                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 10-1323
                                     ___________

                          JAVIER MENDIETA-MORALES,
                                             Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                            (Agency No. A093-492-676)
                   Immigration Judge: Honorable Frederic G. Leeds
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   March 23, 2011

           Before: BARRY, HARDIMAN and STAPLETON, Circuit Judges

                            (Opinion filed March 23, 2011)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Javier Mendieta-Morales, a native and citizen of Mexico, petitions for review of

the order of the Board of Immigration Appeals (“BIA”) denying his motion to remand

and affirming the immigration court’s denial of cancellation of removal. For the reasons
discussed below, we will dismiss the petition.

       Mendieta-Morales came to the United States in October 1997 without a valid visa

or other travel documents. He lives in New Jersey with his common-law wife (an

undocumented alien) and their family, an older daughter who is a Mexican citizen, and

two younger daughters who are American citizens. Mendieta-Morales was placed in

removal proceedings in 2007,1 and in 2008, he applied for cancellation of removal under

INA § 240A(b) [8 U.S.C. § 1229b(b)], claiming that his continuous presence in the

United States for ten years, the absence of any criminal statutory bars, and that his

removal to Mexico would result in exceptional and extremely unusual hardship to his

American born children, for whom he is the sole provider.

       The Government stipulated to Mendieta-Morales’s continuous presence and

acknowledged that he would be eligible for the petty offense exception to the criminal

statutory bar. After a hearing at which Mendieta-Morales and the children’s treating

physicians testified, the IJ found him removable as charged and denied cancellation of

removal based solely on Mendieta-Morales’s failure to demonstrate that his American

born children would suffer the exceptional and extremely unusual hardship if he is

removed.

       Mendieta-Morales appealed and also sought remand to the IJ for consideration of


1
  The Government charged Mendieta-Morales as removable pursuant to INA §
212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i) (alien present in the United States without

admission or parole).
                                             2
new evidence that one of his American born daughters was due to undergo diagnostic

testing for her respiratory problems. The BIA dismissed the appeal of the denial of

cancellation of removal, finding no clear error in the IJ’s denial of discretionary

cancellation of removal based on Mendieta-Morales’s failure to satisfy the hardship

requirement. Additionally, the BIA denied Mendieta-Morales’s motion to remand,

holding that he failed to show prima facie eligibility for relief. Specifically, the Board

concluded that Mendieta-Morales did not offer any supporting evidence specific to the

child’s further need for diagnostic testing. The BIA noted that the motion to remand

provided only background information on the child’s reactive airway disease, which had

been addressed in the testimony of the child’s pediatrician at the 2008 hearing.

Mendieta-Morales filed this timely petition for review.

       The Government raises a threshold issue: whether we have jurisdiction to review

the BIA’s order affirming the IJ’s denial of discretionary cancellation of removal. We

have jurisdiction generally to review final orders of removal pursuant to 8 U.S.C. §

1252(a)(1). Section 1252(a)(2)(B)(i) removes our jurisdiction over the Board’s

discretionary decisions regarding cancellation of removal under 8 U.S.C. § 1229b. See

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

       Mendieta-Morales argues that the question of his statutory eligibility for

cancellation of removal, including whether he satisfied the “exceptional and extremely

unusual hardship” requirement, is a legal determination over which we have jurisdiction.

(Pet’r Br. at 9-10.) We disagree. To succeed on an application for cancellation of
                                              3
       removal, an alien must establish, among other things, that removal would result in

“exceptional and extremely unusual hardship” to a qualifying relative. We held in

Mendez-Moranchel that this determination is a “quintessential discretionary judgment.”

Id. Here, the Board denied Mendieta-Morales’s application for cancellation of removal

based solely on a discretionary determination that he failed to establish the requisite

“exceptional and extremely unusual hardship” to his American born daughters, see 8

U.S.C. § 1229b(b)(1)(D), and, thus, we lack jurisdiction to review the final order of

removal.

       Mendieta-Morales claims that we have jurisdiction to review the denial of his

motion to remand. Although we generally have jurisdiction to review a motion to

remand (treated the same as a motion to reopen), see Shardar v. Ashcroft, 382 F.3d 318,

324-25 (3d Cir. 2004), we lack jurisdiction to review the motion to remand in Mendieta-

Morales’s case because the issue presented by it is essentially the same discretionary

hardship issue originally decided. See Fernandez v. Gonzales, 439 F.3d 592, 600 (9th

Cir. 2006); Martinez-Maldonaldo v. Gonzales, 437 F.3d 679, 683 (7th Cir. 2006).

       Accordingly, we will dismiss for lack of jurisdiction the petition for review of the

Board’s order affirming the IJ’s discretionary cancellation of removal and denying

Mendieta-Morales’s motion to remand.




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