Case: 20-60260 Document: 00516081556 Page: 1 Date Filed: 11/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-60260 November 4, 2021
Summary Calendar Lyle W. Cayce
Clerk
Diego Adrian Rodriguez Hernandez, also known as Diego
Rodriguez,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A044 360 148
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Diego Adrian Rodriguez Hernandez, a native and citizen of Mexico,
petitions for review of an order by the Board of Immigration Appeals (BIA)
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-60260 Document: 00516081556 Page: 2 Date Filed: 11/04/2021
No. 20-60260
denying his motion for reconsideration after concluding that he did not
warrant a favorable exercise of its discretion to cancel removal.
We review the question of whether we have jurisdiction de novo.
Hadwani v. Gonzales, 445 F.3d 798, 800 (5th Cir. 2006). Although we
generally lack jurisdiction to review the discretionary denial of an application
for cancellation of removal, we retain jurisdiction to review constitutional
claims or questions of law. 8 U.S.C. § 1252(a)(2)(B) & (a)(2)(D). However,
a petitioner cannot manufacture jurisdiction by petitioning for review of a
motion to reopen or reconsider when we would lack jurisdiction to review a
direct petition. Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004).
Rodriguez Hernandez argues that the BIA failed to adhere to binding
precedent when it determined that his criminal history outweighed the
factors in favor of granting cancellation of removal, but an assertion that the
BIA failed to consider or put insufficient emphasis on particular factors
“merely asks this Court to replace the [BIA’s] evaluation of the evidence
with a new outcome, which falls squarely within the jurisdictional bar of 8
U.S.C. § 1252(a)(2)(B).” Sattani v. Holder, 749 F.3d 368, 372 (5th Cir.
2014), abrogated in part on other grounds by Guerrero Trejo v. Garland, 3 F.4th
760, 768-73 (5th Cir. 2021). Because Rodriguez Hernandez has not
presented a legal or constitutional claim, we lack jurisdiction to review the
denial of his motion for reconsideration. See Assaad, 378 F.3d at 475.
Accordingly, the petition for review is DISMISSED.
2