Salvador Caballero-Hernandez v. Eric Holder, Jr.

Case: 09-60341 Document: 00511019853 Page: 1 Date Filed: 02/03/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 09-60341 February 3, 2010
Summary Calendar
Charles R. Fulbruge III
Clerk

SALVADOR CABALLERO-HERNANDEZ,

Petitioner
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094-953-167

Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Salvador Cabellero-Hernandez petitions this court for review of the Board
of Immigration Appeals’ decision summarily affirming the Immigration Judge’s
(“IJ”) order denying his application for cancellation of removal pursuant to
8 U.S.C. § 1229b(b)(1). Petitioner contests the merits of the IJ’s determination
that he was statutorily ineligible for cancellation of removal because he failed to

*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-60341 Document: 00511019853 Page: 2 Date Filed: 02/03/2010

No. 09-60341

demonstrate the requisite hardship. Further, Petitioner challenges the
constitutional basis of 8 U.S.C. §§ 1229b(b) and 1252(a)(2)(B).
“This court lacks jurisdiction to review the IJ’s [discretionary] hardship
determination” under 8 U.S.C. § 1229b(b)(1). Rueda v. Ashcroft, 380 F.3d 831,
831 (2004). Petitioner’s remaining constitutional claims are meritless.
Petitioner raises a due process challenge to 8 U.S.C. § 1229b(b)(2) on behalf of
his American children, but “[l]egal orders of deportation to their parents do not
violate any constitutional right of citizen children . . . .” Gonzalez-Cuevas v. INS,
515 F.2d 1222, 1224 (5th Cir. 1975). Petitioner next claims that
§ 1252(a)(2)(B) violates the Administrative Procedure Act (“APA”), but “the APA
does not apply to deportation hearings under [the Immigration and Nationality
Act].” Rivera-Cruz v. INS, 948 F.2d 962, 967 n.5 (5th Cir. 1992).
For these reasons, petition for review is DENIED.