     Case: 09-60253     Document: 00511000652         Page: 1     Date Filed: 01/11/2010



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

                                                                            FILED
                                                                         January 11, 2010
                                     No. 09-60253                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk


JULIA DOLORES ZAPETA PUAC,

                                                                        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. A 099 617 830


Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
        Petitioner Julia Dolores Zapeta Puac seeks review of a final deportation
order entered by the Board of Immigration Appeals (“BIA”). The BIA dismissed
Puac’s appeal of an immigration judge’s (“IJ”) denial of her application for
cancellation of removal, asylum, and protection under the Convention Against
Torture. Puac now petitions for a review of the denial of her application for
cancellation of removal, arguing that the BIA board member should have



        *
          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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
   Case: 09-60253          Document: 00511000652             Page: 2      Date Filed: 01/11/2010

                                             No. 09-60253

remanded or referred the case to a three-member panel and that her due process
rights were violated.
        This court reviews only the decision of the BIA and not that of the IJ,
except to the extent that the IJ's decision influenced the BIA’s decision.
Gonzalez-Maldonado v. Gonzales, 487 F.3d 975, 976 (5th Cir. 2007). Factual
findings of the BIA and IJ are reviewed for substantial evidence and questions
of law and constitutional claims are reviewed de novo. Zhu v. Gonzales, 493 F.3d
588, 593 (5th Cir. 2007).
        Puac claims that the BIA erred by issuing a “summary affirmance,” or
affirmance without opinion, under 8 C.F.R. § 1003.1(d)(4). On the contrary, the
BIA issued a four-page decision dismissing Puac’s administrative appeal. The
decision clearly stated why the BIA did not find error in the findings of the IJ.
        Puac also claims that the decision by a single BIA board member violated
agency regulations and that her case should have been referred to a three-
member panel or remanded for additional fact finding.                            These claims are
unwarranted. As stated in 8 C.F.R. § 1003.1(e): “Unless a case meets the
standards for assignment to a three-member panel under paragraph (e)(6) of this
section, all cases shall be assigned to a single Board member for disposition.”
Puac has not shown that her case meets the standards for assignment to a
three-member panel under §1003.1(e)(6). See 8 C.F.R. § 1003.1(e)(6) (defining
the limited circumstances in which review by a three-member panel is
permissible).1        Thus, the BIA’s decision by a single board member was


        1
         8 C.F.R. 1003.1(e)(6): Panel decisions. Cases may only be assigned for review by a
three-member panel if the case presents one of these circumstances:
       (i) The need to settle inconsistencies among the rulings of different immigration judges;
       (ii) The need to establish a precedent construing the meaning of laws, regulations, or procedures;
       (iii) The need to review a decision by an immigration judge or the Service that is not in
       conformity with the law or with applicable precedents;
       (iv) The need to resolve a case or controversy of major national import;
       (v) The need to review a clearly erroneous factual determination by an immigration judge; or
       (vi) The need to reverse the decision of an immigration judge or the Service, other than a reversal

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                                      No. 09-60253

permissible. See 8 C.F.R. § 1003.1(e)(5) (permitting a single BIA member to
consider the merits of a case and to issue a brief order affirming the decision
under review).
        Remand was also not warranted since the BIA was exercising de novo
review of a discretionary issue.          The BIA declined to reverse the IJ’s
determination that Puac’s departure from the United States would not result in
exceptional and extremely unusual hardship to her United States citizen child.
This is a discretionary determination. See 8 U.S.C. § 1229(b)(1) (The Attorney
General may cancel removal). The BIA retains de novo jurisdiction to review
this issue. See 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board may review questions of
law, discretion, and judgment and all other issues in appeals from decisions of
immigration judges de novo.”) Thus, the BIA did not need to remand Puac’s
case.
        Puac alleges that the BIA violated “equal protection” by failing to remand
her case and that the IJ violated “due process” by failing to consider all the
relevant factors in the hardship determination. These constitutional claims are
without merit. The IJ’s discretionary denial of relief does not amount to a
constitutional violation.       Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir.
2004)(“failure to receive relief that is purely discretionary in nature does not
amount to a deprivation of a liberty interest.”). The Fifth Amendment affords
an alien the right to “(1) notice of the charges against him, (2) a hearing before
an executive or administrative tribunal, and (3) a fair opportunity to be heard.”
Manzano-Garcia v. Gonzales, 413 F.3d 462, 470 (5th Cir. 2005). Puac has not
alleged that these requirements were not met.
         The Petitioner’s assertions do not involve any constitutional claims, but
rather “an abuse of discretion argument cloaked in constitutional garb.”


        under § 1003.1(e)(5).


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                                  No. 09-60253

Hadwani v. Gonzales, 445 F.3d 798, 800 -801 (5th Cir. 2006) (quoting
Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)). What the petitioner
asks is that this court reverse the IJ’s finding that her removal does not satisfy
the “exceptional and extremely unusual hardship” requirement needed for
cancellation of removal. This we cannot do. As noted, this is a discretionary
determination by the Attorney General. This court does not have jurisdiction to
review judgements of cancellation of removal under § 1229(b). See 8 U.S.C.
§ 1252(a)(2)(B).
      Accordingly, the petition for review must be DENIED.
      DENIED.




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