FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELFIDO MENDEZ-CASTRO; ROSA 

IMELDA MENDEZ, No. 06-70362

Petitioners, Agency Nos.

v.  A92-693-802

M A77-110-809 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 6, 2008—Pasadena, California

Filed January 12, 2009

Before: Alex Kozinski, Chief Judge,

Diarmuid F. O’Scannlain, and William A. Fletcher,

Circuit Judges.

Opinion by Judge O’Scannlain

389
COUNSEL

Henry Weissman, Munger, Tolles & Olson LLP, Los Angeles, California, argued the cause for the petitioners and filed

briefs. 

William C. Minick, Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC, argued the

cause for the respondent and filed a brief; Peter D. Keisler,

Assistant Attorney General, Civil Division, and Linda S.

Werney, Assistant Director, were on the brief. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether we have jurisdiction to review the

Board of Immigration Appeals’ application of its own precedent in determining whether the removal of two aliens would

cause their children to suffer “exceptional and extremely

unusual hardship.”

I

Elfido Mendez-Castro and Rosa Imelda Mendez (“the petitioners”) are natives and citizens of Mexico who entered the

392 MENDEZ-CASTRO v. MUKASEY
United States without inspection in October 1985 and March

1987, respectively. The petitioners separately were served

with Notices to Appear charging them as removable under 8

U.S.C. § 1182(a)(6)(A)(i), as aliens present in the United

States without having been admitted or paroled. 

The petitioners filed applications for cancellation of

removal arguing, among other things, that their removal to

Mexico would impose an “exceptional and extremely unusual

hardship” under 8 U.S.C. § 1229b(b)(1)(D) on their four children, all of whom are United States citizens. One of their children, a daughter named Mireya, has a speech disorder that

prevents her from properly pronouncing certain words. At a

hearing on their applications before an immigration judge

(“IJ”), the petitioners expressed concern that, while Mireya’s

condition had improved from special education in the United

States, her speech would regress were she to move to Mexico.

Another child, Mariana, is an honor student who cannot read

or write in Spanish. The petitioners expressed concern at the

hearing that Mariana would not be able to continue her academic progress were she to reside in Mexico with her parents.

Regarding their two remaining children, the petitioners

expressed general concern that removal would strip them of

educational opportunities and that it would separate them

from family members who reside in the United States. 

The IJ rejected the petitioners’ arguments. The IJ noted that

“the most recent educational records on Mireya indicate that

her speaking skills, her overall academic skills, and her social

skills, have significantly improved in the United States,” and

furthermore that she “has the legal potential for a free and

thorough education in Mexico.” Concerning Mariana, the IJ

found that “owing to her intellectual skill, her fluency in the

speaking of Spanish, and her family contact in Mexico and

owing to what appears to be her future legal rights to Mexican

citizenship, and a free education in Mexico, there is no evidence that the relocation of Mariana to Mexico would cause

her the kind and scope of challenges which would equate with

MENDEZ-CASTRO v. MUKASEY 393
‘exceptional and extremely unusual hardship.’ ” Lastly, the IJ

found that the removal of the petitioners’ other children

“would [not] cause them a degree of hardship that would

come close to the phrase ‘exceptional and extremely unusual,’ ” because of their good health, youth and ability to speak

Spanish. 

The IJ therefore denied the petitioners’ applications for

cancellation of removal. In a per curiam opinion, the Board of

Immigration Appeals (“BIA”) affirmed the IJ’s decision and

cited Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994).1

The petitioners timely filed a petition for review.

II

The petitioners argue that the IJ failed to apply BIA precedent concerning whether Mireya’s special educational needs

rose to the level of an “exceptional and extremely unusual

hardship.” The petitioners also argue that the IJ failed to render a cumulative analysis of the hardship that removal would

cause the petitioners’ children to suffer. As always, we first

must determine whether we have jurisdiction to review such

claims. Miguel-Miguel v. Gonzales, 500 F.3d 941, 944 (9th

Cir. 2007).

