FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA DE LOURDES CASTRO DE 

MERCADO,

No. 06-70361 Petitioner,

Agency No.

v.  A98-006-996

MICHAEL B. MUKASEY, Attorney

General,

Respondent. 

ILDEFONSO MERCADO MORAN, 

Petitioner, No. 06-70366

v. Agency No. 

M A98-006-997 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 5, 2008—Pasadena, California

Filed August 21, 2008

Before: David R. Thompson, Diarmuid F. O’Scannlain, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge O’Scannlain

11365
COUNSEL

Joseph Mbacho, El Centro, California, filed briefs on behalf

of the petitioners. 

Catherine Carroll, Wilmer Cutler Pickering Hale & Dorr,

Washington, DC, argued the cause for the petitioners as courtappointed amicus curiae; Jonathan H. Becker, Wilmer Cutler

Pickering Hale & Dorr, Washington, DC, filed briefs as courtappointed amicus curiae; John A. Rogovin was on the briefs.

Charles Cantor, Attorney, Office of Immigration Litigation,

Civil Division, U.S. Department of Justice, Washington, DC,

argued the cause for the respondent; Luis E. Perea, Attorney,

Office of Immigration Litigation, filed a brief; John C. Cunningham, Senior Litigation Counsel, Office of Immigration

Litigation, and Peter D. Keisler, Assistant Attorney General,

Civil Division, were on the brief. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We are asked to reexamine whether we have jurisdiction to

review an Immigration Judge’s decision which held that the

removal of two aliens, a husband and wife, would not impose

an “exceptional and extremely unusual hardship” on their

United States-born children and the husband’s elderly parents,

both of whom have legal status to reside in the United States.

I

Maria de Lourdes Castro de Mercado and Ildefonso Mercado Moran (the “Mercados”) are natives and citizens of

11368 CASTRO DE MERCADO v. MUKASEY
Mexico who entered the United States without inspection in

1990 and 1989 respectively. The Mercados are married, have

four minor children, and share their home with Mr. Mercado’s

elderly parents. The Mercados’ children are citizens of the

United States. Mr. Mercado’s parents are lawful permanent

residents; their applications were sponsored by Mr. Mercado’s

brother, a U.S. citizen. The Mercados themselves have never

lawfully been admitted to this country. 

In 2004, the Department of Homeland Security served Mr.

and Mrs. Mercado with Notices to Appear charging them with

removability as aliens present in the United States without

admission or parol under 8 U.S.C. § 1182(a)(6)(A)(i). The

Mercados conceded the charges but applied for cancellation

of removal, arguing that their departure from this country

would impose an “exceptional and extremely unusual hardship” on their children and on Mr. Mercado’s parents. See id.

§ 1229b(b)(1). In 2005, an Immigration Judge (“IJ”) held a

hearing and denied the Mercados’ applications, acknowledging that their removal would impose a hardship on their relatives, but concluding that such hardship did not rise to such

an extreme level as to warrant relief. The IJ granted their

alternative applications for voluntary departure instead. 

The Board of Immigration Appeals (“BIA”) affirmed the

IJ’s decision without opinion, and the Mercados timely filed

petitions for review, arguing that the IJ’s decision was predicated on a legal error and violated their constitutional rights.1

II

[1] Before we reach the merits of the Mercados’ claims, we

must determine whether we have jurisdiction. The Immigration and Naturalization Act (“INA”) authorizes the Attorney

1Where, as here, the BIA summarily affirms the IJ’s ruling without

opinion, we review the IJ’s decision as the final agency determination. See

Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003). 

CASTRO DE MERCADO v. MUKASEY 11369
General to cancel the removal of an otherwise-deportable

alien if he or she meets certain requirements. See 8 U.S.C.

§ 1229b(b).2 One such requirement is that the alien demonstrate that his or her 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.” Id. § 1229b(b)(1)(D)

(emphasis added). The INA also contains a jurisdictionstripping provision, id. § 1252(a)(2)(B)(i) (“Subsection B(i)”),

which deprives us of jurisdiction to review “any judgment

regarding the granting of relief under section . . . 240A [cancellation of removal].” Id. We have interpreted this jurisdictional bar to encompass “all discretionary decisions involved

in the cancellation of removal context, including the ultimate

discretionary decision to deny relief.” Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir. 2003). The question

whether an alien’s relatives are likely to suffer an exceptional

and extremely unusual hardship upon the alien’s removal is a

discretionary decision because it is “ ‘a subjective question’

that depends on the value judgment ‘of the person or entity

examining the issue’,” not a legal determination. Id. at 891

(quoting Kalaw v. INS, 133 F.3d 1147, 1151 (9th Cir. 1997));

2Specifically, the Act provides that an alien is eligible for cancellation

of removal if he or she 

(A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the

date of such application; 

(B) has been a person of good moral character during such

period; 

(C) has not been convicted of an offense under section

1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and 

(D) 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). 

