Petitioners Reyes Alvarez-Delmuro and Soledad Alvarez-Colazo, husband and wife, are natives and citizens of Mexico who face removal from this country. They seek review of the decision of the Immigration Judge (IJ) that they are not eligible for cancellation of removal. The Board of Immigration Appeals (BIA) affirmed, without opinion, the decision of the IJ, making the IJ's decision the final agency determination. See 8 C.F.R. § 1003.1(e)(4). Respondent asserts that 8 U.S.C. § 1252(a)(2)(B) deprives this Court of jurisdiction to review the IJ's determination. In keeping with our recent decision in Morales Ventura v. Ashcroft, 348 F.3d 1259 (10th Cir.2003), we agree.
The Alvarezes concede that they entered the United States together without inspection on January 8, 1986, making them subject to removal. In removal proceedings, the Alvarezes applied for relief under 8 U.S.C. § 1229b(b)(1), which permits the Attorney General to cancel removal of an inadmissable or deportable alien who
8 U.S.C. § 1229b(b)(1). The IJ determined that the Alvarezes satisfied subparagraphs (A), (B), and (C), but that they did not satisfy subparagraph (D).
The Alvarezes claimed that they met the requirements of subparagraph (D) because their removal would result in "exceptional and extremely unusual hardship" to their four children who are United States citizens by virtue of their birth in this country. The children range in age from four to thirteen. The Alvarezes assert that if they take the children back to Mexico with them, the children would be forced to endure an educational system and a standard of living considerably worse than in the United States. In addition, the Alvarezes do not believe that they could adequately support their children in Mexico. Alternatively, if the Alvarezes were to leave their children in the United States with relatives, the children would suffer from being separated from their parents.
The IJ found that if the Alvarezes returned to Mexico,
Rec. at 80. However, the IJ also found that the Alvarezes' case did not satisfy the exceptional and extremely unusual hardship standard because "when Congress passed the legislation concerning cancellation of removal, in the committee reports they noted that they did not want cancellation of removal to be granted simply because families would suffer a worse type of
Id. at 80-81. The Alvarezes appealed to the BIA, which affirmed, without opinion, the IJ's determination.
On appeal, the Alvarezes argue that the BIA violated the U.S. Constitution because the BIA's "interpretation of the `exceptional and extremely unusual hardship' standard ... applies a discriminatory alienage classification in violation of the Due Process Clause of the Fifth Amendment." Pet. Br. at 10. Specifically, they assert that the BIA improperly uses undocumented aliens as the "baseline/normative comparison class" in evaluating the hardship to an alien's U.S. citizen relatives, rather than the proper baseline comparison class of similarly situated U.S. citizens. Pet. Reply Br. at 7. The Alvarezes also argue that the IJ violated the Fifth Amendment rights of the Alvarez children "when he classified them on the basis of their parent's [sic] alienage and national origin, and equated them with Mexican children in general, and aliens from Mexico in particular." Id. at 25. The Alvarezes point to the remark of the IJ that the hardship to the Alvarez children is "a type of hardship that is felt by every family returning to Mexico." Rec. at 81. They contend that this demonstrates that the IJ unconstitutionally evaluated the rights of the Alvarez children on the basis of the Mexican citizenship and national origin of their parents rather than their own U.S. citizenship and national origin. Pet. Br. at 25.
As Respondent points out, the threshold issue is whether we have jurisdiction to review the BIA's denial of the Alvarezes' application for cancellation of removal. See Morales Ventura, 348 F.3d at 1261. While the Alvarezes' case was pending on appeal, we answered that question in the negative in Morales Ventura, a case presenting facts and a constitutional claim nearly identical to the Alvarezes' case. See id. at 1261. In Morales Ventura, we held that because such a claim did not present a "substantial constitutional issue," 8 U.S.C. § 1252(a)(2)(B)(i) divests this court of jurisdiction. Id. at 1262 (citing Gonzalez-Oropeza v. U.S. Attorney General, 321 F.3d 1331, 1333 (11th Cir.2003) (per curiam)). Section 1252(a)(2)(B) states
8 U.S.C. § 1252(a)(2)(B) (emphasis added). We observed that although the constitutional claim was "predicated on the status of [the petitioners'] children as United States citizens.... `[t]his Court has repeatedly held that the incidental impact visited upon the [citizen] children of deportable, illegal aliens does not raise constitutional
Accordingly, we dismiss the petition for lack of jurisdiction.
LUCERO, J., Circuit Judge, concurring.
Because 8 U.S.C. § 1252(a)(2)(B)(i) divests us of jurisdiction to review discretionary denials of relief, specifically including whether the balance of hardships to United States citizen relatives of deportable aliens weighs in favor of cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D), I concur in the judgment in this case. I write separately, however, to express my view that forcing young American children either to leave the country of their birth and its educational and economic opportunities, or to grow up without the essential guidance and love of their parents might appear to those uninitiated in the current state of immigration law as the type of "exceptional and extremely unusual hardship" intended by Congress.
Yet, in carving out an entire category of cases that do not allow the benefit of judicial review, such as this, we are left with no choice but to deny relief on the facts of this case. If a remedy is to obtain for these types of cases, it must come from Congress, as we have no statutory authority to entertain such pleas.