                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                    August 8, 2011
                              FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    JULIO PIZANO-ZEFERINO,

                Petitioner,

    v.                                                     No. 10-9537
                                                       (Petition for Review)
    ERIC H. HOLDER, JR., United States
    Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before HOLMES and ANDERSON, Circuit Judges, BRORBY, Senior Circuit
Judge.



         Julio Pizano-Zeferino petitions this court for review of an order of the

Board of Immigration Appeals (BIA) denying his motion to reopen and reconsider

its denial of his application for cancellation of removal. We dismiss the petition

for lack of jurisdiction.



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                               I. BACKGROUND

      Mr. Pizano-Zeferino is a native and citizen of Mexico who entered the

United States illegally without being admitted or paroled. He has conceded his

removability from this country. Although the Attorney General charges that he

arrived in the United States on February 15, 2000, he claims he has been here

since April 14, 1995.

      Mr. Pizano-Zeferino has two United-States-citizen children: Yvette, born

in 1997 and Julio, born in 2001. Yvette suffers from asthma, for which she takes

medications, and from an allergy to metallic objects.

      Mr. Pizano-Zeferino is self-employed in construction doing stucco work.

He lives with his girlfriend, Magdalena Rodriguez-Moreo, who is the mother of

his children and who is also apparently in this country illegally. According to

Mr. Pizano-Zeferino, at the time of these proceedings his girlfriend was waiting

for adjustment of status based on her father’s pending naturalization application.

He planned to marry her thereafter and thereby adjust his own status.

      After he was issued the notice to appear in this case, Mr. Pizano-Zeferino

applied for cancellation of removal, citing exceptional and extremely unusual

hardship to his American-citizen children if he were removed to Mexico. The

immigration judge (IJ) held a hearing at which Mr. Pizano-Zeferino testified

concerning his application. At the conclusion of the hearing, the IJ denied

cancellation of removal. He found that Mr. Pizano-Zeferino did not establish that

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he had ten years of continuous physical presence in the United States and that he

had failed to show exceptional and extremely unusual hardship to his two

American-citizen children.

         Mr. Pizano-Zeferino appealed to the BIA. The BIA affirmed the IJ’s

decision that he had failed to demonstrate exceptional and extremely unusual

hardship to his United-States-citizen children if he were removed to Mexico. In

light of this determination, it did not consider the continuous physical presence

issue.

         Mr. Pizano-Zeferino did not seek review of the BIA’s order in this court.

Instead, he obtained new counsel and filed a “Motion to Reconsider” with the

BIA, alleging changed circumstances since the IJ hearing. He argued that his

daughter’s medical diagnosis had changed for the worse and that environmental

conditions in Mexico, coupled with the limited medical care available there, could

be life-threatening for her. Given the new evidence he submitted with the motion,

Mr. Pizano-Zeferino contended that he had demonstrated the requisite severity of

hardship to obtain cancellation of removal.

         Because Mr. Pizano-Zeferino alleged “changed circumstances,” the BIA

treated his motion to reconsider as both a motion for reconsideration and a motion

to reopen its prior decision. It denied reconsideration because the motion did not

identify any material legal or factual defect in its previous decision. It denied




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reopening because the new evidence either was not previously unavailable or did

not establish prima facie eligibility for cancellation of removal.

                                  II. ANALYSIS

      1. Scope and Standard of Review

      Mr. Pizano-Zeferino did not petition for review of the BIA’s underlying

order of removal. Accordingly, all that is before us is his petition for review of

the BIA’s order denying his motion to reconsider/reopen its previous decision.

See Stone v. INS, 514 U.S. 386, 405-06 (1995) (contemplating separate, timely

filings of petition for review from underlying order of removal and of petition for

review of denial of motion for reconsideration). 1 We review this order for an

abuse of discretion. Wei v. Mukasey, 545 F.3d 1248, 1254 (10th Cir. 2008)




