     Case: 12-60641       Document: 00512286439         Page: 1     Date Filed: 06/25/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 25, 2013
                                     No. 12-60641
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

FELIX CARRILLO,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A076 833 874


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Felix Carrillo, a native and citizen of Mexico, entered the United States
illegally in 1991. He was charged with removal in 2003. Eventually, Carrillo
conceded he was removable as charged.                He then filed an application for
cancellation of removal under 8 U.S.C. § 1229b, asserting that his removal would
cause exceptional and extremely unusual hardship.
       At his 2010 removal hearing, Carrillo testified: that he had three young
children, each of whom was a United States citizen; that he was earning $1,700

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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per week; that he owned residential and commercial properties in the United
States; that if he were removed to Mexico, he would bring his children; that,
although he would be able to find a job in Mexico, he would earn less; that this
reduction in income would inflict hardship on his children; and that his children
would also receive a worse education in Mexico.
      The immigration judge (“IJ”) denied Carrillo’s application for cancellation
of removal. The IJ found Carrillo to be “credible,” and noted that he seemed to
be an “ideal person” for relief for removal. However, the IJ found that, under
Board of Immigration Appeals (“BIA”) precedent, Carrillo had not shown
removal to Mexico would amount to an “exceptional and extremely unusual
hardship” to his children. The IJ noted, among other things, that Carrillo’s
children spoke Spanish, and that he had family members in Mexico.
      The BIA agreed that Carrillo did not demonstrate that his removal would
cause the requisite hardship. Accordingly, it dismissed his appeal on December
9, 2011. The BIA also denied his motion for reconsideration on July 18, 2012.
      Carrillo filed this petition for review on August 13, 2012, along with a
motion to stay removal pending this court’s resolution of the petition.
      Carrillo’s children’s plight is sympathetic, but we lack jurisdiction to
consider Carrillo’s claims relating to the removal order. The BIA issued the
order on December 9, 2011; Carrillo did not file a petition for review until August
13, 2013. A “petition for review must be filed not later than 30 days after the
date of the final order of removal.” 8 U.S.C. § 1252(b)(1). A timely petition for
review is a jurisdictional requirement, and the lack thereof deprives this court
of jurisdiction to review a decision of the BIA. See Navarro-Miranda v. Ashcroft,
330 F.3d 672, 676 (5th Cir. 2003). The filing of a motion for reconsideration does
not toll the statutory time in which to appeal the BIA’s underlying decision. See
Stone v. INS, 514 U.S. 386, 405-06 (1995) (observing that the finality of a
deportation order “is not affected by the subsequent filing of a motion to
reconsider”). Given that Carrillo’s petition was not filed within thirty days of the

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                                  No. 12-60641

BIA’s removal order, and that Carrillo’s motion for reconsideration did not toll
the statutory time in which to appeal this order, Carrillo’s petition for review is
untimely. See id. Accordingly, we lack jurisdiction to review any arguments he
makes relative to that decision. See id.
      Although we may review “constitutional claims or questions of law,” 8
U.S.C. § 1252(a)(2)(D); see Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007), in
doing so, we look past the petitioner’s framing of an issue, and decline to
consider “an abuse of discretion argument cloaked in constitutional garb.”
Hadwani v. Gonzales, 445 F.3d 798, 801 (5th Cir. 2006) (per curiam) (internal
quotation marks, citation, and alteration omitted). Carrillo’s argument that the
IJ and BIA improperly weighed the factors underlying the discretionary
hardship determination challenges only their evaluation of the evidence, and
does not raise constitutional claims or questions of law. See Sung, 505 F.3d at
377 (noting that the petitioner’s contention that “the IJ did not consider all the
relevant factors in determining whether [the petitioner’s] children would not
suffer the requisite hardship” does not “involve a constitutional claim or a
question of law”); Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001) (“It is
axiomatic that if we are divested of jurisdiction to review an original
determination by the Board that an alien has failed to establish that he would
suffer extreme hardship if deported, we must also be divested of jurisdiction to
review the Board’s denial of a motion to reopen on the ground that the alien has
still failed to establish such hardship.”). Accordingly, “this court does not have
jurisdiction to review this claim.” Sung, 505 F.3d at 377.
      Finally, Carrillo’s claim that the IJ erroneously concluded that his I-140
petition precluded him from seeking cancellation of removal was not raised in
either his direct appeal or motion for reconsideration before the BIA.
Consequently, we lack jurisdiction to consider this issue in the instant petition
for review. See 8 U.S.C. § 1252(d)(1); Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th
Cir. 2001).

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     Accordingly, Carrillo’s petition for review is DISMISSED for lack of
jurisdiction. His motion for a stay of removal is DENIED.




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