Petitioners Jose Raul Morales Ventura and Maria Veronica Soloria Soloria, husband and wife, are natives and citizens of Mexico who face removal from this country. They seek review of the decision of the Immigration Judge (IJ) that they are not eligible for cancellation of removal. The Board of Immigration Appeals (BIA) dismissed their appeal. Respondent has filed a motion to dismiss this аppeal on the ground that 8 U.S.C. § 1252(a)(2)(B) deprives us of jurisdiction. We agree and grant the motion.
Petitioners are subject to removal because they unlawfully entered the United States. They filed applications for asylum in 1997. On August 29, 1997, the Immigration and Naturalization Service (INS) filed and served Notices to Appear that charged Petitioners with being subject to removal. The Notices alleged that Petitioners had еntered the United States in October 1989 without being admitted or paroled.
Petitioners sought relief under 8 U.S.C. § 1229b(b)(1), which permits the Attorney General to cancel removal of an inadmissible or deportable alien who
(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application;
(B) has been a person оf good moral character during such period;
(C) has not been convicted of [a specified] offense ...; and
(D) establishes that removal would result in exceptional and extremely unusual hardship tо the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.
The IJ determined that Mr. Morales Ven-tura met the requirements set forth under subparagraphs (A), (B), and (C), and that Ms. Soloria Soloria met the requirements of subparagraphs (B) and (C). He further determined, however, that Ms. Soloria So-loria had not proved her physical presence in the United States for 10 continuous years, as required by subparagraph (A), and that neither of the Petitioners had satisfied subparagraph (D).
With respect to subparagraph (D), Petitioners claimed that thеir removal would result in “exceptional and extremely unusual hardship” to Mr. Morales Ventura’s parents and Petitioners’ children. Mr. Morales Ventura’s parents are permanent legal residents who live with Pеtitioners and rely on their son for support. His mother has a knee problem that, according to Mr. Morales Ventura, has prevented her from working. On the other hand, his parents are not elderly and his fathеr works seasonally as a picker. Also, Mr. Morales Ventura has a sister and three brothers in the United States, including one brother who is a United States citizen, works full-time, and owns his own home. The IJ concluded that Mr. Mоrales Ventu-ra’s parents could live with that brother “even though it would be inconvenient and may cause some hardship.”
As for Petitioners’ children, all four were born in this country (between July 1992 and September 1999) and thus аre United States citizens.
See
8 U.S.C. § 1401(a). Petitioners have pointed to the consequences to their children if Petitioners must return to Mexico. In particular, the youngest child has an ear defect for which he will nеed surgery when he is five years old. The IJ stated, however, that Petitioners had failed to show (1) that the condition is serious, (2) that the child would suffer any particular consequences if he is not treated, (3) that the procedure
Petitioners appеaled to the BIA, which held that the IJ had correctly concluded that they had not established exceptional or extremely unusual hardship. The BIA determined that it did not need to address Ms. Soloria Soloria’s claim that she had met the residency requirement, because she would not be eligible for cancellation of removal regardless.
On appeal Petitioners argue that the BIA violated the Constitution in finding that the hardship faced by their children and Mr. Morales Ventura’s parents was not “exceptional and extremely unusual,” compared to that faced by relatives of other removable persons. They contend that the IJ should have considered the United States citizenship of their children and the status of Mr. Morales Ventura’s parents as permanent residents, rather than focusing only on Petitiоners’ national origin, and that their children and his parents were denied due process and equal protection by being classified on the basis of Petitioners’ national origin. They assert that the BIA should have considered the children’s right to pursue the “American Dream” and the extent to which the children have been exposed to, and are accustomed to the benefits of, living in the United States, including eduсational opportunities. Petitioners point to a psychologist’s statement that it would be extremely difficult for the children to adjust to conditions in Mexico. They also note that Mr. Morales Ventura will be able to earn only a fraction of what he makes here and that consequently Ms. Soloria Sobria will have to work too, thereby detracting from her ability to provide a nourishing environment for her children. In addition, they contend that their youngest child's ear defect is a significant factor in the hardship calculus. Finally, Ms. Sobria Sobria argues that the BIA erred in not finding that she had met her burden of showing that she had residеd in the United States continuously for 10 years.
The threshold issue, as Respondent points out in his motion to dismiss, is whether we have jurisdiction to review the BIA’s denial of cancellation. “The IIRI-RA altered the availability, sсope, and nature of judicial review in INS cases.”
Rivera-Jimenez v. INS,
(2) Matters not subject to judicial review
(B) Denials of discretionary relief Notwithstanding any other provision of law, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, оr
(ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) of this title.
Petitioners raise two arguments in support of our jurisdiction to hear their appeal. First, although acknowledging that we lack jurisdiction to review discretionаry decisions denying relief under § 1229b, they contend that determining whether removal would cause “exceptional and extremely unusual hardship” is not a discretionary matter, at least in this case. Second, thеy contend that we have jurisdiction to hear constitutional issues, and that they have raised such issues here. We reject both arguments.
With respect to Petitioners’ first argument, we hold that the hardship issue is a mаtter of discretion. There is no algorithm for determining when a hardship is “exceptional and extremely unusual.” The decision, regarding when hardship has reached that level is a judgment call. In other words, the dеcision requires the exercise of discretion. We held in
Escalera v. INS,
As for Petitioners’ argument that we have jurisdiction to review their claim of constitutional error in the decisions of the BIA and IJ, we leave open whether constitutional concerns might require us to construe § 1252(a)(2)(B)(i) to permit review in some circumstances,
cf. Calcano-Martinez,
There being no applicable exception to the mandate of § 1252(a)(2)(B)(i) in this case, we lack jurisdiction to hear Petitioners’ challenge to the BIA and IJ judgments under § 1229b(b)(1)(D). This moots Ms. Soloria Soloria’s challenge to the decision under § 1229b(b)(1)(A) that she had not been continuously present in this country for 10 years. Even if that decision was erroneоus (and assuming that we would have jurisdiction to review the matter), her failure to satisfy § 1229b(b)(1)(D) would still preclude cancellation of her removal. As this challenge is moot, we have no jurisdiction to resolve it.
See Smith v. Plati,
We GRANT Respondent’s motion and DISMISS Petitioners’ petition for lack of jurisdiction.