                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 20, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                              FOR THE TENTH CIRCUIT




    SANDRA LETICIA
    MARTINEZ-RODRIGUEZ,

                Petitioner,

    v.                                                   No. 08-9533
                                                     (Petition for Review)
    ERIC H. HOLDER, JR., *
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT **


Before MURPHY, McKAY, and ANDERSON, Circuit Judges.



         Sandra Leticia Martinez-Rodriguez, a native and citizen of Mexico, entered

this country illegally in 1988 when she was twelve years old. She now has three

daughters who are United States citizens. In 2004, the Department of Homeland

*
     Pursuant to Fed. R. App. P. 43(c)(2), Eric H. Holder, Jr. is substituted for
Michael B. Mukasey as the respondent in this appeal.
**
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Security issued a notice to appear charging Ms. Martinez-Rodriguez with being

subject to removal. Ms. Martinez-Rodriguez admitted removability but applied

for cancellation of removal under 8 U.S.C. § 1229b(b). 1 After an Immigration

Judge (IJ) denied her application, she appealed to the Board of Immigration

Appeals (BIA). A single member of the BIA affirmed the IJ’s decision with a

short opinion under 8 C.F.R. § 1003.1(e)(5). The BIA member agreed that, “[f]or

the reasons identified by the [IJ],” Ms. Martinez-Rodriguez did not qualify for

cancellation of removal because, while her “removal would adversely affect her


1
      Under 8 U.S.C. § 1229b(b):

      (1) In general

      The 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 –

            (A) has been physically present in the United States for a
            continuous period of not less than 10 years immediately
            preceding the date of such application;

            (B) has been a person of good moral character during such
            period;

            (C) has not been convicted of an offense under section
            1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to
            paragraph (5); and

            (D) establishes that removal 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 residence.


                                        -2-
family, the level of hardship f[ell] short of the exceptional and extremely unusual

standard set forth in section [1229b(b)(1)(D)].” Admin. R., Vol. 1 at 18. The

BIA also denied her motion to reconsider. Ms. Martinez-Rodriguez has petitioned

this court for review of the BIA’s decisions, raising three points of error: (1) that

the BIA denied her due process by adopting “[m]aterial and [e]rroneous [f]actual

[f]indings” made by the IJ, Pet’r Opening Br. at 20 (emphasis omitted); (2) that

the BIA denied her due process because neither the IJ’s nor the BIA’s decisions

showed that BIA precedent had been properly applied, and (3) that the BIA

denied her due process and failed to follow the applicable regulation because the

member assigned to the case did not forward her appeal to a three-member panel

for review.

                                           I

      Because the BIA member assigned to the case issued a brief order under

§ 1003.1(e)(5), we review that independent decision, which constitutes the final

order of removal. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir.

2006). But when, as in this case, the BIA member specifically adopts the IJ’s

reasoning in his decision, see Admin. R., Vol. 1 at 18, we may also look to the

IJ’s decision, Uanreroro, 443 F.3d at 1204.

      Generally, when reviewing a decision from the BIA “we consider any legal

questions de novo, and we review the agency’s findings of fact under the

substantial evidence standard. Under that test, our duty is to guarantee that

                                          -3-
factual determinations are supported by reasonable, substantial and probative

evidence considering the record as a whole.” Diallo v. Gonzales, 447 F.3d 1274,

1279 (10th Cir. 2006) (alteration and quotation omitted). But, even after the

passage of the REAL ID Act of 2005, “challenges directed solely at the agency’s

discretionary and factual determinations remain outside the scope of judicial

review.” Id. at 1281. This includes challenges to the discretionary determination

of whether an alien showed the requisite “exceptional and extremely unusual

hardship” for cancellation of removal under § 1229b(b)(1)(D). See 8 U.S.C.

§ 1252(a)(2)(B)(i); Morales Ventura v. Ashcroft, 348 F.3d 1259, 1261-62

(10th Cir. 2003).

