2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-3-2011

Julio Garcia Vasquez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1553

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1553

___________

JULIO ALBERTO GARCIA VASQUEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A073-638-752)

Immigration Judge: Honorable Henry S. Dogin

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 2, 2011

Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed March 3, 2011)

___________

OPINION

___________

PER CURIAM

Before us is a petition for review of an order of the Board of Immigration Appeals 

(“BIA”) affirming the denial of Petitioner‟s application for cancellation of removal. We 

conclude that we lack jurisdiction to consider Petitioner‟s challenge to the agency‟s 
2

discretionary determination regarding his claim of hardship.

I.

Julio Alberto Garcia Vasquez, a native and citizen of Guatemala, entered the 

United States without inspection in 1994. Vasquez conceded removability in a hearing 

before an Immigration Judge (“IJ”) in 2008, but sought cancellation of removal based on 

hardship to his young son. He testified that he supported the boy and the boy‟s mother, 

who are both United States citizens. Administrative Record (“AR”) at 142-43. He also 

testified that the child‟s mother worked full-time, his son was in good health, the boy‟s 

maternal grandmother helped care for him, and his son would remain with his mother in 

the United States if Vasquez were removed to Guatemala. AR at 146-51. The IJ denied 

the request for cancellation of removal, concluding that Vasquez had not met “anything 

remotely resembling the standard of exceptional and extremely unusual hardship.” AR at 

92. Although he acknowledged the emotional hardship of leaving a son behind, the IJ 

noted that that was not enough to meet the standard. AR at 93. The BIA affirmed this 

decision, and Vasquez filed a timely petition for review. On appeal, Vasquez challenges 

the IJ‟s hardship determination.

II.

An alien who is removable from the United States is eligible for cancellation of 

removal if he can show, among other things, “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. 
3

§ 1229b(b)(1)(D). In this case, the IJ determined that Vasquez failed to establish 

“exceptional and extremely unusual hardship” to his young son. We do not have 

jurisdiction to review certain discretionary decisions under the Immigration and 

Nationality Act. See 8 U.S.C. § 1252(a)(2)(B)(i). This includes the decision whether an 

alien meets the hardship requirement in § 1229b. See Mendez-Moranchel v. Ashcroft, 

338 F.3d 176, 179 (3d Cir. 2003). We may, however, review “constitutional claims or 

questions of law.” 8 U.S.C. § 1252(a)(2)(D). Vasquez contends that his appeal is based

on questions of law. We disagree.

Vasquez claims that the IJ‟s decision deprives his son “of his due process and 

constitutional rights to receive medical and special services because of his hearing 

problems.” Pet. Br. at 4. But he presents no argument or legal authority in support of 

this claim. The assertion of a due process violation, standing alone, is insubstantial and 

does not amount to a colorable constitutional claim. See Pareja v. Att‟y Gen., 615 F.3d 

180, 186 (3d Cir. 2010) (explaining that jurisdiction under § 1252(a)(2)(D) is limited to 

“colorable” claims, and that a claim is not colorable if it is “wholly insubstantial and 

frivolous”). As we have stated, “a party may not dress up a claim with legal clothing to 

invoke this Court‟s jurisdiction.” Id. at 187. Furthermore, there is no basis in the record 

for this claim. Although his brief states that Vasquez based his cancellation of removal 

application on his son Michael‟s hearing problems and provided supporting 

documentation, Pet. Br. at 2, there is no documentation for the claim in the record and no 

testimony regarding hearing problems. On the contrary, Vasquez testified that his son –
4

named Jeffrey, not Michael – was in good health. Therefore, the claim appears to be 

wholly insubstantial and frivolous, and we lack jurisdiction to review it.

Vasquez also claims that the IJ failed to follow BIA precedent when conducting 

the hardship evaluation because he failed to consider the hardship factors in the 

aggregate. Pet. Br. at 4-6. He further argues that the IJ engaged in mere speculation 

when he concluded that the loss of economic support from Vasquez would be offset by 

the mother‟s return to the workforce after she completed her education. Id. at 6. 

Although Vasquez asserts that the IJ misapplied a legal standard, his claim actually

challenges the weight the IJ accorded the economic hardship factor. We have previously 

held that claims like these, i.e., claims that an IJ ignored factors or failed to evaluate them 

in the aggregate, do not raise questions of law and “amount to nothing more than 

„quarrels over the exercise of discretion.‟” See Cospito v. Att‟y Gen., 539 F.3d 166, 170 

(3d Cir. 2008) (citation omitted). Because Vasquez‟ claim involves only the IJ‟s 

discretionary decision regarding hardship, we do not have jurisdiction to review it.

Finally, we note that Vasquez did not raise on appeal to the BIA his due process 

claim or his claim that the IJ failed to consider the hardship factors in the aggregate. This 

failure to exhaust administrative remedies is yet another basis for finding that we lack 

jurisdiction to review Vasquez‟ petition. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. 

Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).

Accordingly, we will dismiss Vasquez‟ petition for review.