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see also Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th

Cir. 2005) (“[W]hether an alien demonstrated ‘exceptional

and extremely unusual hardship under 8 U.S.C.

§ 1229b(b)(1)(D) [i]s a discretionary determination and [i]s

therefore unreviewable under [Subsection B(i)].”). 

[2] Nevertheless, Subsection B(i) does not deprive us of

jurisdiction over questions pertaining to a petitioner’s statutory eligibility for cancellation of removal, such as whether

certain relatives qualify for consideration in the IJ’s hardship

analysis, because such questions are “purely legal and hence

non-discretionary.” Montero-Martinez v. Ashcroft, 277 F.3d

1137, 1144-45 (9th Cir. 2002); see id. (holding that we have

jurisdiction to review an IJ’s conclusion as to whether an

alien’s adult child is a qualifying relative); Molina-Estrada v.

INS, 293 F.3d 1089, 1093-94 (9th Cir. 2002) (holding that we

have jurisdiction to consider whether an alien’s parent is a

lawful permanent resident). In addition, the Real ID Act of

2005, Pub.L. No. 109-13, div. B, 119 Stat. 231, vests us with

jurisdiction to review “constitutional claims or questions of

law raised upon a petition for review.” 8 U.S.C.

§ 1252(a)(2)(D) (“Subsection D”). Still, we have held that

Subsection D “did not alter our jurisdiction” over the agency’s denial of an application for cancellation of removal.

Martinez-Rosas, 424 F.3d at 929. We continue to “lack jurisdiction to review the IJ’s subjective, discretionary determination that [a petitioner] did not demonstrate ‘exceptional and

extremely unusual hardship.’ ” Id. at 930.3

3After Martinez-Rosas, we decided Ramadan v. Gonzales, 479 F.3d 646

(9th Cir. 2007) (per curiam), reh’g denied, 504 F.3d 973. There, we held

that the “questions of law” over which the Real ID Act vests this court

with jurisdiction include “questions involving the application of statutes or

regulations to undisputed facts,” otherwise known as “mixed questions of

fact and law.” Id. at 650. Nevertheless, Ramadan emphasized that it did

not infringe upon the rule that discretionary determinations are beyond our

review. Id. at 654. 

CASTRO DE MERCADO v. MUKASEY 11371
III

Against this backdrop, the Mercados assert three challenges

to the IJ’s assessment of the hardships in their case, arguing

that Subsection D provides us with jurisdiction to review all

three.

4

A

First, the Mercados contend that the IJ underestimated the

hardships in this case because it misconstrued Mr. Mercado’s

brother’s statutory obligation to provide financial support to

Mr. Mercado’s parents. They suggest that such error creates

a question of law subject to our review under Subsection D.

Mr. Mercado’s parents gained lawful permanent residency

status as “family-sponsored immigrants” under 8 U.S.C.

§ 1182(a)(4)(C). Their family sponsor was Mr. Mercado’s

brother, who was required to execute an affidavit promising

to maintain his parents “at an annual income that is not less

than 125 percent of the Federal poverty line.” Id.

§ 1183a(a)(1)(A). Such promise is legally enforceable against

Mr. Mercado’s brother by his parents, the federal or any state

government, or any entity that provides public assistance to

his parents. Id. § 1183a(a)(1)(B). 

In evaluating the hardship that would befall Mr. Mercado’s

parents if the Mercados were removed, the IJ considered Mr.

Mercado’s brother’s obligation among other things. In so

4We lack jurisdiction over the Mercados’ claim that the IJ failed to

serve as an impartial adjudicator or to afford them a full and fair hearing

because they failed to assert such claim in their brief to the BIA. See 8

U.S.C. § 1252(d)(1) (stating that a “court may review a final order of

removal only if . . . the alien has exhausted all administrative remedies

available to the alien as of right”); Barron v. Ashcroft, 358 F.3d 674, 678

(9th Cir. 2004) (holding that § 1252(d)(1) requires the alien to exhaust any

claims of “ ‘procedural error’ that an administrative tribunal could remedy” before we may consider such claims upon a petition for review). 

11372 CASTRO DE MERCADO v. MUKASEY
doing, the Mercados assert that the IJ incorrectly reasoned

that Mr. Mercado’s brother’s obligation to provide financial

support to his parents would compensate for the emotional,

medical, physical, and financial support the Mercados currently provide. 

