Reyes v. Attorney General of the United States

IMG-271 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2812
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MARVIN REYES,
a/k/a Marvin Rolando Reyes Mencos,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-650-169)
Immigration Judge: Honorable Susan G. Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 4, 2010
Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges
(Opinion filed August 5, 2010)
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OPINION
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PER CURIAM
Marvin Reyes petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) decision denying his
application for cancellation of removal. For the reasons that follow, we will grant the
government’s motion to dismiss and dismiss the petition for review.
I.
Reyes, a citizen of Guatemala, entered the United States on a non-immigrant visa
in August 1992, and stayed longer than permitted. In September 2007, the government
instituted removal proceedings. Reyes conceded removability but requested cancellation
of removal pursuant to INA § 240A(b)(1) [8 U.S.C. § 1229b(b)(1)] based on his
allegation that his removal would result in exceptional and extremely unusual hardship to
his U.S. citizen child. Reyes testified that his young son suffers from ear infections and
allergies. He testified that if he is removed, his son would accompany him, and he is
concerned that his son would not be able to receive adequate medical attention or
education in Guatemala.
The IJ considered the family’s circumstances, including the son’s medical history,
but found that Reyes’s removal would not constitute exceptional and extremely unusual
hardship to his son. The IJ denied Reyes’s application for cancellation of removal and
granted his alternative application for voluntary departure to Guatemala. Reyes appealed
to the BIA, which affirmed the IJ’s denial, agreeing that Reyes failed to establish
exceptional and extremely unusual hardship. Reyes filed a timely petition for review.
The government filed a motion to dismiss the petition for lack of jurisdiction. A motions
panel of this Court referred the government’s motion to this panel. See I.O.P. 10.3.5.
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II.
Although we have authority to review final orders of removal under 8 U.S.C. §
1252(a)(1), we lack jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to review factual or
discretionary determinations such as whether a petitioner has satisfied the hardship
requirement for cancellation of removal. Mendez-Moranchel v. Ashcroft, 338 F.3d 176,
178 (3d Cir. 2003). We do have jurisdiction, however, to review “constitutional claims or
questions of law” raised in a petition for review. 8 U.S.C. § 1252(a)(2)(D). We do so de
novo, subject to the deference principles set forth in Chevron USA, Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 842-44 (1984). See Wu v. Att’y Gen., 571 F.3d 314,
317 (3d Cir. 2009) (per curiam).
Here, Reyes asserts that the IJ’s and BIA’s decisions failed to consider factors
presented in his case, depriving his son “of his due process and constitutional rights to
receive medical and special services because of his hearing problems.” (Pet. Br. at 3.)
“Petitioners alleging ‘constitutional claims’ under § 1252(a)(2)(D) must, as a threshold,
state a colorable violation of the United States Constitution.” Jarbough v. Att’y Gen., 483
F.3d 184, 189 (3d Cir. 2007). In this case, Reyes’s claim fails to overcome this threshold,
invoking the Due Process Clause in name only. In the immigration context, due process
entitles an alien to “a full and fair hearing and a reasonable opportunity to present
evidence.” Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir. 2006). Reyes fails to
tie to the Due Process Clause the alleged factual error and failure to consider evidence,
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and the record does not indicate that any such errors deprived the petitioner of “notice and
a meaningful opportunity to be heard.” Jarbough, 483 F.3d at 190. Further, such claims
do not constitute questions of law. Id. at 189 (“[C]ourts have recognized arguments such
as that an Immigration Judge or the BIA incorrectly weighed evidence, failed to consider
evidence or improperly weighed equitable factors are not questions of law . . .”).
Accordingly, we may not entertain Reyes’s attempt to present his argument in terms of
the Due Process Clause. See § 1252(a)(2)(B)(i)
Reyes also claims that the BIA did not follow its own precedent by failing to
consider the hardship factors cumulatively in evaluating his application for cancellation
of removal. Whether an agency applies the correct legal standard is a question of law.
Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 2007); Liu v. I.N.S., 508 F.3d 716,
721 (2d Cir. 2007) (per curiam). Here, however, Reyes’ assertion appears only to
challenge the BIA’s exercise of its discretion in determining that he did not meet the
hardship requirement for cancellation of removal. As explained above, we lack
jurisdiction to review that determination. See Mendez-Moranchel, 338 F.3d at 178;
Jarbough, 483 F.3d at 190.
For the above reasons, we will grant the government’s motion and dismiss the
petition for review.
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