                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          February 14, 2007
                              FO R TH E TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                             Clerk of Court

    BENITO M EZA-HER NA ND EZ,

                Petitioner,

    v.                                                       No. 06-9523
                                                        (BIA No. A73 375 431)
    ALBERTO R. GONZALES, Attorney                        (Petition for Review)
    General; DOUGLAS M AURER, Field
    Office Director, Immigration and
    Customs Enforcement, Department of
    Homeland Security, *

                Respondents.



                              OR D ER AND JUDGM ENT **


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




         This petition for review, initiated in the district court as a petition for

habeas relief and later transferred to this court pursuant to the REAL ID Act of



*
      Pursuant to Fed. R. App. P. 43(c)(2), Douglas M aurer is substituted for
M ichael Comfort as an appellee in this action.
**
       After examining the briefs and appellate record, this panel has determined
unanimously to grant 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
2005, Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311, challenges the denial by

the Board of Immigration Appeals (BIA) of petitioner’s application for

cancellation of removal. As explained below, we DISM ISS in part and DENY in

part the petition for review .

Background:

      Petitioner Benito M eza-Hernandez (M eza) w as served with a notice to

appear on February 18, 1998. He conceded removability and filed an application

for cancellation of removal under 8 U.S.C. § 1229b. Section 1229b(b)(1) requires

the alien to satisfy four criteria, two of w hich are relevant here. The alien must

establish (1) his continuous physical presence in the United States for a period of

not less than ten years, and (2) that his removal “would result in exceptional and

extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of

the United States or an alien lawfully admitted for permanent residence.”

Id. § 1229b(b)(1)(A), (D).

      Regarding the “continuous physical presence” requirement, M eza claimed

that he had lived in the United States continuously since 1987, first in Chicago,

Illinois, and then in Colorado. At his removal hearing he admitted that he had

been arrested by the INS in 1995. He remained in custody for nine days, after

which he paid $70 to return to M exico on his own. M eza testified further that he

returned to the United States after staying in M exico for only two days. W ith

respect to the “hardship” requirement, M eza claimed that, if he were removed, his

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two minor children, who are United States citizens, would be required to return

with him to M exico. Based on their medical conditions, he asserted that his

removal would result in exceptional and extremely unusual hardship to the

children. At the removal hearing, M eza testified that his daughter had problems

with her ears, but he indicated that she was able to hear. He also testified that his

son recently suffered a liver infection and had pneumonia the year before. M eza

stated that the family had no home to go to in M exico and he would have

difficulty finding a job there. He asserted there would be no free medical care in

M exico and he would not have money to pay for medical treatment for his

children.

      The immigration judge (IJ) issued an oral decision, holding that M eza

failed to establish either that his removal would result in exceptional and

extremely unusual hardship to the children, or that he had been continuously

present in the U nited States for at least ten years. The IJ also denied M eza’s

request for voluntary departure, 1 based upon a conclusion that M eza was

previously granted voluntary departure in 1995, after which he immediately

returned to the U nited States.




1
      Voluntary departure is a form of statutory relief, by which the Attorney
G eneral may permit an alien voluntarily to depart the United States at his own
expense, in lieu of being subject to, or before the completion of, removal
proceedings. 8 U.S.C. § 1229c(a)(1).

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      Referring to M eza’s testimony regarding hardship to his children, the IJ

concluded:

      Although he alleges medical problems, he has not proven any and if
      what he says is true concerning these medical problems, he certainly
      has not shown that the medication or follow-up visits would be
      unavailable in M exico or that these conditions would be exacerbated
      by the living conditions in M exico. M oreover, the children are
      young. The daughter is in the early grades of school. They are from
      a Spanish-speaking household. I cannot find that they would suffer
      this type of hardship taking into account the privations they might
      suffer from living in M exico because of the decreased standard of
      living and the medical condition also.