                                          A

      Nevertheless, Ms. Martinez-Rodriguez claims she is not appealing the

BIA’s decision that she failed to show the requisite “exceptional and extremely

unusual hardship.” Instead she claims that she is appealing the agency’s failure

to provide her due process in reaching that decision. See Diallo, 447 F.3d at 1280

(“The Fifth Amendment entitles aliens to due process of law in removal

proceedings.”). She claims the BIA failed to provide her due process because it

relied on the IJ’s decision which, in turn, relied on erroneous factual findings and

failed to properly follow BIA precedent in denying her application for

cancellation of removal.




                                         -4-
      We turn first to Ms. Martinez-Rodriguez’s claim that she was denied due

process because the BIA relied on material and erroneous factual findings.

Although it is true that following enactment of the REAL ID Act, we have

jurisdiction to review constitutional claims and questions of law raised in a

petition for review, 8 U.S.C. § 1252(a)(2)(D), Ms. Martinez-Rodriguez has done

nothing to tie her naked factual challenges to the Due Process Clause other than

use the words “due process.” She simply points to the factual findings she

disagrees with and then claims a due process violation occurred. As noted above,

challenges directed solely at an agency’s factual determinations are outside our

jurisdiction. Diallo, 447 F.3d at 1281. Simply “[r]ecasting challenges to factual

or discretionary determinations as due process or other constitutional claims is

clearly insufficient to give this Court jurisdiction under § 1252(a)(2)(D).”

Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 190 (3d Cir. 2007). We thus have

no jurisdiction over Ms. Martinez-Rodriguez’s first point.

                                          B

      In her second point, Ms. Martinez-Rodriguez argues that her due process

rights were violated because the IJ failed to properly apply BIA precedent in

denying her application.

      “At the core of due process are the requirements of notice and a meaningful

opportunity to be heard.” Jarbough, 483 F.3d at 190. It is clear that

Ms. Martinez-Rodriguez received both. She complains that the IJ and BIA failed

                                         -5-
to consider and discuss her argument comparing her factual situation with that in

the three BIA precedential decisions that address the “exceptional and extremely

unusual hardship” standard. This assertion misrepresents the record.

      Our review shows that the IJ did discuss and consider all three decisions,

recited the factual situation in each of those cases, and at places directly

compared those factual situations with that in the present case. Further, the BIA’s

decision also cited the same three cases and, after examining a number of

Ms. Martinez-Rodriguez’s arguments on appeal, held that “the hardship faced by

her family members [did not reach] the exceptional and extremely unusual level

as outlined in th[e] Board’s precedents.” Admin. R., Vol. 1 at 19.

      It therefore appears that Ms. Martinez-Rodriguez’s actual complaint is that

the BIA simply made the wrong decision regarding her application. We have held

that a determination that an alien has not shown the “exceptional and extremely

unusual hardship” necessary to qualify for cancellation of removal was an

unreviewable discretionary decision because “[t]here is no algorithm for

determining when a hardship is ‘exceptional and extremely unusual.’” Morales

Ventura, 348 F.3d at 1262. Further, Ms. Martinez-Rodriguez acknowledges in her

opening brief that “[t]here are no hard and fast rules or definitions as to when the

‘exceptional and extremely unusual hardship’ standard is satisfied,” and that

“[e]ach case must be individually reviewed and assessed.” Pet’r Opening Br. at

29.

                                          -6-
      Consequently, to the extent that Ms. Martinez-Rodriguez is arguing in her

second point that the BIA violated her due process rights, we disagree. To the

extent she is asking that we review the BIA’s discretionary decision that she had

not shown “exceptional and extremely unusual hardship,” we lack the jurisdiction

to do so.

                                         C

      In her third point, Ms. Martinez-Rodriguez argues that the BIA failed to

provide her due process and violated 8 C.F.R. §§ 1003.1(e)(5) and (6) by not

assigning her appeal to a three-member panel for review. Under § 1003.1(e), the

BIA may use one of three methods to decide appeals from IJ decisions. First, it

may affirm the IJ’s decision without opinion

      if the Board member [to whom the case is assigned] determines that
      the result reached in the decision under review was correct; that any
      errors in the decision under review were harmless or nonmaterial;
      and that

             (A) The issues on appeal are squarely controlled by existing
             Board or federal court precedent and do not involve the
             application of precedent to a novel factual situation; or

             (B) The factual and legal issues raised on appeal are not so
             substantial that the case warrants the issuance of a written
             opinion in the case.

