                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-3264
                                      ____________

                           ROGELIO QUIJADA-MORALES,
                              a/k/a Rogelio Morales Q.,
                                             Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                     Respondent
                             ____________

                            On Petition for Review from an
                       Order of the Board of Immigration Appeals
                              (Board No. A200-766-880)
                          Immigration Judge: Mirlande Tadal
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 20, 2015

              Before: FISHER, CHAGARES and COWEN, Circuit Judges.

                                  (Filed: June 17, 2015)
                                      ____________

                                        OPINION*
                                      ____________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
FISHER, Circuit Judge.

         Rogelio Quijada-Morales appeals a final order of removal issued by the Board of

Immigration Appeals (“BIA”) dismissing his appeal seeking discretionary cancellation of

removal. We will deny the petition for review as to the constitutional claim, and dismiss

the remainder of the petition for lack of jurisdiction.

                                               I.

         We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

         Quijada-Morales is a Mexican citizen who illegally entered the United States in

August 1994. The Department of Homeland Security commenced removal proceedings

against Quijada-Morales in March 2011, charging him with inadmissibility as an alien

present in the United States without being admitted or paroled.1 On June 22, 2011,

Quijada-Morales appeared before an immigration judge and, through counsel, he

conceded inadmissibility as charged.

         Quijada-Morales sought discretionary cancellation of removal under 8 U.S.C.

§ 1229b(b), which requires, among other things, that the nonpermanent resident show

“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 or an alien lawfully


1
    8 U.S.C. § 1182(a)(6)(A)(i).

                                               2
admitted for permanent residence.” Quijada-Morales based his application on hardships

that his deportation would cause his five U.S. citizen children to suffer.

       The Immigration Judge denied Quijada-Morales’s application for discretionary

cancellation of removal because he could not show that his children would suffer the

requisite exceptional and extremely unusual hardship if he was deported. After

identifying the relevant factors for assessing hardship, the Immigration Judge concluded

that there was insufficient evidence showing that Quijada-Morales’s children needed

medical treatment going forward, and even if things changed and they needed medical

treatment in the future, the Judge found that medical treatment would be adequate in

Mexico. The Immigration Judge also discounted the hardship Quijada-Morales’s children

would face in Mexico because Quijada-Morales’s mother and siblings still lived there and

two of his children had previously visited Mexico. Finally, the Immigration Judge

decided that even if the children remained in the United States, the children’s mother

would be able to provide for them.

       Quijada-Morales appealed the Immigration Judge’s decision to the BIA. The BIA

agreed with the Immigration Judge, concluding that the Judge correctly applied the BIA’s

precedent to the facts of Quijada-Morales’s case. Therefore, the BIA dismissed the

appeal. Quijada-Morales filed a timely petition for review in this Court.




                                              3
                                             II.

       We lack jurisdiction to review the BIA’s discretionary decisions under 8 U.S.C.

§ 1229b(b).2 “The determination of whether the alien has established the requisite

hardship is a quintessential discretionary judgment.”3 We therefore lack jurisdiction to

the extent Quijada-Morales asks us to review whether the BIA correctly weighed the

evidence in deciding that he failed to establish the requisite hardship.4

       Although we lack jurisdiction to review the BIA’s discretionary decision, we

maintain jurisdiction over constitutional claims and questions of law.5 Quijada-Morales’s

efforts to restore our jurisdiction by asserting these types of claims are generally

unpersuasive. First, he contends that we should review the BIA’s decision because it

misapplied the holdings from its cases to the facts of his case. Importantly, Quijada-

Morales does not argue that the Immigration Judge or BIA applied the wrong legal

standard, which would present a legal question we would have jurisdiction to review.6

Instead, Quijada-Morales’s argument is that he met his burden of establishing the

requisite hardship based on how his case is similar to or distinguishable from prior cases.




2
  8 U.S.C. § 1252(a)(2)(B)(i).
3
  Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003).
4
  See id.
5
  See Pareja v. Att’y Gen., 615 F.3d 180, 186 (3d Cir. 2010) (citing 8 U.S.C.
§ 1252(a)(2)(D)).
6
  See id. at 187–88.

                                              4
This argument goes to the heart of the BIA’s discretionary judgment, and as such, we

lack jurisdiction to review it.7

       We likewise lack jurisdiction to review Quijada-Morales’s challenge to the

Immigration Judge’s decision to address the hardship analysis under two scenarios: first,

if Quijada-Morales’s children moved with him to Mexico, and second, if his children

remained in the United States with their mother. The Immigration Judge and the BIA

simply addressed two alternative scenarios. This issue presents no legal or constitutional

claim, so we again lack jurisdiction to review it.

       Finally, Quijada-Morales argues that his deportation amounts to cruel and unusual

punishment to his children in violation of their Eighth Amendment rights.8 “[R]emoval

cannot violate the Eighth Amendment because it is not a criminal punishment,”9 so we

fail to see how Quijada-Morales’s removal could in any way violate his children’s Eighth

Amendment rights. This argument borders on frivolousness,10 but even if it is not

frivolous, we have no trouble concluding there is no violation of Quijada-Morales’s

children’s Eighth Amendment rights if he is deported. We will therefore deny this portion

of the petition for review.




7
  See Patel v. Att’y Gen., 619 F.3d 230, 233 (3d Cir. 2010).
8
  Petitioner Br. 14–16 (citing U.S. Const. amend. VIII).
9
  Eid v. Thompson, 740 F.3d 118, 126 (3d Cir. 2014).
10
   See Pareja, 615 F.3d at 187 (“If a claim is frivolous . . . we lack jurisdiction to review
it, no matter its label.”).

                                              5
                                            III.

       Accordingly, we will dismiss the appeal for lack of jurisdiction to the extent it

asks us to review the BIA’s discretionary denial of cancellation of removal, and we will

deny the petition for review over the constitutional claim.




                                             6