A

[1] Under 8 U.S.C. § 1229b(b)(1), “[t]he Attorney General

may cancel removal of, and adjust to the status of an alien

lawfully admitted for permanent residence, an alien who is

inadmissible or deportable from the United States,” if the

alien satisfies four criteria, including a showing “that removal

1

“Where . . . the BIA affirms the IJ pursuant to [Burbano], and does not

express disagreement with any part of the IJ’s decision, the BIA effectively adopts the IJ’s decision in its entirety.” Moreno-Morante v. Gonzales, 490 F.3d 1172, 1174 (9th Cir. 2007). Accordingly, we “review the

IJ’s decision as if it were the BIA’s.” Id. 

394 MENDEZ-CASTRO v. MUKASEY
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.” Prior to the enactment of the REAL ID Act of 2005,

Pub. L. No. 109-13, div. B, 119 Stat. 231, we held that 8

U.S.C. § 1252(a)(2)(B)(i) strips us of jurisdiction to review an

IJ’s discretionary determination that an alien has failed to satisfy such standard. See Romero-Torres v. Ashcroft, 327 F.3d

887, 891-92 (9th Cir. 2003).

[2] The REAL ID Act amended § 1252 by retaining language foreclosing our ability to review “any judgment regarding the granting of relief under section . . . 1229b,” but adding

an exception for “constitutional claims or questions of law

raised upon a petition for review filed with an appropriate

court of appeals.” Pub. L. No. 109-13, div. B.,

§ 106(a)(1)(A)(iii), 119 Stat. 231, 310; see 8 U.S.C.

§§ 1252(a)(2)(B)(i), (a)(2)(D). The statute thereby “restored

judicial review of constitutional claims and questions of law

presented in petitions for review of final removal orders.”

Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.

2005) (quoting Fernandez-Ruiz v. Gonzales, 410 F.3d 585,

587 (9th Cir. 2005)). However, it “did not alter” our prior

holdings that we are barred from reviewing the merits of a

hardship determination. Id. at 929-30.

[3] Moreover, we have made clear that any challenge of an

IJ’s discretionary determination must present a colorable

claim. See id. at 930. “To be colorable in this context, the

alleged violation need not be substantial, but the claim must

have some possible validity.” Id. (internal quotation marks

omitted); see Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th

Cir. 2001) (“[A] petitioner may not create the jurisdiction that

Congress chose to remove simply by cloaking an abuse of discretion argument in constitutional garb . . . To determine

whether we have jurisdiction over claims labeled as due process violations, we must look beyond the label.”); see also

Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008)

MENDEZ-CASTRO v. MUKASEY 395
(applying the colorableness requirement to questions of law

raised in a petition for review). A petition for review that fails

to present such a colorable claim “is nothing more than an

argument that the IJ abused his discretion” in determining that

the petitioner “did not meet the requirement of ‘exceptional

and extremely unusual hardship,’ ” which is “a matter over

which we have no jurisdiction.” Martinez-Rosas, 424 F.3d at

930. Because the petitioner bears the burden of raising a colorable constitutional claim or question of law, see id., it necessarily follows that we must presume that we lack

jurisdiction absent such a showing.

B

The petitioners concede that we do not have jurisdiction to

reweigh the evidence underlying the IJ’s conclusion that

removal would not cause their children to suffer an “exceptional and extremely unusual hardship.” They contend, however, that their petition for review does not directly attack the

merits of the IJ’s hardship determination, but that it instead

presents the question of law that the IJ’s decision failed to

apply the correct legal standard governing a hardship determination. The petitioners also contend that the IJ’s decision was

factually inconsistent with prior agency precedent concerning

a qualifying relative’s special educational needs. 