8 C.F.R. § 1003.1(e)(4)(i).

      Second, if the BIA member who is assigned the case decides that an

affirmance without opinion is not appropriate,


                                         -7-
      the Board member shall issue a brief order affirming, modifying, or
      remanding the decision under review, unless the Board member
      designates the case for decision by a three-member panel under
      paragraph (e)(6) of this section under the standards of the case
      management plan. A single Board member may reverse the decision
      under review if such reversal is plainly consistent with and required
      by intervening Board or judicial precedent, by an intervening Act of
      Congress, or by an intervening final regulation.

Id. § 1003.1(e)(5).

      Finally, a case may be assigned to review by a three-member panel only if

the case presents one of a number of 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 under § 1003.1(e)(5).

Id. § 1003.1(e)(6). As discussed above, the BIA member in this case issued a

brief order under § 1003.1(e)(5) adopting the reasoning of and affirming the

IJ’s decision.




                                        -8-
      As to Ms. Martinez-Rodriguez’s argument that the failure to provide review

by a three-member panel denied her due process, we note that we held in Tsegay

v. Ashcroft, 386 F.3d 1347, 1353 (10th Cir. 2004), that an alien has no

constitutional right to appeal an IJ’s decision to the BIA, and that the IJ’s

decision alone, affirmed without opinion by the BIA under § 1003.1(e)(4),

provided the needed “reasoned agency decision on the merits of her petition for

asylum.” A fortiori, the BIA’s short decision in this case, adopting the more

detailed reasoning of the IJ’s decision, provided the reasoned agency decision on

the merits of her petition required by the Due Process Clause.

      We therefore turn to Ms. Martinez-Rodriguez’s argument that the BIA

member violated § 1003.1(e)(6) in not forwarding her case to a three-member

panel because (1) under § 1003.1(e)(6)(iii), the IJ’s decision did not conform to

BIA precedents; and (2) under § 1003.1(e)(6)(v), the IJ made clearly erroneous

factual determinations. Ms. Martinez-Rodriguez asks that we reverse the BIA

member’s procedural decision, and remand the case, directing that it be assigned

to a three-member panel. We agree with the government that we do not have

jurisdiction to review the BIA member’s procedural decision.

      In Tsegay, this court addressed the issue of whether we had jurisdiction to

review the decision of a BIA judge to affirm an IJ’s decision without opinion

under § 1003.1(e)(4), rather than issue a written opinion. We did not have

jurisdiction to review the IJ’s underlying decision rejecting Tsegay’s asylum

                                          -9-
application on the ground that the changed circumstances exception did not apply.

Tsegay, 386 F.3d at 1354. In determining that we also did not have jurisdiction to

review the BIA’s decision to affirm without opinion, we examined the

Immigration and Nationality Act (INA) and the Administrative Procedures Act

(APA), the “[t]wo statutes defin[ing] our jurisdiction to review immigration

decisions.” Id. at 1353.

      We first noted that we had no jurisdiction under the INA–which grants

jurisdiction to review “final order[s] of removal,” 8 U.S.C. § 1252(a)(1)–because

“the BIA’s procedural decision to affirm without opinion” was not a final order of

removal; it was simply the procedural agency action that made the IJ’s decision

the final order of removal, and the IJ’s decision was not reviewable. 386 F.3d

at 1353.

      In the present case, unlike the situation in Tsegay, the BIA judge issued a

short opinion under § 1003.1(e)(5) instead of affirming without opinion, and that

short opinion became the final order of removal. But the actual decision that

Ms. Martinez-Rodriguez is appealing from is the intermediate procedural decision

not to forward the case to a three-judge panel, not the BIA member’s final order,

which in no way addressed his decision not to forward the matter to a three-judge

panel. We note that under 8 U.S.C. § 1252(b)(9),

      [j]udicial review of all questions of law and fact, including
      interpretation and application of constitutional and statutory
      provisions, arising from any action taken or proceeding brought to

                                        -10-
      remove an alien from the United States under this subchapter shall be
      available only in judicial review of a final order under this section.

