          United States Court of Appeals
                      For the First Circuit


No. 13-1322

          JORGE ALBERTO ALVARADO; IRMA YOLANDA CARDOZA,

                           Petitioners,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                           Respondent.


                 PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS



                              Before

                   Thompson, Selya, and Lipez,
                         Circuit Judges.


     John P. Garan on brief for petitioners.
     Stuart F. Delery, Assistant Attorney General, Civil Division,
John S. Hogan, Senior Litigation Counsel, Office of Immigration
Litigation, and Robbin K. Blaya, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.




                        February 14, 2014
              THOMPSON, Circuit Judge.           Petitioners Jorge Alberto

Alvarado and Irma Yolanda Cardoza, husband and wife, left their

rural Guatemalan village and entered the United States illegally

through the Arizona desert in the mid-1990s.             They petition for

review   of    the   Board   of    Immigration    Appeals'   (BIA)   decision

upholding an Immigration Judge's (IJ) denial of their application

for cancellation of removal.         After careful consideration, we deny

their petition in part and otherwise dismiss it for want of

jurisdiction.

                                  I. Background

              Alvarado and Cardoza have lived and worked in Rhode

Island and Massachusetts for over fifteen years.              They have two

sons: Jorge, born in Guatemala in 1993, and Brian, born in the

United States in 1998.        In 2008, the couple applied for asylum,

which alerted immigration authorities to their presence.               Their

application was denied, and removal proceedings began shortly

thereafter.

              In a hearing before an IJ, Alvarado and Cardoza conceded

removability but sought cancellation of removal based on the

hardship that their departure would cause for their son Brian.            To

be eligible for cancellation of removal, petitioners must show,

among other things, that their removal would result in "exceptional

and extremely unusual hardship" to a qualifying relative, such as

an American-citizen child. 8 U.S.C. § 1229b(b)(1)(D). Petitioners


                                       -2-
testified that Brian, who was twelve years old on the day of the

hearing, would accompany them to Guatemala if they were ordered

removed.    Having been born in the United States and never having

visited    Guatemala,    Brian,   they    explained,     would   face    several

formidable obstacles in Guatemala.

            First, as a gifted student, Brian would not be able to

reach his full potential in Guatemala because of the lack of

educational opportunities available there.                Sallie D'Agostino

Pisaturo, a certified school psychologist with a master's degree in

mental health counseling, testified on petitioners' behalf.               After

conducting a psycho-educational evaluation of Brian, speaking with

his parents, and contacting his school, Pisaturo concluded that, in

terms of academic skill, Brian was one grade level or higher than

his peers and possessed "superior intellectual ability."                Pisaturo

had never been to Guatemala, but she had read widely about the

Guatemalan school system. Based on her research, she was concerned

that Brian would not receive an appropriate education in Guatemala

due to the lack of quality teachers and enrichment programs for

high-achieving       students,   particularly     in   rural   regions.     She

testified that Brian's needs are "as specialized as those of a

child with a learning disability or a developmental disorder

because    he   is   gifted."     She    warned   that   Brian   could    become

discouraged and develop behavioral problems if not placed in a

program that offers the stimulation he requires.


                                        -3-
          Second, although Brian tested very well in some areas,

Pisaturo found that Brian has "weaknesses with getting overloaded

easily and [has] some memory difficulties."   Brian's parents worry

that he is suffering from attention deficit hyperactivity disorder,

though it is unclear whether he has ever been diagnosed.       They

claim   his    deficiencies    require   specialized    educational

interventions that are widely available in the United States but

not in Guatemala.

          Third, Brian's inability to read, write, or fluently

speak Spanish would further hinder his ability to receive an

education in Guatemala.   Although Brian's parents speak Spanish at

home, Brian resists speaking Spanish and has been educated entirely

in English.   Brian's poor Spanish skills would make it difficult

for him to succeed in school, socialize with his peers, and find a

good job in Guatemala.

