                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2106


VICTOR A. FERMAN, a/k/a Victor Alberto Ferman Molina,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   February 11, 2014              Decided: February 20, 2014


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Petition dismissed in part, denied in part by unpublished per
curiam opinion.


Victor A. Ferman, Petitioner Pro Se. Michael Christopher Heyse,
Office of Immigration Litigation, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Victor A. Ferman, a native and citizen of El Salvador,

petitions for review of an order of the Board of Immigration

Appeals    (“Board”)      dismissing        his       appeal    from    the    immigration

judge’s    order    and    denying      his         motion     to   remand.         Ferman’s

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

(2012) was denied because he failed to show that his removal

would result in “exceptional and extremely unusual hardship” to

his qualifying relatives.              We dismiss in part and deny in part

the petition for review.

            Under    8    U.S.C.   §     1252(a)(2)(B)(i)              (2012),      entitled

“Denials     of    discretionary         relief,”            “no    court     shall    have

jurisdiction to review any judgment regarding the granting of

relief    under     section   .    .    .       1229b,”        which   is     the   section

governing cancellation of removal.                     See Obioha v. Gonzales, 431

F.3d 400, 405 (4th Cir. 2005) (“It is quite clear that the

gatekeeper        provision    [of          §        1252(a)(2)(B)(i)]          bars     our

jurisdiction to review a decision of the BIA to actually deny a

petition for cancellation of removal or the other enumerated

forms of discretionary relief.”).                     However, this court does have

jurisdiction over constitutional claims and questions of law.                              8

U.S.C. § 1252(a)(2)(B)(i), (D).                     Jean v. Gonzales, 435 F.3d 475,

480 (4th Cir. 2006).          “[A]n ‘exceptional and extremely unusual

hardship’ determination is a subjective, discretionary judgment

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that has been carved out of appellate jurisdiction.”                             Romero-

Torres v. Ashcroft, 327 F.3d 887, 888 (9th Cir. 2003).                           Indeed,

we have concluded that the issue of hardship is committed to

agency discretion and thus is not subject to appellate review.

Okpa v. INS, 266 F.3d 313, 317 (4th Cir. 2001).

               Because Ferman does not raise a constitutional claim

or a question of law regarding the dismissal of his appeal from

the immigration judge’s order denying cancellation of removal,

we    lack     jurisdiction     and      dismiss      in    part    the    petition     for

review.

               A motion to remand in order to consider new evidence

that is filed while an appeal to the Board is pending is held to

the same legal standard as a motion to reopen.                            See Onyeme v.

INS, 146 F.3d 227, 234 (4th Cir. 1998).                            Such a motion must

state    the    new   facts    to   be    proven      at    a   hearing    and   must    be

supported by affidavits or other evidentiary material.                             See 8

C.F.R. § 1003.2(c)(1) (2013).               Further, such motion shall not be

granted unless the evidence sought to be offered is material and

was     not    available      and   could       not    have      been     discovered    or

presented at the former hearing.                      Id.       The movant must also

demonstrate that the new evidence would likely change the result

in the case.          See Matter of Coelho, 20 I. & N. Dec. 464, 473

(B.I.A. 1992).         The Board’s denial of a motion to remand and



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reopen is reviewed for abuse of discretion.                                    See Hussain v.

Gonzales, 477 F.3d 153, 155 (4th Cir. 2007).

               We also recognize three independent grounds on which a

motion to reopen removal proceedings may be denied:                                       “(1) the

alien has not established a prima facie case for the underlying

substantive         relief       sought;    (2)      the    alien       has    not    introduced

previously unavailable, material evidence; and (3) where relief

is   discretionary,           the    alien      would       not        be    entitled      to   the

discretionary grant of relief.”                     Onyeme, 146 F.3d at 234 (citing

INS v. Abudu, 485 U.S. 94, 104-05 (1988)).                              We will reverse the

denial    of        a   motion      to     reopen     only        if    it     is    “arbitrary,

irrational, or contrary to law.”                       Mosere v. Mukasey, 552 F.3d

397, 400 (4th Cir. 2009) (internal quotation marks omitted).

               We       conclude     that      the     Board           did    not     abuse     its

discretion.             Ferman     did   not   show        that    the       new    evidence    was

previously      unavailable.             Nor    did    he     show          that    the   evidence

established a prima facie case for cancellation of removal.

               Accordingly, we dismiss in part and deny in part the

petition for review.               We dispense with oral argument because the

facts    and    legal      contentions         are    adequately             presented     in   the

materials      before        the    court      and    argument          would       not   aid   the

decisional process.


                                                           PETITION DISMISSED IN PART;
                                                                        DENIED IN PART

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