                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 29, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 ALEJANDRO TORRES-PACHECO,

                Petitioner,
          v.                                              No. 10-9510
 ERIC H. HOLDER, JR., United States
 Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Alejandro Torres-Pacheco 1 petitions for review of a Board of Immigration

Appeals (BIA) order dismissing his appeal of the denial by an immigration judge

(IJ) of his application for cancellation of removal. Exercising jurisdiction under

8 U.S.C. § 1252 to review his legal claims, we deny them. We dismiss for lack of

jurisdiction his other claims with respect to the BIA’s denial of cancellation.


      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor 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 This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and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.
      1
          Because the parties refer to him as Mr. Torres, we do the same.
I.      BACKGROUND

        Mr. Torres, a Mexican citizen, illegally entered the United States in 1992 or

1993. He and his wife have two children, both of whom were born in the United

States.

        On July 24, 2007, the Department of Homeland Security (DHS) commenced

removal proceedings against Mr. Torres. He conceded removability, but

requested cancellation of removal under 8 U.S.C. § 1229b(1). An alien is eligible

for cancellation if he:

        (A) has been physically present in the United States for a continuous
        period of not less than 10 years immediately preceding the date of
        such application;
        (B) has been a person of good moral character during such period;
        (C) has not been convicted of [certain cross-referenced offenses,] and
        (D) establishes 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 admitted for
        permanent residence.

8 U.S.C. § 1229b(1). The decisive issue before the IJ was whether Mr. Torres

had satisfied requirement (D). He contended that his removal would result in

exceptional and extremely unusual hardship to his child Alexa, who was born in

2007.

        At the removal hearing Mr. Torres testified that Alexa suffered from a

number of ailments. First, she was born with a misshapen head. Her treatment

was to wear a helmet that gradually molded her head into the proper shape. The

treatment was nearing its completion by the date of the hearing. In addition, she

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suffered bouts of conjunctivitis and bronchiolitis in 2008, although both were

successfully treated. Also in 2008, she suffered a seizure, which was diagnosed

as caused by fever from a urinary-tract infection. Finally, she was diagnosed with

iron-deficiency anemia, treated with iron and Vitamin C supplements.

      Mr. Torres testified that he would bring his family with him to Mexico if he

were deported. He feared, however, that his daughter would not receive adequate

medical care in Mexico because he would not be able to afford the care there.

      The IJ ruled that Mr. Torres had failed to establish that his removal would

result in exceptional and extremely unusual hardship to Alexa. He said that some

economic hardship was expected in most removal cases, and Mr. Torres’s

situation was not exceptional or unusual. Addressing Alexa’s specific medical

issues, the IJ found that her conjunctivitis, bronchiolitis, and urinary-tract

infection appeared to be singular events, and that there was no evidence that the

seizure she suffered was part of a recurring problem. Further, the IJ observed that

her helmet was about to be removed after having successfully reformed her

misshapen head. The IJ determined that nothing in the record demonstrated that

she would be unable to obtain adequate medical care in Mexico.

      Mr. Torres appealed the IJ’s decision to the BIA. The BIA dismissed the

appeal, agreeing with the IJ that Mr. Torres had failed to establish that Alexa

would suffer exceptional and extremely unusual hardship if he were removed.




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      Mr. Torres petitions this court for review, claiming that the IJ used the

incorrect legal standard and that the BIA misperceived the evidence and

misapplied the facts to the law. The Attorney General contends that 8 U.S.C.

§ 1252(a)(2)(B)(i) deprives this court of jurisdiction to review the BIA’s decision

and asks for dismissal of Mr. Torres’s petition.

II.   DISCUSSION

      “The Immigration and Nationality Act provides that ‘no court shall have

jurisdiction to review any judgment regarding the granting of relief under section

1229b.’” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir. 2009)

(quoting 8 U.S.C. § 1252(a)(2)(B)(i)) (ellipses omitted). We have construed this

jurisdictional bar to encompass “discretionary aspects of a decision concerning

cancellation of removal,” including underlying factual determinations and

determinations of whether removal would result in sufficient hardship under

8 U.S.C. § 1229b(b)(1)(D). Id. Thus, to the extent that Mr. Torres argues that

the evidence was incorrectly weighed, was insufficiently considered, or supports a

different outcome, we do not have jurisdiction over his claims. See Alzainati v.

Holder, 568 F.3d 844, 850 (10th Cir. 2009). In particular, we cannot review the

issues raised in Part II of Mr. Torres’s brief, which relate to alleged “erroneous

factual determinations.” Pet’r Br. at 22.

      Mr. Torres attempts to avoid the jurisdictional bar, however, by

characterizing some claims as alleging “legal error”—namely, the IJ’s use of

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incorrect standards in reviewing his request for cancellation. Id. at 18. He relies

on the exception to the jurisdictional bar for “questions of law.” 8 U.S.C.

§ 1252(a)(2)(D). We are not persuaded.

      Mr. Torres’s first “legal” claim is that the IJ improperly required him to

show that his removal would be “unconscionable.” Pet’r Br. at 17. But both the

IJ and the BIA stated the proper governing standard—“exceptional and extremely

unusual hardship.” Cert. Admin. R. at 2, 107. At no point did either indicate that

he was required to show that removal would be “unconscionable.”

      Second, Mr. Torres claims that the IJ improperly required him to show that

Alexa had a “propensity to becoming ill.” Pet’r Br. at 17 (internal quotation

marks omitted). But the IJ was not inventing a new legal standard. Rather, he

was assessing Alexa’s medical history in order to determine whether she would

suffer “exceptional and extremely unusual hardship” if she accompanied

Mr. Torres to Mexico. A propensity to illness could be a factor in showing

exceptional circumstances that would otherwise be absent.

      Third, Mr. Torres asserts that the IJ stated that he “‘would merit relief in

the exercise of discretion,’” id. at 18 (quoting Cert. Admin. R. at 108), yet did not

afford him relief. But discretion can be exercised only if the alien is eligible for

cancellation of removal.

      Fourth, Mr. Torres claims that the IJ failed to evaluate the future hardship

that Mr. Torres’s daughter would suffer if Mr. Torres was removed. See 8 U.S.C.

                                          -5-
§ 1229b(b)(1)(D) (stating that the alien must “establish[] that removal would

result in exceptional and extremely unusual hardship to the alien’s . . . child”

(emphasis added)); Figueroa v. Mukasey, 543 F.3d 487, 497 (9th Cir. 2008). But

the IJ did evaluate the evidence of Alexa’s future medical condition. The IJ

properly went on to analyze whether her condition would pose an exceptional and

extremely unusual hardship for her in Mexico.

       Finally, Mr. Torres has not shown that the rulings of the BIA and IJ were

so inconsistent with BIA or court precedent as to constitute errors of law.

III.   CONCLUSION

       The petition for review of the cancellation order is DENIED with respect to

Mr. Torres’s “legal” arguments. We DISMISS for lack of jurisdiction his

remaining arguments with respect to the BIA’s hardship determination. We

GRANT Mr. Torres’s motion to proceed in forma pauperis.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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