2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-12-2011

Alex Ruiz-De La Cruz v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4722

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-4722

___________

ALEX DANIEL RUIZ-DE LA CRUZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A088-742-107)

Immigration Judge: Honorable Henry Dogin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 6, 2011

Before: SCIRICA, FISHER and ALDISERT, Circuit Judges

(Filed: April 12, 2011)

___________

OPINION OF THE COURT

___________

PER CURIAM.

Alex Ruiz-De La Cruz (“Ruiz”) petitions for review of a final order entered by the 

Board of Immigration Appelas (“BIA”), which dismissed his appeal of an immigration 

judge’s (“IJ”) denial of his application for cancellation of removal. For the following 

reasons, we will grant the Government’s motion to dismiss the petition for lack of 
2

jurisdiction.

Ruiz is a native and citizen of Guatemala. He entered the United States in 1995 as 

a lawful nonimmigrant visitor. He overstayed his visa and, in February 2008, the 

Government instituted removal proceedings against him. He conceded removability, but 

requested cancellation of removal under 8 U.S.C. § 1229b(b)(1), alleging that his removal 

would result in an exceptional and extremely unusual hardship to his three-year old son. 

At an October 2008 hearing, Ruiz testified that he lives with his wife, who is a citizen of 

Panama in the United States illegally, and his son, who is a United States citizen. At the 

time of the hearing, his wife was pregnant with the couple’s second child. Ruiz testified 

that both he and his wife worked, but that he provided most of the financial support for 

the household. He also provides financial support to his two children—one also a United 

States citizen—living in Guatemala with their mother. He further stated that removal to 

Guatemala would result in his separation from his wife, son, and unborn child. Finally, 

he testified that he would make less money in Guatemala and thus would be unable to 

continue to financially support his children.

The IJ considered the family’s circumstances but found that Ruiz’s removal, while 

creating an economic hardship, would not constitute exceptional and extremely unusual 

hardship to the three-year old son.

1

The IJ denied Ruiz’s application for cancellation of 

removal and granted his alternative request for voluntary departure. The BIA agreed with 

 

1 The IJ also found that Ruiz’s removal would not constitute a hardship to his older 

daughter, the United States citizen who is living in Guatemala with her mother. Ruiz 
3

the IJ, finding that Ruiz had failed to meet his burden of establishing that the hardship for 

his son rises to the level of exceptional and extremely unusual hardship. Ruiz filed a 

timely petition for review.

While we ordinarily have jurisdiction to review a final order of removal under 8 

U.S.C. § 1252(a)(1), Congress has also provided that “no court shall have jurisdiction to 

review [. . .] any other decision or action of the Attorney General the authority for which 

is specified under this subchapter [8 U.S.C. §§ 1151-1378] to be in the discretion of the 

Attorney General.” 8 U.S.C. § 1252(a)(2)(B). While we retain jurisdiction to review 

constitutional claims and questions of law raised in a petition for review, Sukwanputra v. 

Gonzales, 434 F.3d 627, 634 (3d Cir. 2006); 8 U.S.C. § 1252(a)(2)(D), this jurisdiction is 

“narrowly circumscribed,” Jarbough v. Attorney Gen. of the United States, 483 F.3d 184, 

188 (3d Cir. 2007).

The Attorney General (through the BIA and the IJ) may grant cancellation of 

removal to an alien who, inter alia, “establishes that removal would result in exceptional 

and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of 

the United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. § 

1229b(b)(1)(D). We have held that the decision whether an alien has established an 

“exceptional and extremely unusual hardship” is a discretionary decision not subject to 

judicial review. Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). 

Thus, we may not disturb the BIA’s decision affirming the IJ’s finding that Ruiz did not 

 

does not challenge this finding.
4

make the required showing for cancellation of removal under § 1229b(b)(1).

Here, the sole issue raised in Ruiz’s brief is “whether the Immigration Judge (“IJ”) 

erred in denying petitioner’s eligibility for cancellation of removal under the standards 

enunciated by the Board of Immigration Appeals in this case.” Although he couches his 

argument in constitutional terms by alleging that the three-year old son’s due process 

rights would be violated if Ruiz were removed, his argument is essentially a claim that 

the IJ erred in its consideration of Ruiz’s hardship factors. This is precisely the kind of 

claim for which we lack jurisdiction. “A party cannot confer jurisdiction on this Court 

where none exists simply by attaching a particular label to the claim raised in a petition 

for review.” Cospito v. Attorney Gen. of the United States, 539 F.3d 166, 170 (3d Cir. 

2008).

Accordingly, we grant the Government’s motion and will dismiss the petition for 

review for lack of jurisdiction.