179 (3d Cir. 2003). We may, however, review “constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(D). Vasquez contends that his appeal is based
on questions of law. We disagree.
Vasquez claims that the IJ‟s decision deprives his son “of his due process and
constitutional rights to receive medical and special services because of his hearing
problems.” Pet. Br. at 4. But he presents no argument or legal authority in support of
this claim. The assertion of a due process violation, standing alone, is insubstantial and
does not amount to a colorable constitutional claim. See Pareja v. Att‟y Gen., 615 F.3d
180, 186 (3d Cir. 2010) (explaining that jurisdiction under § 1252(a)(2)(D) is limited to
“colorable” claims, and that a claim is not colorable if it is “wholly insubstantial and
frivolous”). As we have stated, “a party may not dress up a claim with legal clothing to
invoke this Court‟s jurisdiction.” Id. at 187. Furthermore, there is no basis in the record
for this claim. Although his brief states that Vasquez based his cancellation of removal
application on his son Michael‟s hearing problems and provided supporting
documentation, Pet. Br. at 2, there is no documentation for the claim in the record and no
testimony regarding hearing problems. On the contrary, Vasquez testified that his son –
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named Jeffrey, not Michael – was in good health. Therefore, the claim appears to be
wholly insubstantial and frivolous, and we lack jurisdiction to review it.
Vasquez also claims that the IJ failed to follow BIA precedent when conducting
the hardship evaluation because he failed to consider the hardship factors in the
aggregate. Pet. Br. at 4-6. He further argues that the IJ engaged in mere speculation
when he concluded that the loss of economic support from Vasquez would be offset by
the mother‟s return to the workforce after she completed her education. Id. at 6.
Although Vasquez asserts that the IJ misapplied a legal standard, his claim actually
challenges the weight the IJ accorded the economic hardship factor. We have previously
held that claims like these, i.e., claims that an IJ ignored factors or failed to evaluate them
in the aggregate, do not raise questions of law and “amount to nothing more than
„quarrels over the exercise of discretion.‟” See Cospito v. Att‟y Gen., 539 F.3d 166, 170
(3d Cir. 2008) (citation omitted). Because Vasquez‟ claim involves only the IJ‟s
discretionary decision regarding hardship, we do not have jurisdiction to review it.
Finally, we note that Vasquez did not raise on appeal to the BIA his due process
claim or his claim that the IJ failed to consider the hardship factors in the aggregate. This
failure to exhaust administrative remedies is yet another basis for finding that we lack
jurisdiction to review Vasquez‟ petition. See 8 U.S.C. § 1252(d)(1); Abdulrahman v.
Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).
Accordingly, we will dismiss Vasquez‟ petition for review.
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