Admin. R. at 96-97. Regarding continuous physical presence, the IJ concluded

that M eza failed to produce objective evidence of his presence in the United

States during the first three years that he alleged. Although M eza testified he

lived in Chicago beginning in 1987, the IJ rejected as incompetent evidence a

letter purporting to confirm his employment during that time. As an alternative

ground for holding that M eza failed to establish ten years’ continuous physical

presence, the IJ determined that M eza’s return to M exico in 1995 was a voluntary

departure that interrupted his physical presence, such that M eza began to accrue

time once again upon his return to the United States. Id. at 96.

      On appeal to the BIA, M eza challenged the IJ’s determinations on the

continuous physical presence and hardship issues. He argued that the IJ erred in

concluding that his return to M exico in 1995–which M eza also characterized as a

voluntary departure in his brief to the BIA–severed his continuous presence. H e



                                         -4-
also contended that the IJ’s decision was procedurally defective because the IJ

failed to make explicit credibility determinations with respect to M eza’s

testimony regarding the period of time he claimed to have lived in Chicago and

regarding his children’s medical problems. M eza therefore sought a remand in

order to allow the IJ to make the missing credibility findings. The BIA affirmed

per curiam, without opinion. M eza then filed a federal habeas petition, which the

district court subsequently transferred to this court pursuant to the REAL ID Act

of 2005.

Discussion:

      M eza raises the same issues in his opening brief that he argued in his

appeal to the BIA. He also adds a new argument–which he did not make to the

BIA–that the IJ erred in finding that he was granted voluntary departure in 1995

and then improperly used that erroneous finding to disqualify him for a first

voluntary departure in 1999.

      W here the BIA summarily affirms an immigration judge’s decision, this

court reviews the IJ’s analysis as if it w ere the BIA ’s. Wiransane v. Ashcroft,

366 F.3d 889, 897 (10th Cir. 2004). But we must first determine the extent of our

jurisdiction to review the issues raised in M eza’s petition. This court has

jurisdiction to determine its jurisdiction. Latu v. Ashcroft, 375 F.3d 1012, 1017

(10th Cir. 2004). “The [Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA)] altered the availability, scope and nature of

                                         -5-
judicial review” in immigration cases. 2 M orales Ventura v. Ashcroft, 348 F.3d

1259, 1261 (10th Cir. 2003) (quotation omitted). Our review of the IJ’s

determination that M eza failed to establish “exceptional and extremely unusual

hardship” under 8 U.S.C. § 1229b is precluded by 8 U.S.C. § 1252(a)(2)(B)(i),

unless M eza raises “constitutional claims or questions of law.” Id.

§ 1252(a)(2)(D ); see also Schroeck v. Gonzales, 429 F.3d 947, 951 (10th Cir.

2005).

         M eza argues that the IJ failed to make an explicit credibility finding on the

hardship issue, and instead implicitly found his testimony not credible. H e asserts

that this argument raises a question of law because the IJ and the B IA acted ultra

vires–first in the IJ’s failure to make an adverse credibility determination, and

then in the BIA’s failure to remand for that determination or alternatively apply a

rebuttable presumption of M eza’s credibility on appeal. For this proposition,

M eza relies on case law from the BIA, this circuit and other circuits in the context

of applications for asylum, as well as on certain language in 8 U.S.C.

§ 1229a(c)(4)(C) (“There is no presumption of credibility, however, if no adverse

credibility determination is explicitly made, the applicant or witness shall have a

rebuttable presumption of credibility on appeal.”).




2
      Because the notice to appear was served after April 1, 1997, IIRIRA’s
permanent rules govern this case. See M orales Ventura v. Ashcroft, 348 F.3d
1259, 1261 (10th Cir. 2003).

                                           -6-
      This court has construed the term “questions of law ” in § 1252(a)(2)(D ) to

include “a narrow category of issues regarding statutory construction.” Diallo v.