1
       The Attorney General has notified us that Mr. Pizano-Zeferino has now
been removed from the United States. The agency regulations provide that “[a]ny
departure from the United States, including the deportation or removal of a person
who is the subject of . . . removal proceedings, occurring after the filing of a
motion to reopen or a motion to reconsider, shall constitute a withdrawal of such
motion.” 8 C.F.R. § 1003.2(d). We requested supplemental briefing on whether,
if the motion for reopening and/or reconsideration was withdrawn from the BIA’s
consideration by operation of law under § 1003.2(d) upon Mr. Pizano-Zeferino’s
removal, such withdrawal would make it impossible for us to grant him the relief
he seeks--a remand for further consideration of the motion by the BIA--thus
effectively mooting his petition for review. The Attorney General responded with
his view that, because the BIA ruled on the motion prior to Mr. Pizano-Zeferino’s
removal, the withdrawal provision of § 1003.2(d) does not apply here. Thus, the
petition for review would not be moot. We defer to the Attorney General’s
interpretation of § 1003.2(d). See Wei v. Mukasey, 545 F.3d 1248, 1256
(10th Cir. 2008).

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(motion to reopen); Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003)

(motion for reconsideration).

      2. Cancellation of Removal

      A nonpermanent resident alien may receive cancellation of removal if he:

      (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 [except in a case described in
      section 1227(a)(7) of this title where the Attorney General exercises
      discretion to grant a waiver]; 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.

8 U.S.C. § 1229b(b)(1).

      As noted, the BIA determined that Mr. Pizano-Zeferino failed to establish

the “exceptional and extremely unusual hardship” required under the statute, even

with the new evidence he submitted. He raises a number of issues concerning this

determination. As best we can make out his contentions, he is arguing that: the

IJ and the BIA improperly disregarded the extreme hardship inherent in the

ten-year bar to reentry upon removal and its effect on family unity, see 8 U.S.C.

§ 1182(a)(9)(B)(i)(II); the IJ failed to advise him concerning the reentry bar;

imposition of the ten-year reentry bar will violate both his right to due process

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and his right to equal protection; and the denial of his motion to reopen denied

him due process.

      As the Attorney General correctly notes, under 8 U.S.C. § 1252(a)(2)(B)(i),

this court lacks jurisdiction to review the BIA’s discretionary finding that an alien

“has failed to demonstrate that removal would cause exceptional and extremely

unusual hardship.” Sabido Valdivia v. Gonzales, 423 F.3d 1144, 1148 (10th Cir.

2005) (quotation omitted). Moreover, “[b]ecause § 1252(a)(2)(B)[i] precludes our

review of an ‘exceptional and extremely unusual hardship’ determination under

§ 1229b(b)(1)(D) [barring judicial review of discretionary decisions], it also

precludes our jurisdiction to review the BIA’s denial of a motion to reopen

[where the BIA has concluded that] the alien still has failed to show the requisite

hardship.” Alzainati v. Holder, 568 F.3d 844, 849 (10th Cir. 2009). Thus, we

may not review the BIA’s discretionary hardship decision, whether predicated on

its original analysis (which it did not modify on Mr. Pizano-Zeferino’s request for

reconsideration) or on the new evidence he submitted with the request to reopen.

      Mr. Pizano-Zeferino attempts to circumvent the bar on our review of the

BIA’s discretionary decisions, however, by casting his arguments in the form of

constitutional contentions based on equal protection and due process. But in

order to obtain review of the agency’s denial of his application for cancellation of

removal (and corresponding denial of his motion to reconsider and reopen), he




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must first at least present a “substantial constitutional issue” for our review. See

Alvarez-Delmuro v. Ashcroft, 360 F.3d 1254, 1256 (10th Cir. 2004).

      We agree with the Attorney General that Mr. Pizano-Zeferino has failed to

present a substantial constitutional issue for our review. He did not raise his

argument about lack of notice of the re-entry bar before the BIA in his motion to

reconsider and reopen. We therefore lack jurisdiction to review it. Rivera-Zurita

v. INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991); see also Torres de la Cruz v.

Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007). He fails to show that his

arguments about “family unity” involve constitutional concerns separate and apart

from the non-reviewable weighing of factors committed to agency discretion.

Finally, his unfocused arguments about due process and equal protection fail to

demonstrate that he did not receive a fair administrative proceeding for purposes

of his due process claim or that he was treated differently from similarly-situated

persons for purposes of equal protection. We discern no substantial constitutional

issue presented in these arguments.

                                III. CONCLUSION

      The petition for review is therefore DISMISSED for lack of jurisdiction.


                                                     Entered for the Court



                                                     Jerome A. Holmes
                                                     Circuit Judge

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