                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 06 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



TOMASA JIMENEZ; MAURICIA                         No. 05-75848
VALERIO-JIMENEZ; MAYRA
VALERIO,                                         Agency Nos. A079-259-200
                                                             A078-669-998
              Petitioners,                                   A072-403-831

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,

              Respondent.



TOMASA JIMENEZ; MAURICIA                         No. 06-70495
VALERIO-JIMENEZ; MAYRA
VALERIO,                                         Agency Nos. A079-259-200
                                                             A078-669-998
              Petitioners,                                   A072-403-831

  v.

ERIC H. HOLDER, JR., Attorney General,

              Respondent.



                     On Petitions for Review of Orders of the
                         Board of Immigration Appeals

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                       Argued and Submitted April 16, 2010
                            San Francisco, California

      Before:       TASHIMA and THOMAS, Circuit Judges, and STAFFORD,
                    District Judge.**

      Tomasa Jimenez, and her adult daughters Mauricia Valerio-Jimenez and

Mayra Valerio, all natives and citizens of Mexico, petition for review of the Board

of Immigration Appeals’ (“BIA”) denial of their appeal from an Immigration

Judge’s (“IJ”) denial of their application for cancellation of removal, and denial of

their motion for reconsideration.

                                    Background

      The IJ found that petitioners had satisfied three of the four requirements for

eligibility for cancellation of removal: continuous physical presence in the United

States, good moral character, and no criminal convictions. 8 U.S.C. § 1229b(b)(1).

The IJ, however, denied petitioners’ application because he found that they had not

established that their removal would cause “exceptional and extremely unusual

hardship” to their qualifying relatives. 8 U.S.C. § 1229b(b)(1)(D). The BIA

affirmed the IJ’s decision without opinion.




       **
             The Honorable William S. Stafford, Senior United States District
Judge for the Northern District of Florida, sitting by designation.

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                                     Jurisdiction

      The Illegal Immigration Reform and Immigrant Responsibility Act removed

our jurisdiction to review “denials of discretionary relief,” including “any

judgment regarding the granting of relief under . . . [8 U.S.C. §] 1229b,” which

governs the cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i). But the REAL

ID Act of 2005 amended the law to restore our jurisdiction over “constitutional

claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D).

      We retain jurisdiction to review the agency’s discretionary denial of

cancellation of removal to the extent that petitioners’ challenge presents a

colorable constitutional or legal claim. See Mendez-Castro v. Mukasey, 552 F.3d

975, 978 (9th Cir. 2009). If the agency “applied the correct legal standard” in

evaluating petitioners’ case, “we may not proceed further to examine its

application of the facts of this case to” that standard. Id. at 980. If, however, the

agency “failed to follow BIA precedent and misconstrued the statute when

determining whether Petitioners had demonstrated ‘exceptional and extremely

unusual hardship’ under 8 U.S.C. § 1229b(b)(1)(D), . . . we have jurisdiction to

review” petitioners’ challenge to the agency’s decision. See Figueroa v. Mukasey,

543 F.3d 487, 496 (9th Cir. 2008).




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      We hold that petitioners’ contention that the BIA failed to apply its own

binding precedent, Matter of Recinas, 23 I. & N. Dec. 467 (BIA 2002), in

evaluating Tomasa Jimenez’s application for cancellation of removal fails to raise

a colorable constitutional or legal claim; therefore, we lack jurisdiction over it.

Petitioners’ claim is essentially one “that the IJ’s decision in this case is factually

inconsistent with” the hardship determination it made in Recinas. Mendez-Castro,

552 F.3d at 980. We may not conduct a review that “would require us [to] step

into the IJ’s shoes and reweigh the facts in light of the agency’s subjective

treatment of purportedly similar cases.” Id. The BIA cited and repeatedly referred

to Recinas, the correct legal standard. Our inquiry ends there.

      Nor do we have jurisdiction to review Jimenez’s claim that the BIA

committed legal or constitutional error by failing to consider the effect of her

removal on Luis, her qualifying relative son, because of his incarceration. The IJ

applied the correct legal standard to determine which of Jiminez’s relatives were

qualifying relatives under the statute and held that she had three qualifying

relatives, “Luis, Jose, and Edgar.” Therefore, Jiminez’s claim of legal error is not

colorable. Nor is her claim colorable when characterized as a due process

violation. The record indicates that the BIA did review the evidence of potential

hardship to Luis, but found that there was none.


                                            4
      We therefore lack jurisdiction to review the foregoing claims.

      On the other hand, petitioners have identified two colorable legal errors that

the BIA made when it applied the incorrect legal standards to its analysis of

whether Valerio-Jiminez and Valerio’s removal would cause their respective

qualifying sons exceptional and extremely unusual hardship. We therefore have

jurisdiction over these claims, which we discuss further below.

                                        Merits

      First, the BIA erred in holding that Valerio-Jiminez and Valerio failed to

establish sufficient hardship because they had not proven that their sons suffered

from “serious medical conditions.” The BIA’s precedent does not require a finding

of a serious medical condition in order to grant relief. See Recinas, 23 I. & N. Dec.

at 470. Rather, BIA precedent requires engagement in what the BIA has called “a

‘cumulative’ analysis,” which “requires the assessment of hardship factors in their

totality,” rather than reliance on specific formal categories such as the IJ did in this

case. See id. at 472. The BIA thus applied an erroneous and heightened legal

standard by putting the burden on petitioners to prove that their sons had serious

medical conditions in order to consider them eligible for relief.

      Second, the BIA erred in requiring Valerio-Jiminez and Valerio to show that

their sons’ medical conditions currently create a hardship in the United States.


                                            5
This hardship analysis considered only the severity of petitioners’ sons’ health

problems while currently being treated in the United States. This was legal error

because our precedent requires the BIA “to consider whether the citizen-children

would suffer an exceptional and extremely unusual hardship in the future should

their parents be removed.” Figueroa, 543 F.3d at 497 (quoting 8 U.S.C. §

1229b(B)(1)(D)) (emphasis in original). The BIA’s precedent requires that

“consideration should be given to the age, health, and circumstances of the

qualifying members, including how a lower standard of living or adverse country

conditions in the country of return might affect those relatives.” Recinas, 23 I. &

N. Dec. at 468. The law does not allow the BIA blithely to assume that because

Valerio-Jiminez’s son’s condition can be treated with hospitalization and

intravenous antibiotics in the United States, it will not “create an exceptional

hardship in the country of return,” where such treatment might not be available.

Figueroa, 543 F.3d at 497.

                                     Conclusion

      For the foregoing reasons, we dismiss the petition for review with respect to

Tomasa Jimenez’s claims for lack of jurisdiction. We grant the petition for review

with respect to Mauricia Valerio-Jimenez and Mayra Valerio’s claims, and remand

to the BIA so that it may apply the correct legal standards governing hardship


                                           6
analysis and properly consider the effect of said petitioners’ removal on their

respective children’s medical conditions.

      DISMISSED in part, GRANTED in part, and REMANDED.




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