Gonzales, 447 F.3d 1274, 1282 (10th Cir. 2006) (quotation omitted). In so

holding, we rejected a broader interpretation that would grant jurisdiction to

review “all claims having a legal dimension.” Id. at 1281. Here, M eza does not

raise a statutory construction issue with respect to the IJ’s discretionary hardship

determination. His argument that the IJ and BIA failed to correctly apply case

law does not fall within our narrow construction of “questions of law” under

Diallo. Although M eza invokes language in 8 U.S.C. § 1229a(c)(4)(C), that

provision applies only to aliens who applied for relief on or after M ay 11, 2005,

the effective date of the REAL ID Act. See Yan v. Gonzales, 438 F.3d 1249, 1251

n.3 (10th Cir. 2006). M eza submitted his application seeking cancellation of

removal in 1998. Consequently, we conclude that M eza raises no question of law

over which this court has jurisdiction with respect to the IJ’s determination that

he failed to establish exceptional and extremely unusual hardship.

      This court does have jurisdiction to review a constitutional claim raised by

M eza. See Brue v. Gonzales, 464 F.3d 1227, 1232 (10th Cir. 2006) (exercising

jurisdiction to review petitioner’s due process claim). He argues that “[t]he

failure to credit or to discredit the medical hardship testimony was tantamount to

unlaw fully suppressing it, which in turn violated the evidentiary rules that apply

in removal proceedings.” Pet’r Br. at 56. M eza asserts that this error rises to the

                                          -7-
level of a procedural due process violation, because “[t]he cumulative effect of

the ultra vires acts by the IJ and the BIA denied M r. M eza a ‘fair immigration

proceeding.’” Id. at 62. W e disagree.

      Procedural safeguards in immigration proceedings “are minimal because

aliens do not have a constitutional right to enter or remain in the United States.”

Schroeck, 429 F.3d at 952 (quotation omitted). Aliens facing removal

proceedings are entitled only to procedural due process providing “the

opportunity to be heard at a meaningful time and in a meaningful manner.” Id.

(quotation omitted). Here, M eza was not denied an opportunity to present his

case. The IJ accepted and considered all of M eza’s proffered testimony on the

issue of exceptional and extremely unusual hardship to his children. M eza’s

contention that he was denied constitutional due process because the IJ made an

implicit, rather than an explicit, credibility determination regarding the hardship

issue is w ithout merit. Nor has he established that a remand to require the IJ to

make his credibility determination explicit would have changed the result in this

case. Thus, M eza’s failure to prove prejudice also leads us to reject his due

process claim. See Duran-Hernandez v. Ashcroft, 348 F.3d 1158, 1162 (10th Cir.

2003) (rejecting due process claim because of alien’s failure to prove prejudice

resulting from challenged procedures).

      Because M eza must satisfy all four criteria in § 1229b(b)(1) in order to be

eligible for cancellation of removal, our rejection of his due process challenge to

                                         -8-
the IJ’s hardship determination also moots his challenge to the IJ’s holding that

he failed to establish ten years’ continuous physical presence in the United States.

See M orales Ventura, 348 F.3d at 1262 (holding that lack of jurisdiction to review

challenge to hardship determination mooted challenge to continuous presence

determination). “As this challenge is moot, we have no jurisdiction to resolve it.”

Id. W e therefore dismiss this portion of M eza’s petition.

      Finally, M eza argues that the IJ erred in finding that he was granted a

statutory voluntary departure in 1995. He asserts that the IJ improperly relied

upon this erroneous finding to preclude him from being eligible for a first

voluntary departure following denial of cancellation of removal in 1999. M eza

made this argument for the first time in his habeas petition. Because M eza failed

to raise this issue in his appeal to the BIA , we lack jurisdiction to review it. See

Rivera-Zurita v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991) (holding failure to

raise issue on appeal to BIA constitutes failure to exhaust administrative remedies

and deprives appellate court of jurisdiction). Thus, we dismiss as w ell this

portion of M eza’s petition for lack of jurisdiction.




                                          -9-
Conclusion:

      The petition is DISM ISSED in part for lack of jurisdiction. The remainder

of the petition is D EN IED .

                                                 Entered for the Court



                                                 W ade Brorby
                                                 Circuit Judge




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