Not Precedential

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
___________
No. 13-3073
___________
LUIS ANTONIO MEJIA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A087-944-522)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 6, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
(Opinion filed: April 15, 2014)
___________
OPINION
___________
PER CURIAM
Luis Antonio Mejia, a native and citizen of Guatemala, petitions for review of the
Board of Immigration Appeals (BIA) final order of removal entered on June 10, 2013.
For the reasons that follow, we will dismiss in part and deny in part the petition for
review.
Mejia entered the United States without inspection in 1991. In June 2010, Mejia
was served with a notice to appear, charging him with removability as an alien present in
the United States without having been admitted or paroled. See Immigration and
Nationality Act (INA) 212(a)(6)(A)(i), 8 U.S.C. 1182(a)(6)(A)(i). Represented by
counsel, Mejia conceded the facts in the notice to appear, and an Immigration Judge
(IJ) found him removable as charged.
Mejia subsequently applied for cancellation of removal pursuant to INA
240A(b), 8 U.S.C. 1229b(b). In support of his application, Mejia testified that he has
one daughter who was born in the United States in August 2008. Mejia and his
daughters mother, who is also from Guatemala, separated shortly after the birth.
Pursuant to a court order, Mejia began paying parental support in December 2008.
Mejias daughter lives with her mother and he has visitation once a week.
An alien is eligible for cancellation of removal under INA 240A(b), if he: (1) has
been physically present for a continuous period of not less than ten years; (2) has been a
person of good moral character during that time; (3) has not been convicted of certain
enumerated criminal offenses; and (4) demonstrates that removal would result in
exceptional and extremely unusual hardship to the aliens spouse, parent, or child, who is
a citizen of the United States or a lawful permanent resident. See INA 240A(b)(1)(A)(D), 8 U.S.C. 1229b(b)(1)(A)-(D). Here, the IJ determined that Mejia satisfied the first
2
three requirements but failed to establish that his removal would result in exceptional and
extremely unusual hardship to his U.S.-citizen daughter. Thus, the IJ denied Mejias
application for cancellation of removal and permitted him to voluntarily depart.
Mejia appealed the IJs decision to the BIA, arguing that the IJ incorrectly inferred
that his daughter would remain in the United States with her mother, and consequently
failed to correctly analyze the hardship Mejias daughter would face upon his removal.
Mejia also argued that the IJ failed to consider that his daughters mother was in the
United States illegally and could be removed to Guatemala. The BIA affirmed the IJs
determinations, concluding that the record supported the IJs inferences and that it was
too speculative to consider the potential removal of the daughters mother in the hardship
analysis. Mejia then timely filed a counseled petition for review.
We lack jurisdiction to review the discretionary denial of cancellation of removal.
See INA 242(a)(2)(B)(i), 8 U.S.C. 1252(a)(2)(B)(i); Mendez-Moranchel v. Ashcroft,
338 F.3d 176, 179 (3d Cir. 2003). This includes the determination that Mejia failed to
demonstrate that his U.S.-citizen daughter would suffer exceptional and extremely
unusual hardship in the event of his removal. See id. However, we retain jurisdiction
over constitutional claims or questions of law. INA 242(a)(2)(D), 8 U.S.C.
1252(a)(2)(D). Because the BIA issued its own opinion, we review its decision rather
than the IJs. Li v. Atty Gen., 400 F.3d 157, 162 (3d Cir. 2005). To the extent that the
BIA deferred to or adopted the IJs reasoning, we look to the decision of the IJ.
Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006).
3
In his brief, Mejia advances claims concerning the BIAs allegedly incorrect
interpretation of the hardship analysis. First, Mejia maintains that the BIA misinterpreted
the hardship factors, see In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63-64 (BIA 2011),
by focusing on the present circumstances of his daughter rather than considering the
future circumstances. Mejia argues that as a result of this misinterpretation, the BIA
failed to consider the hardship his daughter would face in the country of return. We have
jurisdiction over this claim because Mejia is arguing that the BIA misinterpreted the
language of INA 240A(b)(1)(D), 8 U.S.C. 1229b(b)(1)(D). See, e.g., Pareja v. Atty
Gen., 615 F.3d 180, 188 (3d Cir. 2010). For this argument, Mejia relies on Figueroa v.
Mukasey, in which the United States Court of Appeals for the Ninth Circuit held that the
hardship analysis is a future-oriented analysis, not an analysis of . . . present conditions.
543 F.3d 487, 497 (9th Cir. 2008). Mejias argument that the BIA did not perform a
future-oriented analysis is unsupported by the record. The IJ considered the economic
and emotional difficulty Mejias daughter would suffer in the future due to his removal,
and concluded that the daughter suffered from no medical or educational challenges that
would render those difficulties exceptional and extremely unusual. Administrative
Record at 64-65. The IJ found nothing in the record that indicated exceptional or unusual
future hardships were likely to arise. Consequently, the BIA properly interpreted and
applied the hardship factors.
Related to Mejias claim that the BIA misinterpreted the hardship factors is his
assertion that the BIA incorrectly assumed that his daughter would remain in the United
4
States with her mother and not accompany him to Guatemala. However, this argument
does not rely on an allegation that the BIA made a hardship determination based on an
erroneous legal standard or on fact-finding which is flawed by an error of law,
Pareja, 615 F.3d at 188 (quoting Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009)),
but instead challenges the factual findings made by the BIA. We will dismiss this claim
because our jurisdiction does not extend to challenges concerning the BIAs factual and
discretionary determinations. See Cospito v. Atty Gen., 539 F.3d 166, 170 (3d Cir.
2008); see also Pareja, 615 F.3d at 186.
Mejia also claims that the BIA erred in concluding that it was too speculative to
consider the hardship his daughter may face if her mother were removed to Guatemala.
In response to Mejias assertion that his daughter may in the future have to accompany
her mother to Guatemala, the BIA stated that [w]e find the series of events too
speculative at this time to consider the degree of hardship which may result in such
circumstances. Administrative Record at 3. Mejias contention that the BIA should
have considered the possibility that his daughters mother would also be removed to
Guatemala challenges the BIAs weighing of the factors and constitutes quarrels over
the exercise of discretion and the correctness of the factual findings reached by the
agency. Cospito, 539 F.3d at 170-71 (quoting Emokah v. Mukasey, 523 F.3d 110, 119
(2d Cir. 2008)). Therefore, this claim also involves only the BIAs discretionary decision
regarding hardship, and we do not have jurisdiction to review it. See Pareja, 615 F.3d at
186.
5
In accordance with the foregoing, we will dismiss in part and deny in part Mejias
petition for review.

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