                                                                            FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   October 31, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                              FOR THE TENTH CIRCUIT




    ELENA ARMENDARIZ GONZALEZ,

                Petitioner,

    v.                                                  No. 07-9585
                                                    (Petition for Review)
    MICHAEL B. MUKASEY,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.


         Elena Armendariz-Gonzalez is a Mexican native and citizen who entered

the United States in 1989 without inspection. In 2002, immigration officials

charged her with being present in this country without having been admitted or

paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). She conceded the charge but sought

cancellation of removal under 8 U.S.C. § 1229b(b)(1). That provision permits the


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Attorney General to cancel removal proceedings against an alien who has been

continuously present in the United States not less than ten years, is of good moral

character, has not been convicted of certain enumerated offenses, and

demonstrates that removal would result in exceptional and extremely unusual

hardship to a spouse, parent, or child, who is a citizen or lawfully admitted

permanent resident. See 8 U.S.C. § 1229b(b)(1).

      After a hearing, an Immigration Judge (IJ) agreed that Ms. Armendariz-

Gonzalez met the first three elements of § 1229b(b)(1), but found that she failed

to meet the standard for exceptional and extremely unusual hardship because her

three American children would suffer the same level of hardship as anyone else

whose parent was removed to Mexico. The IJ therefore ordered that she be

removed or voluntarily depart. Ms. Armendariz-Gonzalez appealed, but while her

appeal was pending before the Board of Immigration Appeals (BIA), she moved

to remand her case to the IJ in light of new evidence that her children had been

physically and sexually abused. She claimed this new evidence would have

changed the outcome of the case. The BIA denied the motion for remand and

affirmed the IJ’s removal order. Ms. Armendariz-Gonzalez subsequently

petitioned this court for review, arguing that the IJ denied her due process and the

BIA improperly denied her motion for remand. The government, in turn, moved

to dismiss the petition for lack of jurisdiction. We grant the government’s motion

and dismiss the petition for review.

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      Notwithstanding our jurisdiction to review constitutional claims and

questions of law raised upon a petition for review, 8 U.S.C. § 1252(a)(2)(D), this

court lacks jurisdiction to review discretionary aspects of cancellation of removal,

see id. § 1252(a)(2)(B)(i); Perales-Cumpean v. Gonzales, 429 F.3d 977, 981-82

(10th Cir. 2005), including whether a petitioner demonstrates exceptional and

extremely unusual hardship, Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262

(10th Cir. 2003). Ms. Armendariz-Gonzalez contends she is not challenging any

discretionary decision, but rather the IJ’s denial of due process. She claims the IJ

denied relief based on his political ideology and prosecutorial demeanor, not the

governing legal standard as set forth in In re Recinas, 23 I. & N. Dec. 467 (BIA

2002). She asserts this constitutional claim confers upon us jurisdiction to review

her application for cancellation of removal. We are not persuaded.

      Where, as here, “a single BIA member issues a brief order, affirming . . .

the IJ’s order under [8 C.F.R. § 1003](e)(5),” we “will not affirm on grounds

raised in the IJ decision unless they are relied upon by the BIA in its affirmance.”

See Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007) (quotations

omitted). The BIA concluded that Ms. Armendariz-Gonzalez failed to meet the

standard for exceptional and extremely unusual hardship. In so concluding, the

BIA explicitly found that under Recinas and other relevant authority,

Ms. Armendariz-Gonzalez did not show the requisite level of hardship. Because

the “BIA decision contains a discernible substantive discussion that stands on its

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own and does not explicitly incorporate or reference the IJ’s reasoning, our

review extends no further.” Id. (quotations and alterations omitted).

      Nonetheless, Ms. Armendariz-Gonzalez may not circumvent the

jurisdictional bar of § 1252(a)(2)(B)(i) by recasting her claim in constitutional

terms so as to fall within the parameters of § 1252(a)(2)(D). See Perales-

Cumpean, 429 F.3d at 982 (rejecting “petitioner’s attempt to recast the BIA’s

decision . . . as a pure question of law” because it “involve[d] the exercise of

agency discretion”); see also Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 190

(3d Cir. 2007) (“Recasting challenges to . . . discretionary determinations as due

process or other constitutional claims is clearly insufficient to give this Court

jurisdiction under § 125[2](a)(2)(D).”). Although she styles her claim a due

process violation, her contention is that the IJ failed to follow Recinas. This

argument essentially asks us to reevaluate the agency’s hardship determination in

hopes of achieving a more favorable outcome. Indeed, she plainly asserts that

because circumstances in this case are similar to those in Recinas, where relief

was granted, relief ought to have been granted to her as well. But this is precisely

the sort of discretionary decision Congress chose to divest courts of jurisdiction

to review. We may not exceed the bounds of our jurisdiction simply to reweigh

the evidence.

      Moreover, to the extent Ms. Armendariz-Gonzalez suggests that her claim

involves a question of law, we reject her argument. The provision for questions

                                          -4-
of law contained in § 1252(a)(2)(D) “grants us jurisdiction to review a narrow

category of issues regarding statutory construction.” Diallo v. Gonzales, 447 F.3d

1274, 1282 (10th Cir. 2006) (quotation omitted). Although Ms. Armendariz-

Gonzalez contends the agency misapplied or misinterpreted the statutory hardship

standard, she does not ask us to interpret any statute. Instead, she asks us to

reconsider the facts of her case under Recinas. But again, such “challenges

directed solely at the agency’s discretionary and factual determinations” are

“outside the scope of judicial review.” Id. at 1281. Therefore, absent a

constitutional claim or question of law, we are without jurisdiction to consider the

claim.

         Nor do we have jurisdiction to review the denial of the motion for remand.

A motion for remand is substantively treated the same as a motion to reopen. See

8 C.F.R. § 1003.2(c)(4); In re L-V-K, 22 I. & N. Dec. 976, 978 (BIA 1999).

Although we normally review the denial of a motion to reopen for an abuse of

discretion, our jurisdiction to do so extends only as far as our jurisdiction over the

underlying removal order. Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62

(10th Cir. 2004). Here, although the BIA did not so explicitly state, it clearly

denied the motion for remand on the same grounds it denied the underlying

application for cancellation of removal – because even with the additional

evidence, Ms. Armendariz-Gonzalez still failed to satisfy the hardship standard.

See Mickeviciute, v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003) (recognizing that

                                          -5-
the BIA may deny a motion to reopen on the same grounds that it denies “the

underlying substantive relief sought” (quotation omitted)). As we have explained,

the BIA’s finding that Ms. Armendariz-Gonzalez failed to establish the requisite

level of hardship was a discretionary decision beyond our review. And since the

denial of the motion to remand related solely to that discretionary merits

determination, it follows that we have no jurisdiction to review the denial of the

motion for remand.

      Accordingly, the government’s motion to dismiss is GRANTED. The

petition for review is DISMISSED for lack of jurisdiction.


                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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