UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2239
HUGO R. SANTOS,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: June 5, 2012 Decided: June 13, 2012
Before DUNCAN, AGEE, and FLOYD, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
H. Glenn Fogle, Jr., THE FOGLE LAW FIRM, LLC, Atlanta, Georgia,
for Petitioner. Stuart F. Delery, Acting Assistant Attorney
General, Keith I. McManus, Senior Litigation Counsel, Jessica E.
Sherman, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Hugo R. Santos, a native and citizen of Guatemala,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) denying his motion to reopen. For the reasons
set forth below, we dismiss the petition for review.
In his brief before the court, Santos challenges the
denial of his request for cancellation of removal and contends
that the Board erred as a matter of law in refusing to reopen
his case. He argues that the agency erred in concluding that he
failed to meet his burden of establishing that his two United
States citizen children would suffer exceptional and extremely
unusual hardship if he is returned to Guatemala. 1
Under 8 U.S.C. § 1252(a)(2)(B)(i) (2006), entitled
“Denials of discretionary relief,” “no court shall have
jurisdiction to review any judgment regarding the granting of
relief under section . . . 1229b,” which is the section
governing cancellation of removal. The determination that
Santos failed to demonstrate the requisite hardship was clearly
1
As correctly noted by the Attorney General, Santos has not
challenged the Board’s conclusion that he failed to establish
prima facie eligibility for asylum, withholding of removal, or
protection under the Convention Against Torture. He has
therefore waived appellate review of this issue. See Ngarurih
v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004) (finding that
failure to raise a challenge in an opening brief results in
abandonment of that challenge); Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999) (same).
2
discretionary in nature, and we therefore lack jurisdiction to
review challenges to this finding. See, e.g., Barco-Sandoval v.
Gonzales, 516 F.3d 35, 36 (2d Cir. 2008); Memije v. Gonzales,
481 F.3d 1163, 1164 (9th Cir. 2007); Martinez v. U.S. Att’y
Gen., 446 F.3d 1219, 1221-22 (11th Cir. 2006); Meraz-Reyes v.
Gonzales, 436 F.3d 842, 843 (8th Cir. 2006); see also Obioha v.
Gonzales, 431 F.3d 400, 405 (4th Cir. 2005) (“It is quite clear
that the gatekeeper provision [of § 1252(a)(2)(B)(i)] bars our
jurisdiction to review a decision of the [Board] to actually
deny a petition for cancellation of removal.”). Indeed, we have
concluded that the issue of hardship is committed to agency
discretion and thus is not subject to appellate review. Okpa v.
INS, 266 F.3d 313, 317 (4th Cir. 2001).
The fact that Santos is seeking review of the Board’s
denial of his motion to reopen, as opposed to the agency’s
initial denial of his request for cancellation of removal, is of
no consequence. To determine whether we have jurisdiction over
the Board’s denial of Santos’ motion to reopen, we “must
consider the [Board]’s basis for the denial.” Sorcia v. Holder,
643 F.3d 117, 126 (4th Cir.), cert. denied, 132 S. Ct. 776
(2011). “Where the [Board] ma[k]e[s] a discretionary decision
on the merits of an enumerated provision [of
§ 1252(a)(2)(B)(i)], the fact that it d[oes] so through denying
a motion to reopen d[oes] not save appellate jurisdiction.”
3
Obioha, 431 F.3d at 407; accord Alzainati v. Holder, 568 F.3d
844, 849 (10th Cir. 2009) (“Because § 1252(a)(2)(B)(i) precludes
our review of an ‘exceptional and extremely unusual hardship’
determination under § 1229b(b)(1)(D), it also precludes our
jurisdiction to review the [Board]’s denial of a motion to
reopen because the alien still has failed to show the requisite
hardship.”).
Here, Santos submitted additional evidence with his
motion to reopen, including evidence that his daughters suffered
from post-traumatic stress disorder and background evidence of
violence against women in Guatemala, in an attempt to show that
his children would suffer the requisite hardship if he is
removed from the United States. In denying the motion to
reopen, the Board concluded that this new evidence was
“insufficient to show that the reopening is warranted for
further consideration of cancellation of removal.” Because the
Board clearly concluded that Santos had still failed to meet his
burden of demonstrating that his children would suffer
exceptional and extremely unusual hardship if he is returned to
Guatemala, we find ourselves without jurisdiction.
4
Accordingly, we dismiss the petition for review. 2 We
deny the joint motion to hold the case in abeyance. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DISMISSED
2
We note that Santos raises no colorable questions of law
or constitutional claims that fall within the exception set
forth in 8 U.S.C. § 1252(a)(2)(D) (2006) (stating that no
provision limiting judicial review “shall be construed as
precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate
court of appeals”).
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