[3] We need not consider whether the IJ actually made such

an error because the question whether and to what extent Mr.

Mercado’s brother is likely to support his parents upon the

Mercados’ removal is not a question of law, but an evidentiary determination outside the scope of our review. Even if the

Mercados could demonstrate that the IJ misunderstood the

support § 1183a requires Mr. Mercado’s brother to provide,

their claim is simply an argument that the IJ underestimated

the hardship their removal would cause. We lack jurisdiction

over such question. See Romero-Torres, 327 F.3d at 887;

Torres-Aguilar v. INS, 246 F.3d 1267, 1270 (9th Cir. 2001).

B

[4] Next, the Mercados argue that the IJ abused his discretion by misapplying the facts of their case to the hardship

standard, thereby violating their right to due process.

Although we have jurisdiction to review due process claims

arising from the agency’s denial of cancellation of removal,

such claims “must allege at least a colorable constitutional

violation.” Martinez-Rosas, 424 F.3d at 930. In MartinezRosas, we rejected the argument that an IJ’s application of the

facts of a petitioner’s case to the hardship standard—in other

words, the IJ’s exercise of discretion—creates a colorable

constitutional claim. Id. As we explained, “[s]uch an assertion

is nothing more than an argument that the IJ abused his discretion, a matter over which we have no jurisdiction.” Id.

Therefore, the Mercados’ second argument is foreclosed by

our precedent.

C

Finally, the Mercados assert that, if they are removed, they

will take their children with them to Mexico but leave Mr.

CASTRO DE MERCADO v. MUKASEY 11373
Mercado’s parents behind. As a consequence, they suggest

that the IJ’s denial of their applications for cancellation of

removal impacts the “unity” of their family, which they contend is a “fundamental right.” Although the Mercados’

acknowledge that their removal violates neither their own due

process rights nor those of their family members, see, e.g.,

Rubio de Cachu v. INS, 568 F.2d 625 (9th Cir. 1977), they

argue that the constitution requires judicial review over any

hardship determination by the agency that impacts the unity

of the family of the petitioner subject to removal. Thus, they

argue that we must consider whether the IJ abused its discretion in evaluating the hardships in this case. 

[5] Setting aside the questions whether “family unity” is a

constitutionally-protected right or whether it is impacted by

the removal of an alien from the United States, accepting the

Mercados’ argument would require us to ignore our precedent. In Martinez-Rosas, we held that Subsection D does not

provide us with jurisdiction to review the agency’s discretionary determination as to whether a petitioner’s immediate family members would suffer an “exceptional and extremely

unusual hardship” upon the petitioner’s removal. 424 F.3d at

929-30. Creating an exception to this rule for any case where

the petitioner’s family unity is implicated would swallow the

rule itself. The plain terms of the cancellation of removal statute require the IJ to consider whether removal would result in

hardship to the petitioner’s closest relatives—his or her

“spouse, parent[s], or child[ren].” 8 U.S.C. § 1229b(b)(1)(D).

Thus, every hardship determination by the agency affects the

members of the petitioner’s family and, hence, the “family

unity” the Mercados ask us to recognize. We have already

held that we lack jurisdiction to review hardship determinations because they are committed to the discretion of the

agency alone. Martinez-Rosas, 424 F.3d at 930. We lack the

authority to reconsider that rule here. See Hart v. Massanari,

266 F.3d 1155, 1171 (9th Cir. 2001) (“[A] later three-judge

panel considering a case that is controlled by the rule

11374 CASTRO DE MERCADO v. MUKASEY
announced in an earlier panel’s opinion has no choice but to

apply the earlier-adopted rule . . . .”).5

IV

[6] Because we lack jurisdiction for the foregoing reasons,

the Mercados’ petitions for review are 

DISMISSED. 

5Moreover, the Mercados’ asserted right to family unity is implausible.

True, the Supreme Court has consistently defined “the freedom of personal choice in matters of marriage and family life [a]s one of the liberties

protected by the Due Process Clause of the Fourteenth Amendment,”

Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion). Indeed, it has held that the Constitution protects freedom of choice

with respect to childbearing, see, e.g., Roe v. Wade, 410 U.S. 113 (1973);

Griswold v. Connecticut, 381 U.S. 479 (1965), the right of parents to custody of their biological children, Stanley v. Illinois, 405 U.S. 645 (1972),

and parents’ decision-making authority in matters of child rearing and

education, see, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972). The denial

of an application for cancellation of removal implicates none of those

rights, and the Mercados point to no authority to suggest that the Constitution provides them with a fundamental right to reside in the United States

simply because other members of their family are citizens or lawful permanent residents. 

CASTRO DE MERCADO v. MUKASEY 11375