                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   May 15, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 JAVIER LOPEZ-NAVARRO,

               Petitioner,                               No. 08-9554
          v.                                   (Board of Immigration Appeals)
 ERIC H. HOLDER, JR.,

               Respondent. *


                             ORDER AND JUDGMENT **


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges. ***


      Petitioner Javier Lopez-Navarro seeks review of a decision by the Board of

Immigration Appeals denying his application for cancellation of removal. We

lack jurisdiction over Lopez’s claims and therefore DISMISS the petition.



      *
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Respondent
requests that Eric H. Holder, Jr. be substituted for Michael Mukasey as the
respondent in this case.
      **
         This order and judgment is not binding precedent except under the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.
      ***
          After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      The parties are familiar with the facts and we summarize only those

relevant to our decision.

      Lopez is a citizen of Mexico and entered this country without inspection in

1990. In February 1992, he was arrested for possessing unauthorized blank INS

work permits in violation of 18 U.S.C. § 1546(a). He pleaded guilty and was

sentenced to time served with two years of supervised release. As part of his

supervised release, Lopez was, among other things, required to report to the

United States Probation Office within 48 hours and report to a California

municipal court to resolve an outstanding bench warrant for a DUI charge.

Though Lopez initially contacted the Probation Office, he never appeared before

the municipal court. He also failed to maintain contact with the Probation Office,

and subsequent efforts to find him were fruitless. Because of these supervised

release violations, the United States District Court for the Central District of

California issued a bench warrant for Lopez’s arrest in June 1992. Eleven years

later, in 2003, Lopez was arrested on the bench warrant and sentenced to four

months’ imprisonment.

      After Lopez completed the four-month sentence on his probation violation,

the Department of Homeland Security served him with a Notice to Appear in

removal proceedings, alleging he was removable under 8 U.S.C.

§ 1182(a)(6)(A)(i). In response, Lopez conceded his removability and applied for

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cancellation of removal or, alternatively, voluntary departure. Lopez based his

application for cancellation of removal in part upon the fact that his son, a United

States citizen, was diagnosed with a respiratory illness at a young age.

      At his removal hearing, Lopez testified his family had relocated from

California to Utah to mitigate his son’s respiratory symptoms. Lopez also stated

that if he were removed, he and his family would return to his hometown of

Mexico City, and he feared his son’s respiratory condition would be aggravated

because of the City’s air and water pollution problems. On cross-examination,

however, Lopez admitted he would consider finding work outside Mexico City,

where pollution levels are less serious. The Immigration Judge (IJ) heard this

testimony and denied Lopez his requested relief.

      On appeal, the Board of Immigration Appeals (BIA) issued a brief, non-

summary order affirming the decision of the IJ. See 8 C.F.R. § 1003.1(e)(5). 1

Lopez appeals that order, abandoning his request for voluntary departure and

seeking only to reverse the BIA’s decision regarding his application for

cancellation of removal.

                                    II. Analysis



      1
        In immigration cases, the scope of our review is usually limited to the
decision of the BIA. Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir.
2007). However, where the BIA issues a brief order affirming the decision of the
IJ—as occurred here—we may look to the IJ’s opinion for a more complete
explanation of the BIA’s order. Id.

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      In general, we have jurisdiction under 8 U.S.C. § 1252(a) to review final

BIA removal orders. Our jurisdiction has been substantially limited by Congress,

however. We have no “jurisdiction to review . . . any judgment regarding the

granting of relief under section . . . 1229b,” which governs cancellation of

removal. § 1252(a)(2)(B)(i); see Sabido Valdivia v. Gonzales, 423 F.3d 1144,

1147 (10th Cir. 2005). Furthermore, § 1229c(f) directs that “[n]o court shall have

jurisdiction over an appeal from denial of a request for an order of voluntary

departure.” See Ekasinta v. Gonzales, 415 F.3d 1188, 1190 (10th Cir. 2005)

(“[W]e lack jurisdiction to review an immigration judge’s refusal to grant

voluntary departure.”).