1

[4] We have held that whether an IJ failed to apply a controlling standard governing a discretionary determination is a

question over which we have jurisdiction under

§ 1252(a)(2)(D). See Afridi v. Gonzales, 442 F.3d 1212, 1218

(9th Cir. 2006) (holding that, “[w]hile we cannot reweigh evidence” underlying a discretionary determination, “we can

determine whether the BIA applied the correct legal standard

in making its determination”), overruled on other grounds by

Estrada-Espinoza v. Mukasey, No. 05-75850, 2008 WL

4615681, at *9 n.15 (9th Cir., Oct. 20, 2008); see also Khan

396 MENDEZ-CASTRO v. MUKASEY
v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007) (“[W]here, as

here, a petitioner argues that the agency applied an erroneous

legal standard in making a discretionary determination, the

petitioner raises a question of law, which we have jurisdiction

to review.”). The petitioners’ first claim is therefore clearly

colorable and we have jurisdiction to address it, so long as it

satisfies the general requirement that a claim on appeal not be

frivolous. See Barco-Sandoval, 516 F.3d at 40 (“While the

argument that a discretionary decision was based on a legally

erroneous standard raises a question of law . . . we lack jurisdiction to review any legal argument that is so insubstantial

and frivolous as to be inadequate to invoke federal-question

jurisdiction.”) (internal quotation marks and citation omitted).

[5] The petitioners argue that the IJ failed to adhere to the

requirement under In re Monreal-Aguinaga, 23 I. & N. Dec.

56, 63-64 (BIA 2001), that an IJ consider the health of a petitioner’s qualifying relatives, including any “compelling special needs in school,” in rendering a hardship determination

under 8 U.S.C. 1229b(b)(1)(D).2 However, a cursory review

of the IJ’s decision reveals that such argument fails on two

independent grounds: the IJ cited Monreal in rendering its

decision and, moreover, the IJ explicitly considered Mireya’s

speech impediment in rendering its opinion. While the petitioners also would have us determine whether the IJ took into

account the purportedly “strong case” of hardship that arises

where a qualifying relative has special educational needs,

such an argument is inherently intertwined with the IJ’s

assessment of the facts, which we lack jurisdiction to review.3

2Because “exceptional and extremely unusual hardship” is not statutorily defined, we must look to BIA precedent setting forth the required

considerations in applying such standard. See Afridi, 442 F.3d at 1219.

3Contrary to the petitioners’ contention at oral argument, Monreal

nowhere requires that the IJ consider whether their United States citizen

children “would be deprived a meaningful education” upon removal.

While the petitioners also point to an isolated statement in another BIA

decision denying cancellation of removal because the alien “ha[d] not

shown that her children would be deprived of all schooling or of an opportunity to obtain any education [upon removal],” In re Andazola-Rivas, 23

I. & N. Dec. 319, 323 (BIA 2002), the BIA did not state that such is a

required consideration in every case. 

MENDEZ-CASTRO v. MUKASEY 397
[6] The record also patently belies the petitioners’ contention that the IJ failed to render a cumulative analysis of the

hardship that removal would inflict on their children. See

Recinas, 23 I. & N. Dec. at 472 (noting that Monreal “requires the assessment of hardship factors in their totality,

often termed a ‘cumulative analysis’ ”). As noted, the IJ

expressly cited and applied Monreal in rendering its decision,

which is all our review requires. In any event, the IJ’s decision discussed the children as a group, and the IJ concluded

that insufficient hardship would be suffered by “any or all” of

the petitioners’ children. 

[7] Because the IJ applied the correct legal standard in this

case, and because we may not proceed further to examine its

application of the facts of this case to the “exceptional and

extremely unusual hardship” standard, we must conclude that

the petitioners’ claims are “so insubstantial and frivolous” as

to preclude our jurisdiction over them. Barco-Sandoval, 516

F.3d at 40.

2

[8] We also lack jurisdiction to address the petitioners’

claim that the IJ’s decision in this case is factually inconsistent with prior agency hardship determinations. The “exceptional and extremely unusual hardship” standard “is almost

necessarily a subjective question” that depends on the “identity” and the “value judgment of the person or entity examining

the issue.” Romero-Torres, 327 F.3d at 890-91 (internal quotation marks omitted); see also Martinez-Rosas, 424 F.3d at

930 (noting that a hardship determination is “subjective [and]

discretionary”). Accordingly, a challenge to an IJ’s hardship

determination on such ground would require us step into the

IJ’s shoes and reweigh the facts in light of the agency’s subjective treatment of purportedly similar cases. This second

claim is not even colorable, but merely constitutes an attempt

398 MENDEZ-CASTRO v. MUKASEY
to “cloak[ ] an abuse of discretion argument” in the garb of a

question of law.4 Torres-Aguilar, 246 F.3d at 1271. 

