United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 5, 2004
Charles R. Fulbruge III
Clerk
No. 03-60730
Summary Calendar
JOSE RODRIGUEZ RUEDA
Petitioner
v.
JOHN ASHCROFT, US ATTORNEY GENERAL
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.
PER CURIAM:
Jose Rodriguez Rueda petitions this court for review of the
Board of Immigration Appeals’ (BIA) 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).
Rueda contests the merits of the IJ’s determination that he was
statutorily ineligible for cancellation of removal because he
failed to demonstrate the requisite hardship.
Because this case involves the granting of relief under
8 U.S.C. § 1229b(b), the jurisdictional bar of 8 U.S.C.
No. 03-60730
-2-
§ 1252(a)(2)(B)(i)1 is implicated. See Garcia-Melendez v.
Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003). This provision
strips us of jurisdiction over those decisions that involve the
exercise of discretion. Mireles-Valdez v. Ashcroft, 349 F.3d
213, 216 (5th Cir. 2003). The IJ’s determination under
§ 1229b(b)(1)(D) that Rueda’s children would not suffer an
“exceptional and extremely unusual hardship” if Rueda were
deported to Mexico involved the exercise of discretion. See,
e.g., Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir.
2003) (holding that “[t]he decision whether an alien meets the
hardship requirement in 8 U.S.C. § 1229b is . . . a discretionary
judgment”); cf. Moosa v. INS, 171 F.3d 994, 1012 (5th Cir. 1999)
(holding, under the predecessor to § 1229b(b), “that denials of
suspension based on the . . . element of ‘extreme hardship’ are
discretionary decisions”). Therefore, this court lacks
jurisdiction to review the IJ’s hardship determination, and
Rueda’s petition is DISMISSED. See Mendez-Moranchel, 338 F.3d at
179.
1
As we have previously explained, the judicial review
provisions codified in § 1252(a)(2) apply to removal proceedings,
like Rueda’s, that commenced after April 1, 1997. See, e.g.,
DeLeon-Holguin v. Ashcroft, 253 F.3d 811, 813 (5th Cir. 2001).