      Despite these limitations, however, we may reach any “constitutional

claims or questions of law” raised by Lopez in his petition, even if they relate to

the BIA’s denial of his applications for cancellation of removal and voluntary

departure. § 1252(a)(2)(D); see Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th

Cir. 2007).

      In an attempt to place his appeal within § 1252(a)(2)(D) and thereby vest us

with jurisdiction, Lopez makes two arguments. First, he claims the BIA erred as

a matter of law when it considered his 1992 conviction as relevant to his “good

moral character” under § 1229b(b)(1)(B), because the conviction occurred more

than ten years prior to his application for cancellation of removal. Second, he

claims the BIA erred in concluding that his son’s medical condition would not

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cause “exceptional and extremely unusual hardship,” § 1229b(b)(1)(D), if he were

removed. Neither argument has merit.

      First, with respect to Lopez’s 1992 conviction, the BIA stated, “[w]e find

no basis to disturb the Immigration Judge’s conclusion that the respondent has not

demonstrated good moral character, in light of his failure to comply with the

terms of his probation.” A.R. at 2 (emphasis added). Lopez contends that his

“last known act of ‘bad moral character’ occurred on May 8, 1992, when his . . .

deadline to report to the U.S. Probation Office expired without his reporting as

ordered.” Pet’r Br. at 12. This, he states, proves that he had “good moral

character” for the ten-year period of § 1229b(b)(1)(B). The BIA and IJ disagreed.

They determined that Lopez’s ongoing parole violation, which began in 1992 and

was not resolved until he served his four-month sentence in 2003, justified a

finding of lack of good moral character. Contrary to Lopez’s assertions, we have

no jurisdiction to review this finding. It is nothing more than a “challenge to the

agency’s discretionary and fact-finding exercises.” Kechkar, 500 F.3d at 1084

(citing Bugayong v. INS, 442 F.3d 67, 72 (2d Cir. 2006) (per curiam)). 2

      2
         Lopez also argues that “[t]he IJ erred in imputing some base motive to
Lopez regarding his testimony that he completed probation when in fact the
probation was terminated.” Pet’r Br. at 13. The credibility determinations of an
IJ are fact questions also outside the scope of our jurisdiction. See Kechkar, 500
F.3d at 1084; see also Cyrus v. Keisler, 505 F.3d 197, 202 (2d Cir. 2007)
(“Challenges to discretionary decisions, like the one raised here, essentially
dispute the correctness of an IJ’s fact-finding or the wisdom of his exercise of
discretion. As we have stated repeatedly, such discretionary decisions are beyond
                                                                       (continued...)

                                         -5-
      Second, Lopez challenges the BIA’s “exceptional and extremely unusual

hardship” determination. In doing so, Lopez conducts a searching analysis of the

evidence presented to the IJ, concluding “the evidence overwhelmingly shows

that [Lopez’s son] suffers from severe, recurring upper respiratory tract

problems.” Pet’r Br. at 18. But Lopez’s factual arguments do not provide us with

jurisdiction. See Kechkar, 500 F.3d at 1084 (holding that an alien does not

“avoid[] the jurisdictional bar by arguing that the evidence was incorrectly

weighed, insufficiently considered, or supports a different outcome”).

      Lopez also argues the BIA departed from its own precedent in making its

hardship determination. We have previously held that “the hardship issue is a

matter of discretion. There is no algorithm for determining when a hardship is

‘exceptional and extremely unusual.’ The decision regarding when hardship has

reached that level is a judgment call. In other words, the decision requires the

exercise of discretion.” Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th

Cir. 2003); see also Sabido Valdivia, 423 F.3d at 1147.

      Here, the BIA exercised its discretion when it examined the record

evidence and affirmed the IJ. We therefore lack jurisdiction to review the BIA’s

hardship determination.




      2
       (...continued)
our review.”) (internal quotation marks, alterations, and citations omitted).

                                         -6-
                         III. Conclusion

For the foregoing reasons, we DISMISS Lopez’s petition.

                                      Entered for the Court

                                      Timothy M. Tymkovich
                                      Circuit Judge




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