                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2007

Rodriguez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2996




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                                               NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT




                       No. 06-2996




                   ANA RODRIGUEZ,
                          Petitioner

                            v.

    ATTORNEY GENERAL OF THE UNITED STATES,
                      Respondent




          Petition for Review of an Order of the
           United States Department of Justice
              Board of Immigration Appeals
                 (BIA No. A74-901-038)
       Immigration Judge: Honorable Henry S. Dogin




         Submitted Under Third Circuit LAR 34.1(a)
                    September 12, 2007


Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.

                (Filed: September 25, 2007)




                OPINION OF THE COURT
RENDELL, Circuit Judge.

       Ana Rodriguez petitions for review of a final order of the Board of Immigration

Appeals (BIA) affirming the denial by the Immigration Judge (IJ) of Rodriguez’s

application for cancellation of removal. For the reasons that follow, we will dismiss

Rodriguez’s petition for review for lack of jurisdiction.

                                             II.

       Rodriguez, a native and citizen of Columbia, entered the United States lawfully on

October 17, 1987. She has since resided in the United States. Rodriguez has two

children, both of whom are United States citizens. Rodriguez’s mother also legally

resides in the United States. On December 29, 1994, Rodriguez married Miguel Hebron,

a United States citizen. There were no children from this marriage.

       On September 23, 2004, the Government initiated removal proceedings against

Rodriguez by serving her with a Notice to Appear (NTA). The NTA charged that

Rodriguez was removable to Columbia under § 237(a)(1)(D)(i) of the Immigration and

Nationality Act (INA) as an alien who failed to depart after the termination of her

conditional permanent residence status. Rodriguez conceded that she was removable as

charged. Nevertheless, Rodriguez applied for cancellation of removal under INA §

204A(b), 8 U.S.C. § 1229b(b)(1)(D). After a hearing, the IJ denied her petition for relief

on the grounds that Rodriguez lacked good moral character and had failed to establish

that her removal would create “an exceptional and extremely unusual hardship” on her



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qualifying family members, as per § 240A(b)(1)(D) of the INA, 8 U.S.C. §

1229b(b)(1)(D). Rodriguez appealed the denial of cancellation of removal to the BIA,

arguing that the IJ had erred in his determinations that Rodriguez’s relatives would not

suffer exceptional and unusual hardship if Rodriguez were removed and that Rodriguez

lacked good moral fiber. The BIA affirmed the IJ’s decision on the grounds that

Rodriguez failed to establish the requisite hardship to a qualified relative. Rodriguez

timely filed the instant petition for review.

                                                III.

       Because the BIA adopted some of the findings of the IJ and discussed the bases for

the IJ’s decision, we review the decision of the BIA and that of the IJ to the extent

adopted by the BIA. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004); see also Abdulai

v. Ashcroft, 239 F.3d 542, 549 n. 02 (3d Cir. 2001). Thus, we will only address

Rodriguez’s argument that the removal proceedings were deficient because the IJ and the

BIA incorrectly applied the BIA precedent regarding exceptional and extremely unusual

hardships to the facts of her case, thus violating her rights to due process. Rodriguez’s

other arguments concern the IJ’s finding that Rodriguez lacked good moral character,

which was not adopted by the BIA in its decision affirming the denial of cancellation of

removal.

       In Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003), we held that

“§ 1252(a)(2)(B)(I) strips us of jurisdiction to review certain discretionary decisions


                                                 3
under the Immigration and Naturalization Act as enumerated by the statute,” and

specifically, “whether an alien meets the hardship requirement in 8 U.S.C. § 1229b is

such a discretionary judgment.” Id. We also noted that this decision was consistent with

those of other courts of appeals that had considered whether a determination that an alien

does not satisfy the hardship requirement was discretionary and thus unreviewable. Id.

Rodriguez attempts to circumvent this jurisdictional impediment by arguing that the BIA

deprived her of her due process rights when it denied her application for removal, thus

bringing her claim within the scope of our jurisdiction under INA § 242(a)(2)(D) to

review constitutional claims. Nevertheless, Rodriguez’s argument that her due process

rights were violated is based solely on her claim that the IJ and BIA incorrectly applied

BIA precedent to the facts of her case, an application which is firmly within the discretion

of both the IJ and the BIA. Therefore, because we cannot successfully determine whether

the BIA’s precedential decisions were correctly applied by the BIA or the IJ without

analyzing the merits of the decision to deny Rodriguez’s request for cancellation, which is

a discretionary judgment, we lack jurisdiction over Rodriguez’s petition for review.

                                            IV.

       For the foregoing reasons, we will dismiss the petition for review.




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