But here, as we held above, the final order of removal is not reviewable.

      In Tsegay, we next considered the APA’s jurisdictional grant, noting:

“[t]o be subject to review under the APA, the action at issue must be a ‘final

agency action.’” 386 F.3d at 1354 (quoting 5 U.S.C. § 704). We held that

      [t]he BIA’s decision to affirm Tsegay’s case without opinion was the
      final agency action here because it marked “the consummation of the
      agency decision-making process” and was an action “from which
      legal consequences flow,” in that the affirmance without opinion
      establishes the IJ’s asylum decision as the final order of removal.

Id. (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). We went on,

however, to find that there was still no jurisdiction because the BIA’s decision

was committed to agency discretion as a matter of law. Id. at 1355-58.

      Here, the procedural decision that Ms. Martinez-Rodriguez is appealing

was not the final agency action. The final agency action was the BIA member’s

short opinion affirming the IJ’s decision, not his preceding procedural decision.

Similar to the INA provision quoted above, APA provides that “[a] preliminary,

procedural, or intermediate agency action or ruling not directly reviewable is

subject to review on the review of the final agency action.” 5 U.S.C. § 704. But,

again, we have no jurisdiction over the final agency action. Thus, under Tsegay,

we have no jurisdiction to review that procedural decision not to assign the appeal

to a three-judge panel.


                                        -11-
      This does not mean, however, that we never have jurisdiction to review a

BIA member’s decision not to forward a case to a three-judge panel. As correctly

recognized by the parties, we held in Batalova v. Ashcroft that we did have

jurisdiction to review the BIA judge’s decision in that case. 355 F.3d 1246, 1253

(10th Cir. 2004). But in Batalova we had jurisdiction over the merits of the

appeal and the petitioner was asking us to also review the decision not to forward

to a three-judge panel. See Tsegay, 386 F.3d at 1358 (distinguishing Batalova on,

among others, the ground that the court in Batalova had jurisdiction over the

merits of the underlying appeal). Thus, in Batalova the court noted that “it

ma[de] little difference whether the BIA member properly or improperly

determined to [affirm with a short order], or whether the BIA acted through a

single member or a three-member panel, because we directly review the IJ’s

decision, which the BIA member adopted,” and then went on simply to hold:

“As our review of the merits of petitioners’ case will reveal, we find no error in

[the decision not to forward to a three-judge panel].” 355 F.3d at 1253 & n.8.

      Here, the only issue on appeal to the BIA–whether Ms. Martinez-Rodriguez

showed the requisite “exceptional and extremely unusual hardship” for

cancellation of removal under § 1229b(b)(1)(D)–is an issue we do not have

jurisdiction to review. And it would be impossible for us to determine whether

this case presented either “[t]he need to review a decision by an immigration

judge or the Service that is not in conformity with the law or with applicable

                                         -12-
precedents” or “[t]he need to review a clearly erroneous factual determination

by an immigration judge,” under § 1003.1(e)(6)(iii) and (v), as

Ms. Martinez-Rodriguez requests, without engaging in the same merits

determination we are without jurisdiction to conduct. See Ngure v. Ashcroft,

367 F.3d 975, 986 (8th Cir. 2004) (“[W]here a statute precludes judicial review of

the IJ’s determination, the court of appeals also lacks jurisdiction to review the

BIA’s decision to affirm without opinion, because such review would require the

court to examine the merits of the IJ’s unreviewable determination.”); Falcon

Carriche v. Ashcroft, 350 F.3d 845, 853 (9th Cir. 2003) (same). Thus, we have

no jurisdiction to review the BIA member’s procedural decision to decide the case

with a short order under § 1003.1(e)(5) instead of forwarding it to a three-judge

panel for review under § 1003.1(e)(6).

                                          II

      To the extent the second point of Ms. Martinez-Rodriguez’s petition for

review raises a proper due process challenge, it is DENIED. The remainder of

her petition is DISMISSED for lack of jurisdiction.


                                                      Entered for the Court


                                                      Stephen H. Anderson
                                                      Circuit Judge




                                         -13-
