Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-25-2007
Rodriguez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2996
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2996
ANA RODRIGUEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A74-901-038)
Immigration Judge: Honorable Henry S. Dogin
Submitted Under Third Circuit LAR 34.1(a)
September 12, 2007
Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.
(Filed: September 25, 2007)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Ana Rodriguez petitions for review of a final order of the Board of Immigration
Appeals (BIA) affirming the denial by the Immigration Judge (IJ) of Rodriguez’s
application for cancellation of removal. For the reasons that follow, we will dismiss
Rodriguez’s petition for review for lack of jurisdiction.
II.
Rodriguez, a native and citizen of Columbia, entered the United States lawfully on
October 17, 1987. She has since resided in the United States. Rodriguez has two
children, both of whom are United States citizens. Rodriguez’s mother also legally
resides in the United States. On December 29, 1994, Rodriguez married Miguel Hebron,
a United States citizen. There were no children from this marriage.
On September 23, 2004, the Government initiated removal proceedings against
Rodriguez by serving her with a Notice to Appear (NTA). The NTA charged that
Rodriguez was removable to Columbia under § 237(a)(1)(D)(i) of the Immigration and
Nationality Act (INA) as an alien who failed to depart after the termination of her
conditional permanent residence status. Rodriguez conceded that she was removable as
charged. Nevertheless, Rodriguez applied for cancellation of removal under INA §
204A(b), 8 U.S.C. § 1229b(b)(1)(D). After a hearing, the IJ denied her petition for relief
on the grounds that Rodriguez lacked good moral character and had failed to establish
that her removal would create “an exceptional and extremely unusual hardship” on her
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qualifying family members, as per § 240A(b)(1)(D) of the INA, 8 U.S.C. §
1229b(b)(1)(D). Rodriguez appealed the denial of cancellation of removal to the BIA,
arguing that the IJ had erred in his determinations that Rodriguez’s relatives would not
suffer exceptional and unusual hardship if Rodriguez were removed and that Rodriguez
lacked good moral fiber. The BIA affirmed the IJ’s decision on the grounds that
Rodriguez failed to establish the requisite hardship to a qualified relative. Rodriguez
timely filed the instant petition for review.
III.
Because the BIA adopted some of the findings of the IJ and discussed the bases for
the IJ’s decision, we review the decision of the BIA and that of the IJ to the extent
adopted by the BIA. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004); see also Abdulai
v. Ashcroft, 239 F.3d 542, 549 n. 02 (3d Cir. 2001). Thus, we will only address
Rodriguez’s argument that the removal proceedings were deficient because the IJ and the
BIA incorrectly applied the BIA precedent regarding exceptional and extremely unusual
hardships to the facts of her case, thus violating her rights to due process. Rodriguez’s
other arguments concern the IJ’s finding that Rodriguez lacked good moral character,
which was not adopted by the BIA in its decision affirming the denial of cancellation of
removal.
In Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003), we held that
Ҥ 1252(a)(2)(B)(I) strips us of jurisdiction to review certain discretionary decisions
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under the Immigration and Naturalization Act as enumerated by the statute,” and
specifically, “whether an alien meets the hardship requirement in 8 U.S.C. § 1229b is
such a discretionary judgment.” Id. We also noted that this decision was consistent with
those of other courts of appeals that had considered whether a determination that an alien
does not satisfy the hardship requirement was discretionary and thus unreviewable. Id.
Rodriguez attempts to circumvent this jurisdictional impediment by arguing that the BIA
deprived her of her due process rights when it denied her application for removal, thus
bringing her claim within the scope of our jurisdiction under INA § 242(a)(2)(D) to
review constitutional claims. Nevertheless, Rodriguez’s argument that her due process
rights were violated is based solely on her claim that the IJ and BIA incorrectly applied
BIA precedent to the facts of her case, an application which is firmly within the discretion
of both the IJ and the BIA. Therefore, because we cannot successfully determine whether
the BIA’s precedential decisions were correctly applied by the BIA or the IJ without
analyzing the merits of the decision to deny Rodriguez’s request for cancellation, which is
a discretionary judgment, we lack jurisdiction over Rodriguez’s petition for review.
IV.
For the foregoing reasons, we will dismiss the petition for review.
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