UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MARCO TULIO RODRIGUEZ 

ROMERO, 

 Petitioner, 

v. 

MERRICK B. GARLAND, United States 

Attorney General, 

 Respondent. 

No. 21-9515 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, BACHARACH, and CARSON, Circuit Judges. 

_________________________________ 

 Marco Tulio Rodriguez Romero, a native and citizen of Guatemala, petitions 

for review of the decision of the Board of Immigration Appeals (the Board) 

upholding the immigration judge’s denial of his application for cancellation of 

removal. We dismiss the petition in part for lack of jurisdiction and deny the 

remainder as moot. 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 20, 2021

Christopher M. Wolpert 

Clerk of Court

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BACKGROUND

 In 2002 Mr. Romero entered the United States without being admitted or 

paroled after inspection and settled in Colorado. In addition to fathering three United 

States-citizen children, he accrued three Colorado misdemeanor criminal 

convictions—2012 and 2014 convictions for driving under the influence, and a 2014 

conviction for an offense apparently referred to commonly as harassment 

(strike/shove/kick). 

 Shortly after his 2014 convictions the government commenced removal 

proceedings, prompting Mr. Romero to apply for cancellation of removal. The 

immigration judge denied the application, finding that he did not meet the 

requirements of showing (1) he was “a person of good moral character” for the ten 

years preceding the application, 8 U.S.C. § 1229b(b)(1)(B), and (2) his children 

would experience “exceptional and extremely unusual hardship” from his removal, 

id. § 1229b(b)(1)(D). The Board agreed with the immigration judge on both points 

and dismissed the appeal. 

DISCUSSION

 Mr. Romero challenges the moral-character and extreme-hardship decisions, 

both directly and by attacking the agency’s credibility finding. We need examine 

only the arguments relevant to hardship, because that finding is determinative. 

 Congress has limited our review of the agency’s denial of cancellation of 

removal. Under 8 U.S.C. § 1252(a)(2)(B)(i), “no court shall have jurisdiction to 

review . . . any judgment regarding the granting of relief under” certain sections, 

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including § 1229b. “Our court reads [§ 1252(a)(2)(B)(i)] as denying jurisdiction to 

review the discretionary aspects of a decision concerning cancellation of removal 

under § 1229b(b)(1),” including “the determination of whether the petitioner’s 

removal from the United States would result in exceptional and extremely unusual 

hardship to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D).” Galeano-Romero 

v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020) (internal quotation marks omitted). 

Nevertheless, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review 

“constitutional claims” and “questions of law,” “including those that arise in the 

circumstances specified at § 1229b(b)(1),” Galeano-Romero, 968 F.3d at 1182. 

 The Board adopted the immigration judge’s analysis of hardship. Mr. Romero 

argues that the immigration judge “effectively dismissed” hardship factors, “failed to 

analyze them appropriately,” and “failed to balance the cumulative hardship factors.” 

Opening Br. at 23. He asserts that the immigration judge abused his discretion, and 

that the Board’s “adoption and affirmance of the [immigration judge’s decision] 

without any further evaluation of Mr. Romero’s hardship appeal grounds are a 

furtherance of the [immigration judge’s] abuse of discretion,” id. at 24. 

 These allegations about the agency’s exercise of discretion, however, are 

exactly the type of contentions § 1252(a)(2)(B)(i) precludes us from reviewing. 

See Galeano-Romero, 968 F.3d at 1181, 1184. Nor can Mr. Romero rely on 

§ 1252(a)(2)(D). “An alien does not present a colorable constitutional claim capable 

of avoiding the jurisdictional bar by arguing that the evidence was incorrectly 

weighed, insufficiently considered, or supports a different outcome.” 

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Galeano-Romero, 968 F.3d at 1184-85 (internal quotation marks omitted). 

Moreover, “[a] petition for review does not raise a question of law by disputing the 

Board’s appraisal of the degree of hardship likely to his [qualifying relatives],” id. at 

1182, or by criticizing “how the Board exercise[d] its discretion” even if such 

criticisms are “framed as a challenge to the application of a legal standard to 

established facts,” id. at 1184. 

 Mr. Romero’s credibility arguments also indirectly challenge the hardship 

determination. But as with the hardship arguments, we lack jurisdiction to review his 

contention that the Board “affirmed incorrect factual findings” and to grant his 

request to “review the [Board’s] factual findings for substantial evidence,” Aplt. 

Opening Br. at 16. See Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016) 

(credibility determinations are factual findings); Arambula-Medina v. Holder, 

572 F.3d 824, 828 (10th Cir. 2009) (“We have construed the term ‘judgment’ in 

[§ 1252(a)(2)(B)(i)] as referring to the discretionary aspects of a decision concerning 

cancellation of removal. This includes any underlying factual determinations.” 

(citation omitted)). 

We recognize that as part of his credibility argument, Mr. Romero asserts that 

the immigration judge and Board were biased against him. This portion of the 

argument invokes § 1252(a)(2)(D), because Mr. Romero is entitled to “a fair and 

impartial decision-maker” as a matter of due process. Lucio-Rayos v. Sessions, 875 

F.3d 573, 576 (10th Cir. 2017). For two reasons, however, we also lack jurisdiction 

to review this contention. First, Mr. Romero’s assertion that the Board was biased 

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amounts to no more than a complaint that the Board approved the immigration 

judge’s allegedly biased decision. But he did not argue before the Board that the 

immigration judge was biased. Because this is a matter that the Board could have 

remedied, his failure to exhaust his administrative remedies deprives us of 

jurisdiction. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) 

(“It is a fundamental principle of administrative law that an agency must have the 

opportunity to rule on a challenger’s arguments before the challenger may bring 

those arguments to court.”); Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th 

Cir. 2008) (“[O]bjections to procedural errors or defects that the [Board] could have 

remedied must be exhausted even if the alien later attempts to frame them in terms of 

constitutional due process on judicial review.”). Second, our review of his bias 

argument reveals that it is in essence merely an attack on the agency’s evaluation of 

the evidence. Such “challenge[s] to the agency’s discretionary and fact-finding 

exercises cloaked in constitutional garb” are “outside the scope of judicial review.” 

Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007) (internal quotation marks 

omitted). 

 In short, Mr. Romero cannot overcome the agency’s determination that he 

failed to satisfy the hardship requirement, either directly or by attacking the 

credibility finding. And without showing hardship, he cannot obtain cancellation of 

removal even if we were to rule in his favor on his moral-character arguments. 

See 8 U.S.C. § 1229b(b)(1). Accordingly, those arguments are moot. 

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CONCLUSION 

 We dismiss those portions of the petition for review challenging the hardship 

and credibility findings and arguing that the decisionmakers were biased. We deny 

the remainder of the petition as moot. 

Entered for the Court 

Harris L Hartz 

Circuit Judge 

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