                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

ELFIDO MENDEZ-CASTRO; ROSA          
IMELDA MENDEZ,                            No. 06-70362
                     Petitioners,         Agency Nos.
               v.                        A92-693-802
MICHAEL B. MUKASEY, Attorney              A77-110-809
General,                                   OPINION
                    Respondent.
                                    
        On Petition for Review of an Order of the
             Board of Immigration Appeals

                 Argued and Submitted
         February 6, 2008—Pasadena, California

                 Filed January 12, 2009

          Before: Alex Kozinski, Chief Judge,
    Diarmuid F. O’Scannlain, and William A. Fletcher,
                    Circuit Judges.

              Opinion by Judge O’Scannlain




                          389
392              MENDEZ-CASTRO v. MUKASEY


                         COUNSEL

Henry Weissman, Munger, Tolles & Olson LLP, Los Ange-
les, California, argued the cause for the petitioners and filed
briefs.

William C. Minick, Attorney, Office of Immigration Litiga-
tion, U.S. Department of Justice, Washington, DC, argued the
cause for the respondent and filed a brief; Peter D. Keisler,
Assistant Attorney General, Civil Division, and Linda S.
Werney, Assistant Director, were on the brief.


                         OPINION

O’SCANNLAIN, Circuit Judge:

  We must decide whether we have jurisdiction to review the
Board of Immigration Appeals’ application of its own prece-
dent in determining whether the removal of two aliens would
cause their children to suffer “exceptional and extremely
unusual hardship.”

                               I

   Elfido Mendez-Castro and Rosa Imelda Mendez (“the peti-
tioners”) are natives and citizens of Mexico who entered the
                  MENDEZ-CASTRO v. MUKASEY                  393
United States without inspection in October 1985 and March
1987, respectively. The petitioners separately were served
with Notices to Appear charging them as removable under 8
U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United
States without having been admitted or paroled.

   The petitioners filed applications for cancellation of
removal arguing, among other things, that their removal to
Mexico would impose an “exceptional and extremely unusual
hardship” under 8 U.S.C. § 1229b(b)(1)(D) on their four chil-
dren, all of whom are United States citizens. One of their chil-
dren, a daughter named Mireya, has a speech disorder that
prevents her from properly pronouncing certain words. At a
hearing on their applications before an immigration judge
(“IJ”), the petitioners expressed concern that, while Mireya’s
condition had improved from special education in the United
States, her speech would regress were she to move to Mexico.
Another child, Mariana, is an honor student who cannot read
or write in Spanish. The petitioners expressed concern at the
hearing that Mariana would not be able to continue her aca-
demic progress were she to reside in Mexico with her parents.
Regarding their two remaining children, the petitioners
expressed general concern that removal would strip them of
educational opportunities and that it would separate them
from family members who reside in the United States.

   The IJ rejected the petitioners’ arguments. The IJ noted that
“the most recent educational records on Mireya indicate that
her speaking skills, her overall academic skills, and her social
skills, have significantly improved in the United States,” and
furthermore that she “has the legal potential for a free and
thorough education in Mexico.” Concerning Mariana, the IJ
found that “owing to her intellectual skill, her fluency in the
speaking of Spanish, and her family contact in Mexico and
owing to what appears to be her future legal rights to Mexican
citizenship, and a free education in Mexico, there is no evi-
dence that the relocation of Mariana to Mexico would cause
her the kind and scope of challenges which would equate with
394                  MENDEZ-CASTRO v. MUKASEY
‘exceptional and extremely unusual hardship.’ ” Lastly, the IJ
found that the removal of the petitioners’ other children
“would [not] cause them a degree of hardship that would
come close to the phrase ‘exceptional and extremely unusu-
al,’ ” because of their good health, youth and ability to speak
Spanish.

   The IJ therefore denied the petitioners’ applications for
cancellation of removal. In a per curiam opinion, the Board of
Immigration Appeals (“BIA”) affirmed the IJ’s decision and
cited Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994).1
The petitioners timely filed a petition for review.