This case is therefore distinguishable from Ramadan v.

Gonzales, 479 F.3d 646 (9th Cir. 2007), in which we held that

8 U.S.C. § 1252(a)(2)(D) confers jurisdiction to review the

BIA’s application of undisputed facts in determining whether

a petitioner satisfies the “changed circumstances” standard

under 8 U.S.C. § 1158(a)(2)(D). 479 F.3d at 648, 650. In

Ramadan, we had jurisdiction to review the application of

facts to the “changed circumstances” standard because such

standard “does not depend[ ] upon the identity of the person

or entity examining the issue, but rather is less value-laden

and does not reflect the decision maker’s beliefs in and

assessment of worth and principle.” Id. at 656 (internal quotation marks omitted). Because, as noted, we have held that the

“exceptional and extremely unusual hardship” standard is

subjective, and thus that it does implicate the “value judgment

of the person or entity examining the issue,” Romero-Torres,

327 F.3d at 890-91, we must conclude that we lack jurisdiction to review an IJ’s application of such standard to the facts

of a case, be they disputed or otherwise.5

4Thus, we also cannot review the petitioners’ claim that the IJ’s decision

violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et

seq., by providing an unexplained departure from prior agency practice.

See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 981 (2005) (noting that an “[u]nexplained [agency] inconsistency is

. . . a reason for holding an interpretation to be an arbitrary and capricious

change from agency practice under the [APA]”); Abebe v. Gonzales, 493

F.3d 1092, 1102 (9th Cir. 2007) (reviewing whether the BIA “consistently

interpreted the [relevant] test one way and then reversed course without

an adequate explanation”). Even if we had jurisdiction under

§ 1252(a)(2)(D) to review whether the denial of cancellation of removal

in this case violated the APA, we simply cannot determine whether the

BIA has inconsistently applied a determination founded on the “identity”

and “value judgment” of the entity deciding it. 

5We note that two of our recent opinions have identified, but expressly

declined to resolve, an apparent tension between Afridi and Ramadan

MENDEZ-CASTRO v. MUKASEY 399
III

[9] For the foregoing reasons, the petition for review is 

DISMISSED. 

regarding our jurisdiction to review discretionary decisions under the

REAL ID Act. See Husyev v. Mukasey, 528 F.3d 1172, 1179 (9th Cir.

2008); see also Dhital v. Mukasey, 532 F.3d 1044, 1049 n.2 (9th Cir.

2008) (per curiam). That is, while Afridi held that we have jurisdiction “to

review questions of law presented in petitions for review . . . even those

pertaining to otherwise discretionary determinations,” 442 F.3d at 1218

(emphasis added), Ramadan concluded that the REAL ID Act “does not

restore jurisdiction over discretionary determinations,” 479 F.3d at 654.

See Husyev, 528 F.3d at 1179 (noting that Ramadan reached a “contrary

conclusion” regarding our jurisdiction to review discretionary determinations). We need not resolve such tension here, since we hold that this

claim involves neither a question of law nor a non-subjective determination. 

We further note that Ramadan is in tension with Romero-Torres, where

we held that “an inquiry is discretionary where it is a subjective question

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

issue.” Romero-Torres, 327 F.3d at 891. Thus, while Ramadan distinguished between discretionary and subjective standards, Romero-Torres

held that the two are intertwined. In any event, because our precedent

clearly establishes that the “exceptional and extremely unusual hardship”

standard is subjective, see, e.g., Martinez-Rosas, 424 F.3d at 930, we need

not resolve such potential conflict. 

400 MENDEZ-CASTRO v. MUKASEY