                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2004

Mota-Hernandez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3226




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                                                               NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                       No. 03-3226
                                      ____________

                           REYNA MOTA-HERNANDEZ,

                                            Appellant

                                            v.

                             JOHN ASHCROFT, In His
                               Capacity as Attorney
                                  General, USA
                                 ____________

                     Appeal from the United States District Court
                        For the Eastern District of Pennsylvania
                                 D.C. No.: 03-cv-03459
                    District Judge: Honorable Ronald J. Buckwalter
                                     ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                September 21, 2004

                Before: MCKEE, ROSENN, and WEIS, Circuit Judges

                            (Filed:    September 30, 2004)
                                      ___________

                             OPINION OF THE COURT
                                  ____________

ROSENN, Circuit Judge.

       Reyna Mota-Hernandez (“Mota-Hernandez”) timely appeals the order of the District

Court denying her Petition for a writ of habeas corpus under 28 U.S.C. § 2241. Mota-
Hernandez asserts that 8 U.S.C. § 1252(a)(2)(B) unconstitutionally removes judicial review

of discretionary decisions made by the Board of Immigration Appeals (“BIA”), and thus

denies due process.     The District Court held that there was no basis for declaring §

1252(a)(2)(B) unconstitutional, and that it lacked jurisdiction to review the BIA’s denial of

her application for cancellation of removal. We affirm.

        Mota-Hernandez entered this country illegally, either in 1982 or 1989, from Mexico.

In 1997, the Immigration and Naturalization Service charged her with removability. Mota-

Hernandez conceded removability, but sought cancellation of removal pursuant to 8 U.S.C.

§ 1229b(b)(1), which allows the Attorney General to cancel removal if the applicant: “(A)

has been physically present in the United States for a continuous period of not less than 10

years immediately preceding the date of such application; (B) has been a person of good

moral character during such period; (C) has not been convicted of” certain offenses; “and (D)

establishes that removal would result in exceptional and extremely unusual hardship to the

alien’s spouse, parent, or child, who is a citizen of the United States . . . .” 8 U.S.C. §

1229b(b)(1).

        At a hearing before a careful, patient, and sensitive Immigration Judge (“IJ”), Mota-

Hernandez testified that three of her four children were born in the United States, that she has

held various full-time jobs since arriving in the United States, has paid income taxes, and has

never been convicted of an offense. She lives in Reading, Pennsylvania, with her children

and the father of three of her children. Mota-Hernandez also testified that her son is



                                               2
asthmatic, and that she would not be able to provide him with medication should she be

removed to Mexico.

       Although the IJ recognized the pathos in Petitioner’s case, he concluded that none of

Mota-Hernandez’s children suffered from a serious illness, and that they would be able to

adjust to life in Mexico. Thus, the IJ held that Mota-Hernandez failed to show that her

children would suffer “exceptional and extremely unusual hardship” if she was removed to

Mexico, and denied her application for cancellation of removal. In a written per curiam

order, the BIA affirmed the IJ’s decision. Mota-Hernandez appealed the BIA’s order to this

Court, which held that it lacked jurisdiction to review the BIA’s discretionary decision, and

accordingly affirmed the BIA’s order.

       In this § 2241 proceeding, Mota-Hernandez argues, in essence, that the BIA reached

the wrong determination on hardship. The BIA’s determination that Mota-Hernandez’s

children will not suffer “an exceptional and extremely unusual hardship” is a discretionary

decision which, under 8 U.S.C. § 1252(a)(2)(B), this Court is without jurisdiction to review.

Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). Further, as this Court has

recently held, the scope of § 2241 habeas review in the immigration context is “confined to

questions of constitutional and statutory law,” and excludes review of discretionary

determinations. Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir. 2004).

       To the extent that Mota-Hernandez’s Petition can be read as asserting a due process

claim, it asserts no basis for holding that the Constitution requires judicial review of the



                                             3
BIA’s discretionary decisions.

       The order of the District Court will be affirmed. Each side to bear its own costs.




                                            4