          Fourth, if the family returned to Joyabaj, Guatemala, the

rural area where petitioners were born, Brian and his family would

have to overcome steep practical hurdles. For example, Brian would

have to travel at least an hour by bus to reach the nearest school.

Besides, Alvarado testified, he could never afford to pay Brian's

tuition and bus fare with his income as a farmer in Guatemala.

          Finally, and worst of all, Alvarado said, he would fear

for Brian's safety in Guatemala, where kidnappings, gangs, and




                                -4-
violent crime are rampant, especially because Brian lacks "street

smarts" and does not speak the language.

           Taking all this into consideration, the IJ nevertheless

found that petitioners had not established that Brian would suffer

"exceptional and extremely unusual hardship" if his parents were

removed to Guatemala.     She acknowledged Pisaturo's testimony that

Brian was gifted and might not have access to as good an education

in Guatemala as he would in the United States.          However, she said,

simply because Brian could receive a higher level of education in

the United States did not mean that he had the right to expect a

comparable level of education in Guatemala.         Moreover, petitioners

had not shown that an appropriate education did not exist for Brian

in Guatemala; rather, Brian's family might have to send him to

school far away from their rural village or pay private school

tuition to obtain the education best-suited to his needs. The fact

that a high-quality education might be more difficult or more

expensive to get in Guatemala than in the United States did not

trigger "exceptional and extremely unusual hardship" for Brian.

           As to the other roadblocks cited by petitioners, the IJ

concluded that "[b]asically, there is absolutely nothing else,

other than the normal difficulties that individual[s] have to go

through   when   relocating    to    another   country,        to   base   this

exceptional and extremely unusual hardship upon." Accordingly, she

found   that   Brian's   parents    had   failed   to   meet    the   hardship


                                    -5-
eligibility requirement for cancellation of removal. She therefore

denied their application and ordered them removed to Guatemala.

           On appeal, the BIA dismissed the couple's petition for

relief because it discerned no clear error in the IJ's factual

findings   and   agreed   with     the   IJ's   legal    and   discretionary

determinations. Hoping to reverse this trend, Alvarado and Cardoza

ask us to review the BIA's decision.

                             II. Discussion

           Petitioners say the BIA committed legal error when it

affirmed the IJ's denial of their application for cancellation of

removal.   The government counters that we lack jurisdiction to

evaluate petitioners' claim.

           We begin our discussion with a basic overview of the

relief petitioners seek.         Cancellation of removal is a form of

discretionary    relief   which,    if   granted,   permits    an   otherwise

removable non-resident alien to remain in the United States. Ayeni

v. Holder, 617 F.3d 67, 70 (1st Cir. 2010).             It is available only

if an alien: (a) has resided in the United States for a continuous

period of at least ten years immediately preceding his application;

(b) has been a person of good moral character during that period;

(c) has not been convicted of certain enumerated offenses; and (d)

has established that removal would result in exceptional and

extremely unusual hardship to a qualifying family member, such as




                                     -6-
an American-citizen child.      Id. (citing 8 U.S.C. § 1229b(b)(1));

Toribio-Chavez v. Holder, 611 F.3d 57, 64 (1st Cir. 2010).

          The first three requirements are not at issue here.1

Accordingly, we proceed to the fourth prong: whether petitioners

have shown that their American-citizen son Brian is likely to

suffer exceptional and extremely unusual hardship if his parents

are removed to Guatemala.      See 8 U.S.C. § 1229b(b)(1)(D).

          This is a high bar to clear.     It requires petitioners to

demonstrate that Brian would suffer hardship that is "substantially

different from, or beyond, that which would normally be expected

from the deportation" of a close relative, though it need not be

"unconscionable."   See Matter of Monreal-Aguinaga, 23 I. & N. Dec.

56, 60, 65 (BIA 2001); see also Matter of Gonzalez Recinas, 23 I.

& N. Dec. 467, 468 (BIA 2002).

          Statutes narrowly circumscribe our review on this point.

