Jesus Meraz-Reyes v. John Ashcroft ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1197
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Jesus Meraz-Reyes, *
*
Petitioner, *
* Petition for Review of an Order of
v. * the Board of Immigration Appeals.
*
1
Alberto Gonzales, Attorney General * [PUBLISHED]
of the United States of America, *
*
Respondent. *
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Submitted: December 16, 2005
Filed: February 1, 2006
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Before MELLOY, COLLOTON and BENTON, Circuit Judges.
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PER CURIAM.
Petitioner Jesus Meraz-Reyes, a citizen of Mexico unlawfully present in the
United States, conceded removability and applied for cancellation of removal under
8 U.S.C. § 1229b, or in the alternative, voluntary departure. An immigration judge
denied cancellation of removal but granted voluntary departure with an alternative
order of removal to Mexico. In denying cancellation of removal, the immigration
1
Alberto Gonzales has been appointed to serve as Attorney General of the
United States and is substituted as the appellee pursuant to Federal Rule of Appellate
Procedure 43(c).
judge found that the petitioner failed to establish that his removal would result in an
“extraordinary and extremely unusual hardship” to his eight-year-old, United States-
citizen child. 8 U.S.C. § 1229b(b)(1)(D). The petitioner appealed to the Board of
Immigration Appeals (BIA), and the BIA affirmed.
The petitioner now appeals to our court. He concedes that courts generally lack
jurisdiction to review denials of petitions for cancellation of removal. 8 U.S.C. §
1252(a)(2)(B)(i) (“Notwithstanding any other provision of law . . . no court shall have
jurisdiction to review . . . any judgment regarding the granting of relief under section
. . . 1229b.”); Bropleh v. Gonzalez, 428 F.3d 772, 778 (8th Cir. 2005); Halabi v.
Ashcroft, 316 F.3d 807, 808 (8th Cir. 2003) (per curiam) (“The controlling statute
expressly states that denials of discretionary relief, such as that under 8 U.S.C. §
1229b, are not subject to review by the courts.”). He nevertheless argues that our
court has jurisdiction over his case under an exception to the general rule that would
permit courts to review substantial constitutional challenges to the Immigration and
Nationality Act or administrative proceedings under the act. See 8 U.S.C. §
1252(a)(2)(D) (“Nothing in subparagraph (B) . . . shall be construed as precluding
review of constitutional claims or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accordance with this section.”);
Onyinkwa v. Ashcroft, 376 F.3d 797, 799 n.1 (8th Cir. 2004) (“Several circuits have
suggested that courts retain jurisdiction to review discretionary decisions by
immigration judges if a petitioner has demonstrated a substantial constitutional
violation.”).
Despite arguing in favor of such an exception, the petitioner does not identify
any reviewable claim. He does not argue that the BIA failed to recognize its
discretionary authority or that the BIA relied upon an unconstitutional, discriminatory
factor when exercising its discretion. Rather, the petitioner attacks the BIA
determination that the evidence failed to show an “extraordinary and extremely
unusual hardship.” This finding, however, is precisely the discretionary determination
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that Congress shielded from our review. “‘[A] petitioner may not create the
jurisdiction that Congress chose to remove simply by cloaking an abuse of discretion
argument in constitutional garb.’” Id. (quoting Torres-Aguilar v. INS, 246 F.3d 1267,
1271 (9th Cir. 2001)). Thus, we reject the petitioner's argument and find jurisdiction
lacking in this case.
We deny the petition.
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