Gabriel Treto-Diaz v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-4164
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Gabriel Treto-Diaz; Margarita *
Treto-Ribera, *
*
Petitioners, *
* Petition for Review of an
v. * Order from the Board
* of Immigration Appeals.
1
Michael B. Mukasey, U.S. Attorney *
General, * [UNPUBLISHED]
*
Respondent. *
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Submitted: February 28, 2008
Filed: March 10, 2008
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Gabriel Treto-Diaz and Margarita Treto-Ribera petition for review of an order
of the Board of Immigration Appeals (BIA) denying their motion to reconsider an
earlier decision affirming the immigration judge’s (IJ) decision finding that petitioners
did not meet the hardship requirement for cancellation of removal. For reversal,
1
Michael B. Mukasey has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
petitioners assert the agency violated their right to due process by failing to give
sufficient consideration to their arguments.
We note that the order petitioners asked the BIA to reconsider--its discretionary
decision that petitioners failed to qualify for cancellation of removal--was itself
unreviewable. Therefore, we conclude that we also lack jurisdiction to review the
BIA’s denial of petitioners’ motion to reconsider. See 8 U.S.C. § 1229b(b)
(cancellation-of-removal eligibility requirements for nonpermanent residents); 8
U.S.C. § 1252(a)(2)(B) (no court shall have jurisdiction to review any discretionary
judgment regarding granting relief under, inter alia, § 1229b); Zacarias-Velasquez v.
Mukasey, 509 F.3d 429, 434 (8th Cir. 2007) (whether alien meets exceptional-and-
extremely-unusual-hardship threshold is “precisely the discretionary determination
that Congress shielded from our review” under § 1252(a)(2)(B)); cf. Rodriguez v.
Ashcroft, 253 F.3d 797, 800 (5th Cir. 2000) (if appellate court is divested of
jurisdiction to review original hardship decision, it must also be divested of
jurisdiction to review denial of motion to reopen; “to hold otherwise would create a
loophole that would thwart the clear intent of Congress that the courts not review the
discretionary decisions of the BIA”).
Although petitioners purport to raise a due process challenge to the BIA’s order,
see Munoz-Yepez v. Gonzales, 465 F.3d 347, 351 (8th Cir. 2006) (appeals court has
jurisdiction to review constitutional claims raised in petition for review), we conclude
their challenge merely attacks the substance of the BIA’s decision, see Meraz-Reyes
v. Gonzales, 436 F.3d 842, 843 (8th Cir. 2006) (per curiam) (although appellate
review includes constitutional challenges, “a petitioner may not create the jurisdiction
that Congress chose to remove simply by cloaking an abuse of discretion argument
in constitutional garb”) (quoting Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.
2001)); see also Saloum v. U.S. Citizenship & Immigration Servs., 437 F.3d 238, 243-
44 (2d Cir. 2006) (per curiam) (alien’s invocation of due process language in petition
for review of discretionary denial of removal relief did not allege colorable
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constitutional violation; alien did not allege denial of full and fair hearing or that he
was otherwise denied due process, but only alleged that IJ erred in weighing evidence
and reached wrong outcome).
Accordingly, we deny the petition.
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