2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-12-2010

Juan Donis Contreras v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3056

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Recommended Citation

"Juan Donis Contreras v. Atty Gen USA" (2010). 2010 Decisions. Paper 1533.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3056

___________

JUAN OSWALDO DONIS CONTRERAS,

DELFINA EUNICE DONIS HERNANDEZ,

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. Nos. A072-565-371 & A073-170-451)

Immigration Judge: Honorable Frederic Leeds

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 1, 2010

Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges

 (filed: April 12, 2010) 

___________

OPINION

___________

PER CURIAM.

Juan Oswaldo Donis Contreras and Delfina Eunice Donis Hernandez

petition for review of a decision of the Board of Immigration Appeals (BIA). For the
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reasons below, we will dismiss the petition for review.

Petitioners are citizens of Guatemala. In June 2007, they were charged as

removable as inadmissible aliens present in the United States without being admitted or

paroled. They conceded removability and applied for cancellation of removal. They

argued that their United States citizen daughter would suffer exceptional and extremely

unusual hardship if her parents were removed to Guatemala because she suffers from

asthma and would accompany them if they were removed. The Immigration Judge (IJ)

found that petitioners had not shown that their citizen daughter would suffer exceptional

and extremely unusual hardship. He denied the application for cancellation of removal

and ordered the petitioners removed to Guatemala. The BIA dismissed the appeal. 

Petitioners filed a petition for review.

We have jurisdiction to review constitutional claims and questions of law

but not factual or discretionary determinations related to cancellation of removal.

Mendez-Moranchel v. Ashcroft, 338 F.3d 176 (3d Cir. 2003). Petitioners argue that the IJ

abandoned his role as a neutral fact-finder by conducting his own research on asthma and

that this violated their due process rights. The government argues that petitioners failed

to exhaust this argument by raising it before the BIA. We agree. Under 8 U.S.C.

§ 1252(d)(1), we may review a final order of removal only if the petitioners have

exhausted all administrative remedies. Petitioners could have raised this due process

claim before the BIA. See Bonhometre v. Gonzales, 414 F.3d 442, 447-48 (3d Cir.
2005). Their failure to do so deprives us of jurisdiction to review the claim. 

Accordingly, we will dismiss the petition for review.

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