Courts generally lack jurisdiction to review a judgment concerning

discretionary relief sought under the cancellation of removal

provision. 8 U.S.C. § 1252(a)(2)(B)(i); see Ayeni, 617 F.3d at 70;

Toribio-Chavez,   611   F.3d   at   64.   Constitutional   claims   and

questions of law, however, are excepted from this prohibition.

8 U.S.C. § 1252(a)(2)(D); see Ayeni, 617 F.3d at 70; Toribio-


     1
       The IJ found that petitioners "definitely established" good
moral character, but only Alvarado (not Cardoza) had demonstrated
continuous presence for the required ten-year period. Because this
petition is resolved by our review of the hardship prong, we need
not address the continuous-presence element further.

                                    -7-
Chavez, 611 F.3d at 64.      Thus, we have jurisdiction to consider

this petition only if it raises a question of constitutional or

legal dimension.    See Ayeni, 617 F.3d at 70.

           The presence of a constitutional or legal question "is a

matter of substance, not a function of labeling."          Id. at 70-71.

Styling a factual claim as constitutional or legal error will not

transform an unreviewable issue of fact into a reviewable issue of

law.   Id. at 71; Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007).

Rather, only a "colorable" claim of constitutional or legal error

— i.e., a constitutional or legal argument that is at least

potentially valid — can give rise to our jurisdiction.            Pan, 489

F.3d at 84; see also Ayeni, 617 F.3d at 71.

           Generally, whether a petitioner satisfies the hardship

requirement for cancellation of removal is a factual, not legal,

inquiry.   See Parvez v. Keisler, 506 F.3d 93, 96 (1st Cir. 2007).

For this reason, we typically decline to review a determination of

whether a petitioner has met this burden.          Castro v. Holder, 727

F.3d 125, 128 (1st Cir. 2013).     While we retain jurisdiction over

claims that the IJ or the BIA imposed a new or incorrect legal

standard, see Ayeni, 617 F.3d at 71, we lack jurisdiction to

evaluate   the   relative   evidentiary   weight    or   level   of   detail

accorded to specific facts in the agency's hardship determination,

see, e.g., Hasan v. Holder, 673 F.3d 26, 32-33 (1st Cir. 2012) (no

jurisdiction to review a claim that the BIA made only a "cursory"


                                  -8-
mention of petitioners' fear for their daughter's safety); Ayeni,

617 F.3d at 72-73 (no jurisdiction to determine whether the BIA

"neglected adequately to weigh the seriousness of [petitioner's]

eldest child's asthma"); Elysee v. Gonzales, 437 F.3d 221, 223-24

(1st Cir. 2006) (no jurisdiction to evaluate whether the BIA erred

by "complete[ly] disregard[ing]" certain hardships to petitioner's

children and giving "unfair weight" to other facts).

           Here, in an effort to avoid the jurisdictional bar,

petitioners attempt to frame their claims from a legal perspective.

First, petitioners say the IJ ignored relevant case law because she

did not cite Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA

2001) ("Monreal"), which has been described as one of the BIA's

"seminal interpretations" of the "exceptional and extremely unusual

hardship" requirement.   Recinas, 23 I. & N. Dec. at 472-73.       This

omission, petitioners claim, led the IJ to commit legal error

because   she   "completely   misunderstood   the   educational   needs

hardship" that they alleged Brian would experience.           Second,

petitioners say the IJ "ignored other factors that should have been

included in her analysis" and failed to "weigh[] the hardships to

Brian in the aggregate" as precedent requires.

           The government counters that petitioners' true quarrel is

not with the legal framework applied by the IJ, but with the IJ's

factual determination that the hardship Brian would suffer as a

gifted student did not qualify his parents for cancellation of


                                  -9-
removal.   At best, the government says, petitioners challenge the

way the IJ weighed the evidence.   Because we are not empowered to

second-guess either an IJ's finding of fact, see Ayeni, 617 F.3d at

71-73, or her balancing of the evidence, see Elysee, 437 F.3d at

223-24, the government contends that we lack jurisdiction to decide

petitioners' claims.