                                    II

   The petitioners argue that the IJ failed to apply BIA prece-
dent concerning whether Mireya’s special educational needs
rose to the level of an “exceptional and extremely unusual
hardship.” The petitioners also argue that the IJ failed to ren-
der a cumulative analysis of the hardship that removal would
cause the petitioners’ children to suffer. As always, we first
must determine whether we have jurisdiction to review such
claims. Miguel-Miguel v. Gonzales, 500 F.3d 941, 944 (9th
Cir. 2007).

                                    A

   [1] Under 8 U.S.C. § 1229b(b)(1), “[t]he Attorney General
may cancel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an alien who is
inadmissible or deportable from the United States,” if the
alien satisfies four criteria, including a showing “that removal
  1
    “Where . . . the BIA affirms the IJ pursuant to [Burbano], and does not
express disagreement with any part of the IJ’s decision, the BIA effec-
tively adopts the IJ’s decision in its entirety.” Moreno-Morante v. Gon-
zales, 490 F.3d 1172, 1174 (9th Cir. 2007). Accordingly, we “review the
IJ’s decision as if it were the BIA’s.” Id.
                  MENDEZ-CASTRO v. MUKASEY                   395
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 res-
idence.” Prior to the enactment of the REAL ID Act of 2005,
Pub. L. No. 109-13, div. B, 119 Stat. 231, we held that 8
U.S.C. § 1252(a)(2)(B)(i) strips us of jurisdiction to review an
IJ’s discretionary determination that an alien has failed to sat-
isfy such standard. See Romero-Torres v. Ashcroft, 327 F.3d
887, 891-92 (9th Cir. 2003).

   [2] The REAL ID Act amended § 1252 by retaining lan-
guage foreclosing our ability to review “any judgment regard-
ing the granting of relief under section . . . 1229b,” but adding
an exception for “constitutional claims or questions of law
raised upon a petition for review filed with an appropriate
court of appeals.” Pub. L. No. 109-13, div. B.,
§ 106(a)(1)(A)(iii), 119 Stat. 231, 310; see 8 U.S.C.
§§ 1252(a)(2)(B)(i), (a)(2)(D). The statute thereby “restored
judicial review of constitutional claims and questions of law
presented in petitions for review of final removal orders.”
Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.
2005) (quoting Fernandez-Ruiz v. Gonzales, 410 F.3d 585,
587 (9th Cir. 2005)). However, it “did not alter” our prior
holdings that we are barred from reviewing the merits of a
hardship determination. Id. at 929-30.

   [3] Moreover, we have made clear that any challenge of an
IJ’s discretionary determination must present a colorable
claim. See id. at 930. “To be colorable in this context, the
alleged violation need not be substantial, but the claim must
have some possible validity.” Id. (internal quotation marks
omitted); see Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th
Cir. 2001) (“[A] petitioner may not create the jurisdiction that
Congress chose to remove simply by cloaking an abuse of dis-
cretion argument in constitutional garb . . . To determine
whether we have jurisdiction over claims labeled as due pro-
cess violations, we must look beyond the label.”); see also
Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008)
396               MENDEZ-CASTRO v. MUKASEY
(applying the colorableness requirement to questions of law
raised in a petition for review). A petition for review that fails
to present such a colorable claim “is nothing more than an
argument that the IJ abused his discretion” in determining that
the petitioner “did not meet the requirement of ‘exceptional
and extremely unusual hardship,’ ” which is “a matter over
which we have no jurisdiction.” Martinez-Rosas, 424 F.3d at
930. Because the petitioner bears the burden of raising a col-
orable constitutional claim or question of law, see id., it nec-
essarily follows that we must presume that we lack
jurisdiction absent such a showing.

                                B

   The petitioners concede that we do not have jurisdiction to
reweigh the evidence underlying the IJ’s conclusion that
removal would not cause their children to suffer an “excep-
tional and extremely unusual hardship.” They contend, how-
ever, that their petition for review does not directly attack the
merits of the IJ’s hardship determination, but that it instead
presents the question of law that the IJ’s decision failed to
apply the correct legal standard governing a hardship determi-
nation. The petitioners also contend that the IJ’s decision was
factually inconsistent with prior agency precedent concerning
a qualifying relative’s special educational needs.

