United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3829

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Victor Castillo-Castillo, *

*

Petitioner, *

* Petition for Review of an Order of

v. * the Board of Immigration

* Appeals.

Eric H. Holder, Jr., Attorney General *

of the United States, * [UNPUBLISHED]

*

Respondent. *

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Submitted: November 15, 2011

 Filed: April 3, 2012

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Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.

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PER CURIAM.

The Department of Homeland Security (“DHS”) argued that Victor CastilloCastillo, a citizen of Mexico, was removable as “[a]n alien present in the United

States without being admitted or paroled,” 8 U.S.C. § 1182(a)(6)(A)(i). An

immigration judge (“IJ”) concluded that Castillo-Castillo was removable; however,

the IJ granted Castillo-Castillo’s request for cancellation of removal under 8 U.S.C.

§ 1229b(b)(1), finding that Castillo-Castillo’s removal would result in “exceptional

and extremely unusual hardship” to his five minor children, who are citizens of the

United States, due to separation fromCastillo-Castillo, “the significant caregiver and
provider for them.” The DHS appealed, and the Board of Immigration Appeals

(“BIA”) vacated the IJ’s grant of cancellation of removal, finding that CastilloCastillo “failed to demonstrate that his removal would result in exceptional and

extremely unusual hardship” to his children. TheBIA remanded for Castillo-Castillo

to apply for voluntary departure. Castillo-Castillo now petitions for review. We

dismiss the petition for lack of jurisdiction.

The Government argues that we lack jurisdiction to hear Castillo-Castillo’s

petition for two independent reasons: (1) there is no final order because the BIA

remanded the matter to the IJ for Castillo-Castillo to apply for voluntary departure,

and (2) the determination as to “exceptional and extremely unusual hardship” to

Castillo-Castillo’s children under 8 U.S.C. § 1229b(b)(1)(D) is discretionary and not

subject to judicial review. Assuming without deciding that there is a final order, we

conclude that we lack jurisdiction based on the second ground asserted by the

Government.

“[A]lthough we lack ‘jurisdiction to review the discretionary denial of

cancellation of removal under § 1229b, . . . we have jurisdiction to review

constitutional claims or questions of law raised in a petition for judicial review.’” 

Gomez-Perez v. Holder, 569 F.3d 370, 372 (8th Cir. 2009) (second alteration in

original) (quoting Pinos-Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir. 2008)). 

Additionally, we “possess jurisdiction to ‘review the nondiscretionarydeterminations

underlying a denial of an application for cancellation of removal, such as the

predicate legal question whether the IJ properly applied the law to the facts in

determining an individual’s eligibility.’” Id. (quoting Pinos-Gonzalez, 519 F.3d at

439) (internal quotation marks omitted). 

Castillo-Castillo argues that “this case is about a legal standard, not about

discretion.” However, Castillo-Castillo “may not create jurisdiction by cloaking an

abuse of discretion argument in constitutional [or legal] garb.” Garcia-Torres v.

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Holder, 660 F.3d 333, 338 (8th Cir. 2011) (alteration in original) (quoting GarciaAguillon v. Mukasey, 524 F.3d 848, 849 (8th Cir. 2008)) (internal quotation marks

omitted). Castillo-Castillo sets forth information regarding his relationship with his

children, the support he provides for them, and how his removal will result in his

inability to see some of his children for an extended duration, or even “permanently.” 

Castillo-Castillo asserts that there is a “bell curve” upon which there is a “tipping

point . . . where the facts of the case place it into the category of exceptional and

extremely unusual hardship.” This challenge to the BIA’s “determination that the

evidence failed to show an ‘extraordinary and extremely unusual hardship’” targets

“precisely the discretionary determination that Congress shielded from our review.” 

See Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir. 2006) (per curiam); see

also Garcia-Torres, 660 F.3d at 338 (“[T]his Court lacks jurisdiction to review the

BIA’s hardship determination because, while Petitioner attempts to present his issues

as questions of law, the hardship determination actually constitutes a discretionary

decision barred from appellate review.”). 

Castillo-Castillo also assertsthat the BIA failed to consider relevant precedent

and that the BIA’s decision therefore fails to demonstrate that “it has heard and

thought and not merely reacted.” Barragan-Verduzco v. INS, 777 F.2d 424, 426 (8th

Cir. 1985) (quoting Osuchukwu v. INS, 744 F.2d 1136, 1143 (5th Cir. 1984)). 

Counsel for Castillo-Castillo acknowledged during oral argument that he recently

made a similar argument in another case before this court. See Solis v. Holder, 647

F.3d 831, 833 (8th Cir. 2011), cert. denied, 565 U.S. ---, 132 S. Ct. 1032 (2012). In

Solis, we concluded that the contention “that the BIA applied the incorrect legal

standard by failing to adequately consider certain factors that the BIA has considered

relevant in other decisions” was really a challenge to the BIA’s discretionary

determination that was not subject to review. Solis, 647 F.3d at 833. We reach the

same conclusion here.

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For these reasons,we lack jurisdiction and therefore dismiss Castillo-Castillo’s

petition for review.

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