           It is difficult to pigeonhole the issues raised by

petitioners as either factual or legal.       However, though our

jurisdiction turns on this question, we need not resolve it.    If

the issues are factual, we have no jurisdiction; conversely, if the

issues are legal, for the reasons that follow, the decision of the

BIA affirming the IJ must be upheld. Consequently, we believe that

this is a case in which we should sidestep the jurisdictional

question and proceed directly to the arguments on the merits.

           We pause momentarily to note that, ordinarily, federal

courts may not exercise "hypothetical jurisdiction."    Royal Siam

Corp. v. Chertoff, 484 F.3d 139, 143 (1st Cir. 2007).     In other

words, we usually "may not assume the existence of jurisdiction in

order to decide the merits of a case or controversy."     Id.   But

unlike Article III jurisdiction, which we may never dodge, we may

occasionally bypass statutory jurisdiction.    Id. at 144 (citing

Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 426 &

n.11 (1st Cir. 2007); Nisselson v. Lernout, 469 F.3d 143, 150–51

(1st Cir. 2006); Parella v. Ret. Bd. of R.I. Emps.' Ret. Sys., 173


                               -10-
F.3d 46, 54 (1st Cir. 1999)).           In the immigration context, we have

put aside ambiguous jurisdictional questions when precedent clearly

dictates the result on the merits.                See, e.g., Royal Siam Corp.,

484 F.3d at 144; Rivera-Martinez v. Ashcroft, 389 F.3d 207, 209 n.7

(1st Cir. 2004) (per curiam); Seale v. INS, 323 F.3d 150, 152, 157

(1st       Cir.    2003).   Here,   the    question    of    whether   we   possess

statutory jurisdiction under 8 U.S.C. § 1252(a)(2)(D) is not easily

answered, but the outcome on the merits is quite straightforward.

Thus, without further ado, we pass over the jurisdictional issue

and press on with the substance of petitioners' claims.

                  First, petitioners say that the IJ improperly ignored

critical case law when she did not cite Monreal in her analysis.

In Monreal, the BIA laid out the factors to be considered when

assessing          "exceptional   and     extremely    unusual     hardship"     in

cancellation of removal cases, including the age, health, and

circumstances of the qualifying relative.              23 I. & N. Dec. at 63.

The BIA cribbed these factors from its earlier decision, Matter of

Anderson, 16 I. & N. Dec. 596 (BIA 1978), which described the

rubric       for     evaluating   "extreme       hardship"    in   suspension   of

deportation cases.2         Monreal, 23 I. & N. Dec. at 63.         As an example


       2
       In 1996, Congress replaced the provisions providing for
suspension of deportation, 8 U.S.C. § 1254(a)(1) (1994) (repealed
1996), with provisions providing for cancellation of removal,
8 U.S.C. § 1229b(b). Monreal, 23 I. & N. Dec. at 58. "Under the
prior law regarding suspension of deportation, an alien . . .
seeking that form of relief had to establish that he or his
qualifying relative would suffer 'extreme hardship' if deported."

                                          -11-
of someone who might be able to demonstrate the requisite level of

hardship based on these factors, the BIA said a "strong applicant

might have a qualifying child with . . . compelling special needs

in school."     Id. (emphasis added).

             Because the IJ did not cite Monreal, petitioners aver

that she did not consider whether Brian's needs as a gifted student

could be deemed "compelling special needs in school" for the

purpose   of    establishing   "exceptional   and   extremely   unusual

hardship."     They say the IJ instead misconstrued their argument as

asserting that Brian would suffer in Guatemala because he would not

receive the same level of education there as he would in the United

States — a deprivation which the BIA repeatedly has found does not

rise to the level of "exceptional and extremely unusual hardship."

See, e.g., Matter of Andazola-Rivas, 23 I. & N. Dec. 319, 323 (BIA

2002).