                                1

   [4] We have held that whether an IJ failed to apply a con-
trolling standard governing a discretionary determination is a
question over which we have jurisdiction under
§ 1252(a)(2)(D). See Afridi v. Gonzales, 442 F.3d 1212, 1218
(9th Cir. 2006) (holding that, “[w]hile we cannot reweigh evi-
dence” underlying a discretionary determination, “we can
determine whether the BIA applied the correct legal standard
in making its determination”), overruled on other grounds by
Estrada-Espinoza v. Mukasey, No. 05-75850, 2008 WL
4615681, at *9 n.15 (9th Cir., Oct. 20, 2008); see also Khan
                     MENDEZ-CASTRO v. MUKASEY                        397
v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) (“[W]here, as
here, a petitioner argues that the agency applied an erroneous
legal standard in making a discretionary determination, the
petitioner raises a question of law, which we have jurisdiction
to review.”). The petitioners’ first claim is therefore clearly
colorable and we have jurisdiction to address it, so long as it
satisfies the general requirement that a claim on appeal not be
frivolous. See Barco-Sandoval, 516 F.3d at 40 (“While the
argument that a discretionary decision was based on a legally
erroneous standard raises a question of law . . . we lack juris-
diction to review any legal argument that is so insubstantial
and frivolous as to be inadequate to invoke federal-question
jurisdiction.”) (internal quotation marks and citation omitted).

   [5] The petitioners argue that the IJ failed to adhere to the
requirement under In re Monreal-Aguinaga, 23 I. & N. Dec.
56, 63-64 (BIA 2001), that an IJ consider the health of a peti-
tioner’s qualifying relatives, including any “compelling spe-
cial needs in school,” in rendering a hardship determination
under 8 U.S.C. 1229b(b)(1)(D).2 However, a cursory review
of the IJ’s decision reveals that such argument fails on two
independent grounds: the IJ cited Monreal in rendering its
decision and, moreover, the IJ explicitly considered Mireya’s
speech impediment in rendering its opinion. While the peti-
tioners also would have us determine whether the IJ took into
account the purportedly “strong case” of hardship that arises
where a qualifying relative has special educational needs,
such an argument is inherently intertwined with the IJ’s
assessment of the facts, which we lack jurisdiction to review.3
  2
     Because “exceptional and extremely unusual hardship” is not statu-
torily defined, we must look to BIA precedent setting forth the required
considerations in applying such standard. See Afridi, 442 F.3d at 1219.
   3
     Contrary to the petitioners’ contention at oral argument, Monreal
nowhere requires that the IJ consider whether their United States citizen
children “would be deprived a meaningful education” upon removal.
While the petitioners also point to an isolated statement in another BIA
decision denying cancellation of removal because the alien “ha[d] not
shown that her children would be deprived of all schooling or of an oppor-
tunity to obtain any education [upon removal],” In re Andazola-Rivas, 23
I. & N. Dec. 319, 323 (BIA 2002), the BIA did not state that such is a
required consideration in every case.
398               MENDEZ-CASTRO v. MUKASEY
   [6] The record also patently belies the petitioners’ conten-
tion that the IJ failed to render a cumulative analysis of the
hardship that removal would inflict on their children. See
Recinas, 23 I. & N. Dec. at 472 (noting that Monreal “re-
quires the assessment of hardship factors in their totality,
often termed a ‘cumulative analysis’ ”). As noted, the IJ
expressly cited and applied Monreal in rendering its decision,
which is all our review requires. In any event, the IJ’s deci-
sion discussed the children as a group, and the IJ concluded
that insufficient hardship would be suffered by “any or all” of
the petitioners’ children.

   [7] Because the IJ applied the correct legal standard in this
case, and because we may not proceed further to examine its
application of the facts of this case to the “exceptional and
extremely unusual hardship” standard, we must conclude that
the petitioners’ claims are “so insubstantial and frivolous” as
to preclude our jurisdiction over them. Barco-Sandoval, 516
F.3d at 40.

