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

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 19-3000
_______________
JAVIER HERNANDEZ-MORALES,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA
_______________
On Petition for Review of an
Order of the Board of Immigration Appeals
(Agency No. 205-829-343)
Immigration Judge: John B. Carle
_______________
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)
_________________
Alfonso Caprara
Suite 300
2043 Locust Street
Philadelphia, PA 19103
Counsel for Petitioner
William P. Barr
Vanessa M. Otero
Ilana J. Snyder
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_________________
OPINION OF THE COURT
_________________
BIBAS, Circuit Judge.
Litigants often dress up factual findings and discretionary
decisions as constitutional violations. But calling an issue con-
stitutional does not make it so. Because the issues in this im-
migration appeal do not sound in due process, we will dismiss
for lack of jurisdiction.
Javier Hernandez-Morales is a native and citizen of Mex-
ico. He entered the United States illegally in 1995. He and his
wife are separated, but they share custody of their two daugh-
ters, who are U.S. citizens. During the week, the daughters live
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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 pro-
ceedings to remove Hernandez-Morales. He conceded remov-
ability 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 daugh-
ters “exceptional and extremely unusual hardship.”
§ 1229b(b)(1)(D). Even if he were eligible, the judge held, Her-
nandez-Morales would not merit cancellation of removal be-
cause of his criminal convictions. Hernandez-Morales ap-
pealed to the Board of Immigration Appeals. The Board dis-
missed the appeal on the hardship 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 Pa-
tel 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).
We lack jurisdiction to review discretionary denials of re-
lief under § 1229b. 8 U.S.C. § 1252(a)(2)(B)(i). And whether
hardship is “exceptional and extremely unusual” “is a quintes-
sential discretionary judgment” over which we lack jurisdic-
tion. Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178–79 (3d
Cir. 2003) (quoting § 1229b(b)(1)(D)); accord Seemabahen
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Patel v. Att’y Gen., 619 F.3d 230, 232 (3d Cir. 2010). We also
lack jurisdiction to review the factual findings underlying a de-
nial 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 consti-
tutional claim.
First, Hernandez-Morales argues that the immigration
judge’s “use of conjecture” violated 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 cur-
rent school. But a challenge 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 immigra-
tion 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 ar-
gues 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 Cospito, 539 F.3d at 170.
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 or-
der of removal, a court of appeals could review the application
of equitable tolling’s due-diligence requirement to “undisputed
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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 dis-
agreement about weighing hardship factors is a discretionary
judgment call, not a legal question. See Galeano-Romero v.
Barr, 968 F.3d 1176, 1182–84 (10th Cir. 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 impermissible factor” at odds with
§ 1229b(b)(1)(D). Id. at 196–97. Here, however, Hernandez-
Morales 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 jurisdiction.” Pareja, 615 F.3d at 187. Her-
nandez-Morales does just that. We appreciate his and his fam-
ily’s plight. But because we lack jurisdiction to review his pe-
tition, we will dismiss it.
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