                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 07-3611
                                     ___________


Edgar Noriega Herrera,                     *
                                           *
            Petitioner,                    *
                                           *   Petition for Review of
      v.                                   *   an Order of the
                                           *   Board of Immigration Appeals.
Michael Mukasey, Attorney                  *
General of the United States,              *   [UNPUBLISHED]
                                           *
            Respondent.                    *

                                     ___________

                                Submitted: June 12, 2008
                                   Filed: June 27, 2008
                                    ___________

Before MURPHY, BYE, and SHEPHERD, Circuit Judges.
                           ___________

PER CURIAM.

       Edgar Noriega Herrera, a citizen of Guatemala, petitions for review of an order
of the Board of Immigration Appeals (BIA) dismissing his appeal from the denial of
his application for cancellation of removal by an Immigration Judge (IJ). Herrera
based his request on the hardship which removal would cause his young son, a United
States citizen who has asthma. The IJ determined that Herrera had not met the
statutory standard of demonstrating that the removal would result in "exceptional and
extremely unusual hardship," noting that there was evidence that his son's asthma
might improve with time and that Herrera had not shown that his son's asthma
medication would be unavailable or cost prohibitive in Guatemala. See 8 U.S.C. §
1229b(b)(1) (eligibility requirements for cancellation of removal). Herrera argues that
the IJ violated his due process and equal protection rights by applying an incorrect
standard for hardship and by misinterpreting or ignoring medical evidence in the
record.

       Although this court does not have jurisdiction to review the discretionary denial
of cancellation of removal, see 8 U.S.C. § 1252(a)(2)(B)(i), we do have jurisdiction
over constitutional claims or questions of law raised in a petition for judicial review,
see id. § 1252(a)(2)(D).1 See also Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 439
(8th Cir. 2008); Zacarias-Velasquez v. Mukasey, 509 F.3d 429, 434 (8th Cir. 2007)
(§ 1252(a)(2)(B)(i) precludes judicial review of discretionary denials of cancellation
of removal); Munoz-Yepez v. Gonzalez, 465 F.3d 347, 351 (8th Cir. 2006)
(jurisdiction stripping provisions of § 1252(a)(2) do not apply to constitutional
claims).

       Contrary to Herrera's assertions, the record shows that the IJ applied the correct
statutory standard of "exceptional and extremely unusual hardship" in concluding that
he did not qualify for a cancellation of removal. Moreover, Herrera had a full and fair
opportunity to present his case, and his due process claim therefore fails. See
Zacarias-Velasquez, 509 F.3d at 434 (due process clause entitles immigrant to a fair
hearing, which encompasses a right to a neutral arbiter and an opportunity to present


      1
         Section 1252(a)(2)(B)(i) provides in relevant part, "[n]otwithstanding any
other provision of law . . . no court shall have jurisdiction to review any judgment
regarding the granting of relief under section . . . 1229b . . . ." Section 1252(a)(2)(D)
states, "[n]othing in [§ 1252(a)(2)(B)] . . . or in any other provision of this chapter .
. . which limits or eliminates judicial review, shall be construed as precluding review
of constitutional claims or questions of law raised upon a petition for review filed with
an appropriate court of appeals . . . ."

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evidence, offer arguments, and develop a record). We reject Herrera's equal
protection claim because he has not identified a class of similarly situated persons who
are treated dissimilarly. See Geach v. Chertoff, 444 F.3d 940, 945 (8th Cir. 2006).



       Distilled to their essence Herrera's objections, to the evaluation of the evidence
in his case and the BIA's dismissal of his appeal, challenge the substance of the IJ's
unreviewable denial of cancellation of removal. See Guled v. Mukasey, 515 F.3d 872,
880 (8th Cir. 2008). Since a petitioner may not "'create the jurisdiction that Congress
chose to remove simply by cloaking an abuse of discretion argument in constitutional
garb,'" Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir. 2006) (per curiam),
quoting Onyinkwa v. Ashcroft, 376 F.3d 797, 799 n.1 (8th Cir. 2004), these claims are
beyond the scope of our jurisdiction.

      Accordingly, we deny the petition.
                     ______________________________




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