             While it is true that the IJ did not refer to Monreal by

name, it is clear that she followed its precepts in her analysis.

Like the BIA in Monreal, she listed the factors to be considered

when assessing "exceptional and extremely unusual hardship" in

cancellation of removal cases, citing Anderson as the source.       See

Monreal, 23 I. & N. Dec. at 63.    Moreover, as part of her balancing



Id. (citing 8 U.S.C. § 1254(a)(1) (1994) (repealed 1996)).
Congress intended to tighten the hardship standard by moving from
"extreme hardship" to "exceptional and extremely unusual hardship."
Id. at 59 (citing H.R. Conf. Rep. No. 104-828 (1996)).

                                  -12-
of those factors, she explicitly considered Brian's heightened

educational needs as a gifted child, but concluded that (1) the

fact that Brian might receive a better education in the United

States did not mean that he had a right to receive a comparable

education in Guatemala, and (2) petitioners had not shown that

Brian could not obtain an adequate education in Guatemala, though

it might be more costly or less convenient for his family to

procure it.    And though petitioners spill much ink explaining how

gifted students, as well as students with learning disabilities,

can have "compelling special needs in school" capable of supporting

an "exceptional and extremely unusual hardship" finding, the IJ

here never suggested the contrary.         Rather, the IJ found that the

hardship that Brian in particular would suffer as a gifted student

if his parents were removed would not be "exceptional and extremely

unusual."

            As a result, we cannot agree with petitioners that the IJ

applied an inappropriate version of the "exceptional and extremely

unusual hardship" standard with respect to Brian's educational

needs in her analysis.      And, to the extent petitioners disagree

with the IJ's factual determination that the hardship Brian would

suffer as a gifted student did not qualify as "exceptional and

extremely unusual," we lack jurisdiction to review their claim.

            Second,   petitioners    say   the   IJ   did   not   adequately

consider the hardships Brian would face outside the classroom if


                                    -13-
his parents were removed to Guatemala, including separation from

his community in the United States, financial detriment, lack of

health insurance, and the language barrier in Guatemala.                  They

further argue that the IJ failed to weigh those hardships to Brian

in the aggregate as precedent requires.

           However, as the BIA rightly noted, the IJ did, in fact,

consider   the   relevant     hardship     factors    cumulatively.       When

outlining the applicable legal standards, the IJ acknowledged that

"[r]elevant factors, though not exceptional and extremely unusual

in and of themselves, can be considered in the aggregate when

determining   whether    or   not   exceptional      and   extremely   unusual

hardship exists."       (Emphasis added.)       She went on to say that

"while political and economic conditions in a home country are

relevant, they do not justify a grant of relief unless there is an

additional factor which, combined, make removal extremely and

unusually hard on the qualifying relative."                (Emphasis added.)

When the IJ finally denied petitioners' application, she did so

"based on all of the facts and circumstances."

           Thus, to the extent petitioners' argument is that the IJ

erred by analyzing the relevant factors causing hardship to Brian

individually and not in the aggregate, the claim must fail.

Furthermore, to the extent petitioners' argument is a bare attack

on the relative weight the IJ accorded particular factors in her




                                    -14-
hardship-balancing analysis, we have no jurisdiction to hear their

claim.   See Elysee, 437 F.3d at 224.

                             III. Conclusion

            Before we conclude, we take a moment to express our

regret that we can do nothing more for petitioners and their

children.     The   record   amply    confirms   the   IJ's   finding   that

petitioners have established good moral character: they perform

community service with their church, have won volunteer awards, and

have consistently filed their tax returns and W-2s.               Moreover,

petitioners' now fifteen-year-old American-citizen son, Brian, has

never known life outside the United States.        Uprooting him at this

stage of his development seems particularly harsh.            But the law as

it now stands is not on petitioners' side, and so we are duty-bound

to find as we do.

            For the foregoing reasons, the petition is denied in part

and otherwise dismissed for lack of jurisdiction.




                                     -15-
