Abel Delgadillo v. Eric Holder, Jr. , 446 F. App'x 611 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1076
ABEL RUBIO DELGADILLO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 2, 2011 Decided: September 13, 2011
Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
H. Glenn Fogle, Jr., THE FOGLE LAW FIRM, LLC, Atlanta, Georgia,
for Petitioner. Tony West, Assistant Attorney General, Thomas
B. Fatouros, Senior Litigation Counsel, Jeffrey R. Meyer, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Abel Rubio Delgadillo petitions for review of an order
of the Board of Immigration Appeals denying his motion for
reconsideration and his motion to reopen. Delgadillo’s request
for cancellation of removal under 8 U.S.C. § 1229b(b)(1) (2006)
was denied because he failed to show that his removal would
result in “exceptional and extremely unusual hardship” to his
two United States citizen children. We deny the petition for
review.
Under 8 U.S.C. § 1252(a)(2)(B)(i) (2006), entitled
“Denials of discretionary relief,” “no court shall have
jurisdiction to review any judgment regarding the granting of
relief under section . . . 1229b,” which is the section
governing cancellation of removal. See Obioha v. Gonzales, 431
F.3d 400, 405 (4th Cir. 2005) (“It is quite clear that the
gatekeeper provision [of § 1252(a)(2)(B)(i)] bars our
jurisdiction to review a decision of the BIA to actually deny a
petition for cancellation of removal or the other enumerated
forms of discretionary relief.”). “[A]n ‘exceptional and
extremely unusual hardship’ determination is a subjective,
discretionary judgment that has been carved out of appellate
jurisdiction.” Romero-Torres v. Ashcroft, 327 F.3d 887, 888
(9th Cir. 2003). Indeed, this court has concluded that the
issue of hardship is committed to agency discretion and thus is
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not subject to appellate review. Okpa v. INS, 266 F.3d 313, 317
(4th Cir. 2001).
Likewise, this court lacks jurisdiction, except as
noted in 8 U.S.C. § 1252(a)(2)(D), to review orders denying
motions to reconsider the denial of a request for cancellation
of removal. Jean v. Gonzales, 435 F.3d 475, 481 (4th Cir. 2006)
(“When the BIA refuses to reconsider the discretionary denial of
relief under one of the provisions enumerated in 1252(a)(2)(B) —
a decision which is not subject to review in the first place —
the court will not have jurisdiction to review that same denial
merely because it is dressed as a motion to reconsider.”).
However, this court does have jurisdiction over constitutional
claims and questions of law. 8 U.S.C. § 1252(a)(2)(B)(i), (D).
Jean, 435 F.3d at 480.
Because Delgadillo does not raise a constitutional
claim or a question of law regarding the denial of the motion to
reconsider, we lack jurisdiction and dismiss the petition for
review from that part of the Board’s order.
This court reviews the denial of a motion to reopen
for abuse of discretion. 8 C.F.R. § 1003.2(a) (2011); see
INS v. Doherty, 502 U.S. 314, 323-24 (1992); Mosere v. Mukasey,
552 F.3d 397, 400 (4th Cir. 2009). The Board’s “denial of a
motion to reopen is reviewed with extreme deference, given that
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motions to reopen are disfavored because every delay works to
the advantage of the deportable alien who wishes merely to
remain in the United States.” Sadhvani v. Holder, 596 F.3d 180,
182 (4th Cir. 2009) (internal quotation marks omitted). This
court will reverse a denial of a motion to reopen “only if it is
arbitrary, irrational, or contrary to law.” Mosere, 552 F.3d at
400 (internal quotation marks omitted).
This court has recognized three independent grounds on
which a motion to reopen removal proceedings may be denied:
“(1) the alien has not established a prima facie case for the
underlying substantive relief sought; (2) the alien has not
introduced previously unavailable, material evidence; and
(3) where relief is discretionary, the alien would not be
entitled to the discretionary grant of relief.” Onyeme v. INS,
146 F.3d 227, 234 (4th Cir. 1998) (citing INS v. Abudu, 485 U.S.
94, 104-05 (1988)). We conclude that the Board did not abuse
its discretion finding that Delgadillo failed to establish a
prima facie case for cancellation of removal and we deny the
petition for review from that portion of the Board’s order.
Accordingly, we dismiss in part and deny in part the
petition for review. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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