Aguilera v. Holder ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 1, 2009
No. 08-60834 Charles R. Fulbruge III
Summary Calendar Clerk
MARIA ARMINDA AGUILERA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97 973 741
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Petitioner Maria Arminda Aguilera, a native and citizen of Mexico, seeks
review of the Board of Immigration Appeals’ (BIA) order that affirmed the
decision by the Immigration Judge (IJ) to deny Aguilera’s application for
cancellation of removal under the Immigration and Nationality Act (INA). For
the reasons set forth below, we dismiss her petition for lack of jurisdiction.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-60834
This Court has statutory jurisdiction to review final orders of removal
under Section 242 of the INA. 8 U.S.C. § 1252. Here, we review the IJ’s findings
and conclusions inasmuch as the BIA’s order summarily affirmed the opinion of
the IJ. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009) (citing Efe v. Ashcroft,
293 F.3d 899, 903 (5th Cir. 2002)). We review the rulings of law de novo and
findings of fact for substantial evidence. See Bolvito v. Mukasey, 527 F.3d 428,
435 (5th Cir. 2008) (quoting Sung v. Keisler, 505 F.3d 372, 375 (5th Cir. 2007)).
Similarly, we review due process challenges de novo. De Zavala v. Ashcroft, 385
F.3d 879, 883 (5th Cir. 2004).
Aguilera contends that her removal would result in exceptional and
extremely unusual hardship to her family, thus satisfying all the statutory
requirements for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Aguilera
asks us to reverse the IJ’s finding that Aguilera did not establish that her
removal would result in exceptional and extremely unusual hardship to her
spouse and child. However, the finding that Aguilera failed to satisfy the
exceptional and extremely unusual hardship requirement for cancellation of
removal is a discretionary determination by the Attorney General. See INA §
240A(b)(1), 8 U.S.C. § 1229b(b)(1) (2006). Prior to the enactment of the REAL
ID Act of 2005, 8 U.S.C. § 1252(a)(2)(B), this Court could have reviewed the
“operative jurisdictional facts” of Aguilera’s petition. But Congress has stripped
us of jurisdiction to review “any judgment regarding the granting of relief under
section . . . 1229b.” § 1252(a)(2)(B); see also The Good, the Bad, and the Ugly: A
Survey of Selected Fifth Circuit Immigration Cases, 41 T EX. T ECH. L. R EV. 989,
996 (2009) (noting that the Real ID Act has “drastically changed the statutory
provisions governing review” and that the INA specifically bars any court review
of discretionary decisions). Instead, we are limited to a review of facts and
issues involving a constitutional claim or question of law. § 1252(a)(2)(D).
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No. 08-60834
Aguilera argues that the BIA’s affirming without opinion denied Aguilera
her due process. In regards to her claim that the BIA failed to review the entire
record, this Court in Soadjede v. Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003),
held that the BIA’s summary affirmance of the IJ’s opinion is not a procedure in
violation of due process because the IJ’s opinion provides the basis for review.
Thus, this argument is without constitutional merit.
Aguilera also maintains that her due process rights were violated by the
IJ’s refusal to consider the hardship resulting to her daughter, a legal
permanent resident, when her cancellation of removal was denied. The IJ,
however, accurately excluded Aguilera’s adult daughter from hardship
consideration because the daughter falls outside the statutory definition of a
child as provided by Congress. See INA § 101(b)(1), 8 U.S.C. § 1101(b)(1) (“The
term ‘child’ means an unmarried person under twenty-one years of age . . .”); see
also INS v. Hector, 479 U.S. 85, 86-89 (1986) (determining that the
Congressional definition for a child in immigration cases is “unusually detailed
and unyielding”). Aguilera has cited no authority that allows an individual who
is twenty-five years old and married to overcome the plain language of the
statute and qualify as a relative that should be considered for cancellation of
removal purposes. Moreover, Aguilera does not have a constitutionally protected
liberty or property interest in obtaining discretionary relief under the Fifth
Amendment because our Court has determined that illegal aliens do not possess
a constitutionally protected right to adjustment of status or eligible discretionary
relief. See, e.g., Manzano-Garcia v. Gonzales, 413 F.3d 462, 471 (5th Cir. 2005)
(citations omitted). Nor does the failure to receive discretionary relief amount
to a constitutionally protected deprivation of a property or liberty interest. See
Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (citations omitted); see also
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006) (citations
omitted).
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No. 08-60834
Aguilera’s assertions do not involve a constitutional claim; instead they
merely ask this Court to replace the IJ’s evaluation of the evidence, especially
the status of Aguilera’s daughter, with a new outcome. This we cannot do. See
Hadwani v. Gonzales, 445 F.3d 798, 800-01 (5th Cir. 2006) (stating that mere
propositions constituting abuse of discretion arguments cannot be cloaked in
constitutional garb and pass as a constitutional claim); see also Torres-Aguilar
v. INS, 246 F.3d 1267, 1271 (5th Cir. 2001) (preventing the petitioner from
establishing jurisdiction by cloaking arguments in constitutional garb).
Aguilera does not raise a constitutional claim or question of law. Her
contention that the IJ did not properly take into account her hardship factors
falls squarely within the jurisdictional bar of § 1252(a)(2)(B). We are without
jurisdiction to review the IJ’s decision.
Therefore, the petition for review is DISMISSED.
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