                               2

   [8] We also lack jurisdiction to address the petitioners’
claim that the IJ’s decision in this case is factually inconsis-
tent with prior agency hardship determinations. The “excep-
tional and extremely unusual hardship” standard “is almost
necessarily a subjective question” that depends on the “identi-
ty” and the “value judgment of the person or entity examining
the issue.” Romero-Torres, 327 F.3d at 890-91 (internal quo-
tation marks omitted); see also Martinez-Rosas, 424 F.3d at
930 (noting that a hardship determination is “subjective [and]
discretionary”). Accordingly, a challenge to an IJ’s hardship
determination on such ground would require us step into the
IJ’s shoes and reweigh the facts in light of the agency’s sub-
jective treatment of purportedly similar cases. This second
claim is not even colorable, but merely constitutes an attempt
                      MENDEZ-CASTRO v. MUKASEY                            399
to “cloak[ ] an abuse of discretion argument” in the garb of a
question of law.4 Torres-Aguilar, 246 F.3d at 1271.

   This case is therefore distinguishable from Ramadan v.
Gonzales, 479 F.3d 646 (9th Cir. 2007), in which we held that
8 U.S.C. § 1252(a)(2)(D) confers jurisdiction to review the
BIA’s application of undisputed facts in determining whether
a petitioner satisfies the “changed circumstances” standard
under 8 U.S.C. § 1158(a)(2)(D). 479 F.3d at 648, 650. In
Ramadan, we had jurisdiction to review the application of
facts to the “changed circumstances” standard because such
standard “does not depend[ ] upon the identity of the person
or entity examining the issue, but rather is less value-laden
and does not reflect the decision maker’s beliefs in and
assessment of worth and principle.” Id. at 656 (internal quota-
tion marks omitted). Because, as noted, we have held that the
“exceptional and extremely unusual hardship” standard is
subjective, and thus that it does implicate the “value judgment
of the person or entity examining the issue,” Romero-Torres,
327 F.3d at 890-91, we must conclude that we lack jurisdic-
tion to review an IJ’s application of such standard to the facts
of a case, be they disputed or otherwise.5
  4
      Thus, we also cannot review the petitioners’ claim that the IJ’s decision
violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et
seq., by providing an unexplained departure from prior agency practice.
See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.
967, 981 (2005) (noting that an “[u]nexplained [agency] inconsistency is
. . . a reason for holding an interpretation to be an arbitrary and capricious
change from agency practice under the [APA]”); Abebe v. Gonzales, 493
F.3d 1092, 1102 (9th Cir. 2007) (reviewing whether the BIA “consistently
interpreted the [relevant] test one way and then reversed course without
an adequate explanation”). Even if we had jurisdiction under
§ 1252(a)(2)(D) to review whether the denial of cancellation of removal
in this case violated the APA, we simply cannot determine whether the
BIA has inconsistently applied a determination founded on the “identity”
and “value judgment” of the entity deciding it.
    5
      We note that two of our recent opinions have identified, but expressly
declined to resolve, an apparent tension between Afridi and Ramadan
400                  MENDEZ-CASTRO v. MUKASEY
                                    III

   [9] For the foregoing reasons, the petition for review is

   DISMISSED.




regarding our jurisdiction to review discretionary decisions under the
REAL ID Act. See Husyev v. Mukasey, 528 F.3d 1172, 1179 (9th Cir.
2008); see also Dhital v. Mukasey, 532 F.3d 1044, 1049 n.2 (9th Cir.
2008) (per curiam). That is, while Afridi held that we have jurisdiction “to
review questions of law presented in petitions for review . . . even those
pertaining to otherwise discretionary determinations,” 442 F.3d at 1218
(emphasis added), Ramadan concluded that the REAL ID Act “does not
restore jurisdiction over discretionary determinations,” 479 F.3d at 654.
See Husyev, 528 F.3d at 1179 (noting that Ramadan reached a “contrary
conclusion” regarding our jurisdiction to review discretionary determina-
tions). We need not resolve such tension here, since we hold that this
claim involves neither a question of law nor a non-subjective determina-
tion.
   We further note that Ramadan is in tension with Romero-Torres, where
we held that “an inquiry is discretionary where it is a subjective question
that depends on the value judgment of the person or entity examining the
issue.” Romero-Torres, 327 F.3d at 891. Thus, while Ramadan distin-
guished between discretionary and subjective standards, Romero-Torres
held that the two are intertwined. In any event, because our precedent
clearly establishes that the “exceptional and extremely unusual hardship”
standard is subjective, see, e.g., Martinez-Rosas, 424 F.3d at 930, we need
not resolve such potential conflict.
