JAVIER HERNANDEZ-MORALES, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA
No. 19-3000
United States Court of Appeals for the Third Circuit
September 2, 2020
On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. 205-829-343). Immigration Judge: John B. Carle. Submitted Under Third Circuit L.A.R. 34.1(a) on July 7, 2020. Before: McKEE, BIBAS, and FUENTES,
OPINION*
BIBAS, Circuit Judge.
Litigants often dress up factual findings and discretionary decisions as constitutional violations. But calling an issue constitutional does not make it so. Because the issues in this immigration appeal do not sound in due process, we will dismiss for lack of jurisdiction.
Javier Hernandez-Morales is a native and citizen of Mexico. He entered the United States illegally in 1995. He and his wife are separated, but they share custody of their two daughters, who are U.S. citizens. During the week, the daughters live with their father, who rented an apartment in a well-regarded school district so they could go to school there. He has had a successful career as a chef, working at the same restaurant for fifteen years and rising to become a supervisor. But his record is checkered, as he was convicted of simple assault on his wife and of driving under the influence.
After his assault conviction, the Government began proceedings to remove Hernandez-Morales. He conceded removability but sought cancellation of removal.
We lack jurisdiction to review discretionary denials of relief under
First, Hernandez-Morales argues that the immigration judge‘s “use of conjecture” violated due process. Pet‘r‘s Br. 8–9. He challenges the immigration judge‘s finding that his wife could take over his lease and keep their daughters in their current school. But a challenge to an agency‘s factual findings raises no constitutional claim. See Cospito v. Att‘y Gen., 539 F.3d 166, 170 (3d Cir. 2008). Calling it a due process challenge does not make it so.
Second, Hernandez-Morales objects to how the immigration judge weighed his moral character. Because the judge found “no dispute” that he had good moral character but then denied relief based in part on his criminal convictions, he argues that the judge “created a conflicted record” for the Board. App. 4, 7; Pet‘r‘s Br. 9. This too is not a constitutional claim, but rather an unreviewable objection to the judge‘s exercise of discretion. See Cospito, 539 F.3d at 170.
As a fallback, Hernandez-Morales argues that the judge‘s and Board‘s weighing of the hardship factors raises at least a mixed question of law and fact. In Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067–68 (2020). The Court held that we may do so under
Hernandez-Morales also errs in relying on our decision in Pareja v. Attorney General, 615 F.3d 180 (3d Cir. 2010). There, we remanded part of a case to determine whether the Board had incorrectly required the petitioner to show hardship by applying “an impermissible factor” at odds with
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“[A] party may not dress up a claim with legal clothing to invoke this Court‘s jurisdiction.” Pareja, 615 F.3d at 187. Hernandez-Morales does just that.