Javier Hernandez-Morales v. Attorney General United States ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-3000
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JAVIER HERNANDEZ-MORALES,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
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On Petition for Review of an Order of the Board of Immigration Appeals
(Agency No. 205-829-343)
Immigration Judge: John B. Carle
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Submitted Under Third Circuit L.A.R. 34.1(a)
on July 7, 2020
Before: McKEE, BIBAS, and FUENTES, Circuit Judges
(Filed: September 2, 2020)
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OPINION*
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BIBAS, Circuit Judge.
Litigants often dress up factual findings and discretionary decisions as constitutional
violations. But calling an issue constitutional does not make it so. Because the issues in
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
this immigration appeal do not sound in due process, we will dismiss for lack of jurisdic-
tion.
Javier Hernandez-Morales is a native and citizen of Mexico. He entered the United
States illegally in 1995. He and his wife are separated, but they share custody of their two
daughters, who are U.S. citizens. During the week, the daughters live with their father, who
rented an apartment in a well-regarded school district so they could go to school there. He
has had a successful career as a chef, working at the same restaurant for fifteen years and
rising to become a supervisor. But his record is checkered, as he was convicted of simple
assault on his wife and of driving under the influence.
After his assault conviction, the Government began proceedings to remove Hernandez-
Morales. He conceded removability but sought cancellation of removal. 8 U.S.C. § 1229b.
The immigration judge denied his application, finding that he was ineligible because his
removal would not cause his daughters “exceptional and extremely unusual hardship.”
§ 1229b(b)(1)(D). Even if he were eligible, the judge held, Hernandez-Morales would not
merit cancellation of removal because of his criminal convictions. Hernandez-Morales ap-
pealed to the Board of Immigration Appeals. The Board dismissed the appeal on the hard-
ship ground and did not reach his criminal record.
We review the Board’s opinion, as well as the parts of the immigration judge’s opinion
adopted by the Board. Neema Patel v. Att’y Gen., 599 F.3d 295, 297 (3d Cir. 2010). We
review issues of law and constitutional claims de novo. Dutton-Myrie v. Att’y Gen., 855
F.3d 509, 515 (3d Cir. 2017).
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We lack jurisdiction to review discretionary denials of relief under § 1229b. 8 U.S.C.
§ 1252(a)(2)(B)(i). And whether hardship is “exceptional and extremely unusual” “is a
quintessential discretionary judgment” over which we lack jurisdiction. Mendez-Mo-
ranchel v. Ashcroft, 338 F.3d 176, 178–79 (3d Cir. 2003) (quoting § 1229b(b)(1)(D)); ac-
cord Seemabahen Patel v. Att’y Gen., 619 F.3d 230, 232 (3d Cir. 2010). We also lack
jurisdiction to review the factual findings underlying a denial of § 1229b relief. Dutton-
Myrie, 855 F.3d at 515. But we retain jurisdiction over “constitutional claims or questions
of law.” § 1252(a)(2)(D). So to get review, Hernandez-Morales asserts two due process
violations. Neither is in fact a constitutional claim.
First, Hernandez-Morales argues that the immigration judge’s “use of conjecture” vio-
lated due process. Pet’r’s Br. 8–9. He challenges the immigration judge’s finding that his
wife could take over his lease and keep their daughters in their current school. But a chal-
lenge to an agency’s factual findings raises no constitutional claim. See Cospito v. Att’y
Gen., 539 F.3d 166, 170 (3d Cir. 2008). Calling it a due process challenge does not make
it so.
Second, Hernandez-Morales objects to how the immigration judge weighed his moral
character. Because the judge found “no dispute” that he had good moral character but then
denied relief based in part on his criminal convictions, he argues that the judge “created a
conflicted record” for the Board. App. 4, 7; Pet’r’s Br. 9. This too is not a constitutional
claim, but rather an unreviewable objection to the judge’s exercise of discretion. See Co-
spito, 539 F.3d at 170.
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As a fallback, Hernandez-Morales argues that the judge’s and Board’s weighing of the
hardship factors raises at least a mixed question of law and fact. In Guerrero-Lasprilla v.
Barr, the Supreme Court considered whether, when reviewing an order of removal, a court
of appeals could review the application of equitable tolling’s due-diligence requirement to
“undisputed or established facts.” 140 S. Ct. 1062, 1067–68 (2020). The Court held that
we may do so under § 1252(a)(2)(D). Id. at 1067. So Hernandez-Morales argues that we
may review de novo whether he satisfied § 1229b’s hardship requirement. But the facts
here about schooling are disputed. In any case, a disagreement about weighing hardship
factors is a discretionary judgment call, not a legal question. See Galeano-Romero v. Barr,
No. 19-9585, 2020 WL 4458998, at *4 (10th Cir. Aug. 4, 2020).
Hernandez-Morales also errs in relying on our decision in Pareja v. Attorney General,
615 F.3d 180 (3d Cir. 2010). There, we remanded part of a case to determine whether the
Board had incorrectly required the petitioner to show hardship by applying “an impermis-
sible factor” at odds with § 1229b(b)(1)(D). Id. at 196–97. Here, however, Hernandez-Mo-
rales alleges no improper legal factor, but asks us only to reweigh the proper factors and
make our own judgment call. We may not do so. § 1252(a)(2)(B)(i).
* * * * *
“[A] party may not dress up a claim with legal clothing to invoke this Court’s jurisdic-
tion.” Pareja, 615 F.3d at 187. Hernandez-Morales does just that. We appreciate his and
his family’s plight. But because we lack jurisdiction to review his petition, we will
dismiss it.
4