Kodjo v. Mukasey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1578
DANIEL DESIRE TEBA KODJO,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A74-996-440)
Submitted: February 27, 2008 Decided: March 10, 2008
Before WILKINSON and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Linda A. Dominguez, L A DOMINGUEZ LAW, LLC, Baltimore, Maryland,
for Petitioner. Peter D. Keisler, Assistant Attorney General,
Michelle G. Latour, Assistant Director, Sunah Lee, Trial Attorney,
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Unpublished opinions are not binding precedent in this circuit.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:
Daniel Desire Teba Kodjo, a native and citizen of the
Ivory Coast, petitions for review of a decision of the Board of
Immigration Appeals (“Board”) affirming the immigration judge’s
finding that Kodjo is removable and denying his applications for
cancellation of removal under 8 U.S.C.A. § 1229b(b) (West 2005 &
Supp. 2007). We dismiss in part and deny in part Kodjo’s petition
for review.
Under 8 U.S.C.A. § 1252(a)(2)(B)(i) (West 2005), this
court has no jurisdiction to review an administrative decision to
grant or deny cancellation of removal under 8 U.S.C.A. § 1229b(b).
See Jean v. Gonzales, 435 F.3d 475, 479-80 (4th Cir. 2006) (holding
that, under § 1252(a)(2)(B)(i), (D), court has no jurisdiction
over any aspects of denial of relief under § 1229b except
constitutional claims or questions of law); Obioha v. Gonzales, 431
F.3d 400, 405 (4th Cir. 2005) (“It is quite clear that the
gatekeeper provision bars our jurisdiction to review a decision of
the B[oard] to actually deny a petition for cancellation of removal
or the other enumerated forms of discretionary relief.”). Whether
an alien has proved the requisite degree of hardship under § 1229b
is not a constitutional claim or question of law. Barco-Sandoval
v. Gonzales, __ F.3d __, __, 2008 WL 375988, at *4 (2d Cir. Jan.
25, 2008); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221-22
(11th Cir. 2006); Martinez-Maldonado v. Gonzales, 437 F.3d 679, 682
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(7th Cir. 2006); Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30
(9th Cir. 2005). In fact, it is the precise discretionary decision
that Congress has shielded from review. Zacarias-Velasquez v.
Mukasey, 509 F.3d 429, 434 (8th Cir. 2007); Meraz-Reyes v.
Gonzales, 436 F.3d 842, 843 (8th Cir. 2006). Therefore, we must
dismiss Kodjo’s petition for review to the extent that it
challenges this decision.
Under 8 U.S.C.A. § 1252(a)(2)(D), we do have jurisdiction
over constitutional claims and questions of law. Kodjo asserts
that he was denied due process of law because his counsel before
the immigration judge rendered ineffective assistance. We find
that Kodjo cannot state a colorable due process violation because
he has no property or liberty interest in his request for
cancellation of removal. See Dekoladenu v. Gonzales, 459 F.3d 500,
508 (4th Cir. 2006) (“No property or liberty interest can exist
when the relief sought is discretionary.”), petition for cert.
filed, 75 U.S.L.W. 3530 (U.S. Mar. 22, 2007) (No. 06-1285); Smith
v. Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002) (holding absence of
liberty or property interest in the discretionary relief of waiver
of deportation is “fatal to [an alien’s] due process claim”).
Cancellation of removal clearly is a form of discretionary relief,
8 U.S.C.A. § 1252(a)(2)(B); Jean, 435 F.3d at 479, 482, and
therefore, will not support a due process claim.
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Accordingly, we dismiss Kodjo’s petition for review to
the extent it challenges the Board’s discretionary denial of
cancellation of removal. We deny the petition for review as to
Kodjo’s due process claim. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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