UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-1157

YING LIN,

Petitioner,

v.

LORETTA E. LYNCH, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Submitted: September 8, 2016 Decided: September 13, 2016

Before MOTZ, DUNCAN, and WYNN, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per 

curiam opinion.

Bruno J. Bembi, LAW OFFICE OF BRUNO J. BEMBI, Hempstead, New

York, for Petitioner. Benjamin C. Mizer, Principal Deputy 

Assistant Attorney General, Kiley Kane, Senior Litigation 

Counsel, Kathryn M. McKinney, OFFICE OF IMMIGRATION LITIGATION, 

Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Ying Lin, a native and citizen of the People’s Republic of 

China, petitions for review of an order of the Board of 

Immigration Appeals (Board) dismissing her appeal from the 

immigration judge’s (IJ) decision denying her application for 

cancellation of removal. For the reasons set forth below, we 

dismiss the petition for review.

Under 8 U.S.C. § 1252(a)(2)(B)(i) (2012), entitled “Denials 

of discretionary relief,” “no court shall have jurisdiction to 

review any judgment regarding the granting of relief under 

section . . . 1229b,” which is the statutory section governing 

cancellation of removal. See Sorcia v. Holder, 643 F.3d 117, 

124-25 (4th Cir. 2011) (finding no jurisdiction to review 

discretionary denial of cancellation of removal absent 

constitutional claim or question of law). Here, the IJ found, 

and the Board agreed, that Lin failed to meet her burden of 

establishing that her two daughters would suffer exceptional and 

extremely unusual hardship if Lin is removed to China. Because 

this determination is clearly discretionary in nature, we lack 

jurisdiction to review challenges to this finding. 

As stated by the Ninth Circuit, “an ‘exceptional and 

extremely unusual hardship’ determination is a subjective, 

discretionary judgment that has been carved out of our appellate 

jurisdiction.” Romero-Torres v. Ashcroft, 327 F.3d 887, 888 
3

(9th Cir. 2003). The agency’s finding concerning whether an 

alien has proved an “exceptional and extremely unusual hardship” 

is not a constitutional claim or question of law that is exempt 

from the jurisdictional bar set forth in § 1252(a)(2)(B). See, 

e.g., Salas-Caballero v. Lynch, 786 F.3d 1077, 1078 (8th Cir. 

2015); Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014); 

Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 549-550 (11th Cir. 

2011); Solis v. Holder, 647 F.3d 831, 833 (8th Cir. 2011); see 

also Obioha v. Gonzales, 431 F.3d 400, 405 (4th Cir. 2005) (“It 

is quite clear that the gatekeeper provision [of 

§ 1252(a)(2)(B)(i)] bars our jurisdiction to review a decision 

of the [Board] to actually deny a petition for cancellation of 

removal.”). Indeed, we have concluded that the issue of 

hardship is committed to agency discretion and thus is not 

subject to appellate review. Okpa v. INS, 266 F.3d 313, 317 

(4th Cir. 2001). Lin’s challenge to the agency’s finding that 

she did not show that her removal would be an exceptional and 

extremely unusual hardship to her two daughters living in the 

United States is not a reviewable constitutional claim or

question of law. Accordingly, we lack jurisdiction to review 

the denial of cancellation of removal and dismiss in part the 

petition for review.

Lin’s contention that she was denied due process because 

(1) the IJ did not accept her evidence submitted past the 
4

deadline; (2) her counsel appeared by telephone at the merits 

hearing; and (3) the IJ denied her motion for a continuance must 

fail. Lin cannot state a colorable due process claim because 

she has no liberty or property interest at stake. See Aparicio 

v. Lynch, __ F.3d __, __, 2016 WL 306809, at *5 (7th Cir. 2016) 

(cancellation of removal is “a form of discretionary relief in 

which there is no liberty interest at stake”); Nunez-Portillo v. 

Holder, 763 F.3d 974, 977 (8th Cir. 2014) (alien has no 

protected liberty interest in cancellation of removal); see also

Dekoladenu v. Gonzales, 459 F.3d 500, 508 (4th Cir. 2006) (“No 

property or liberty interest can exist when the relief sought is 

discretionary.”), abrogated on other grounds by Dada v. Mukasey, 

554 U.S. 1 (2008); see also Smith v. Ashcroft, 295 F.3d 425, 

429-30 (4th Cir. 2002) (holding that alien’s lack of a 

“protected liberty or property interest” in the relief he 

sought—a discretionary waiver of deportation—was “a circumstance 

fatal to his due process claim”). Even if the Lin could assert 

a due process claim, we concluded that she failed to show that 

the proceeding was fundamentally unfair. Anim v. Mukasey, 535 

F.3d 243, 256 (4th Cir. 2008). 

Finally, because Lin failed to show that she substantially 

complied with the requirements under In re Lozada, 19 I. & N. 

Dec. 637 (B.I.A. 1988), her ineffective assistance of counsel 

claim fails. 
5

Accordingly, we dismiss in part and deny in part the 

petition for review. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

PETITION DISMISSED IN PART

AND DENIED IN PART