IMG-271 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2812

___________

MARVIN REYES,

a/k/a Marvin Rolando Reyes Mencos,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A073-650-169)

Immigration Judge: Honorable Susan G. Roy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 4, 2010

Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

(Opinion filed August 5, 2010)

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 OPINION

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PER CURIAM

Marvin Reyes petitions for review of an order of the Board of Immigration

Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) decision denying his
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application for cancellation of removal. For the reasons that follow, we will grant the

government’s motion to dismiss and dismiss the petition for review.

I.

Reyes, a citizen of Guatemala, entered the United States on a non-immigrant visa

in August 1992, and stayed longer than permitted. In September 2007, the government

instituted removal proceedings. Reyes conceded removability but requested cancellation

of removal pursuant to INA § 240A(b)(1) [8 U.S.C. § 1229b(b)(1)] based on his

allegation that his removal would result in exceptional and extremely unusual hardship to

his U.S. citizen child. Reyes testified that his young son suffers from ear infections and

allergies. He testified that if he is removed, his son would accompany him, and he is

concerned that his son would not be able to receive adequate medical attention or

education in Guatemala. 

The IJ considered the family’s circumstances, including the son’s medical history,

but found that Reyes’s removal would not constitute exceptional and extremely unusual

hardship to his son. The IJ denied Reyes’s application for cancellation of removal and

granted his alternative application for voluntary departure to Guatemala. Reyes appealed

to the BIA, which affirmed the IJ’s denial, agreeing that Reyes failed to establish

exceptional and extremely unusual hardship. Reyes filed a timely petition for review. 

The government filed a motion to dismiss the petition for lack of jurisdiction. A motions

panel of this Court referred the government’s motion to this panel. See I.O.P. 10.3.5.
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II.

Although we have authority to review final orders of removal under 8 U.S.C. §

1252(a)(1), we lack jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to review factual or

discretionary determinations such as whether a petitioner has satisfied the hardship

requirement for cancellation of removal. Mendez-Moranchel v. Ashcroft, 338 F.3d 176,

178 (3d Cir. 2003). We do have jurisdiction, however, to review “constitutional claims or

questions of law” raised in a petition for review. 8 U.S.C. § 1252(a)(2)(D). We do so de

novo, subject to the deference principles set forth in Chevron USA, Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842-44 (1984). See Wu v. Att’y Gen., 571 F.3d 314,

317 (3d Cir. 2009) (per curiam). 

Here, Reyes asserts that the IJ’s and BIA’s decisions failed to consider factors

presented in his case, depriving his son “of his due process and constitutional rights to

receive medical and special services because of his hearing problems.” (Pet. Br. at 3.) 

“Petitioners alleging ‘constitutional claims’ under § 1252(a)(2)(D) must, as a threshold,

state a colorable violation of the United States Constitution.” Jarbough v. Att’y Gen., 483

F.3d 184, 189 (3d Cir. 2007). In this case, Reyes’s claim fails to overcome this threshold,

invoking the Due Process Clause in name only. In the immigration context, due process

entitles an alien to “a full and fair hearing and a reasonable opportunity to present

evidence.” Romanishyn v. Att’y Gen., 455 F.3d 175, 185 (3d Cir. 2006). Reyes fails to

tie to the Due Process Clause the alleged factual error and failure to consider evidence,
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and the record does not indicate that any such errors deprived the petitioner of “notice and

a meaningful opportunity to be heard.” Jarbough, 483 F.3d at 190. Further, such claims

do not constitute questions of law. Id. at 189 (“[C]ourts have recognized arguments such

as that an Immigration Judge or the BIA incorrectly weighed evidence, failed to consider

evidence or improperly weighed equitable factors are not questions of law . . .”).

Accordingly, we may not entertain Reyes’s attempt to present his argument in terms of

the Due Process Clause. See § 1252(a)(2)(B)(i) 

Reyes also claims that the BIA did not follow its own precedent by failing to

consider the hardship factors cumulatively in evaluating his application for cancellation

of removal. Whether an agency applies the correct legal standard is a question of law. 

Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir. 2007); Liu v. I.N.S., 508 F.3d 716,

721 (2d Cir. 2007) (per curiam). Here, however, Reyes’ assertion appears only to

challenge the BIA’s exercise of its discretion in determining that he did not meet the

hardship requirement for cancellation of removal. As explained above, we lack

jurisdiction to review that determination. See Mendez-Moranchel, 338 F.3d at 178;

Jarbough, 483 F.3d at 190.

For the above reasons, we will grant the government’s motion and dismiss the

petition for review.