*

This order and judgment is not binding precedent except under the doctrines of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 1, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARTURO NUNEZ RODARTE; MARIA

GUADALUPE NUNEZ, 

Petitioners,

v.

ERIC H. HOLDER, JR., United States

Attorney General, 

Respondent.

Nos. 09-9510 & 09-9549

ORDER AND JUDGMENT*

Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.

After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

Petitioners-appellants Arturo Nunez-Rodarte and his wife, Maria Guadalupe

Nunez (“petitioners”) petition for judicial review of an order of the Board of Immigration

Appeals (“BIA”) denying their motion to reopen their application for cancellation of

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The ILJ also found that Mr. Nunez-Rodarte’s wife had failed to demonstrate the

first requirement, but this issue is not relevant to these appeals.

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removal under Immigration and Naturalization Act (“INA”) § 240A(b)(1), 8 U.S.C.

§ 1229b(b)(1). Respondent-appellee the United States (“respondent”) contends that under

8 U.S.C. § 1252(a)(2)(B), we lack jurisdiction to consider the BIA’s denial of petitioners’

motion to reopen. We agree with respondent and therefore DISMISS the petitions for

want of jurisdiction.

I. BACKGROUND

Petitioners are citizens of Mexico and have two children, aged sixteen and thirteen,

who are both citizens of the United States. Mr. Nunez-Rodarte has lived in the United

States unlawfully since 1986; his wife began living here sometime after July 1991. On

July 2, 2001, the United States placed petitioners in removal proceedings. Thereafter,

petitioners applied for cancellation of removal under § 1229b, which provides for

discretionary cancellation of removal when an alien demonstrates that: (1) he has been

physically and continuously present in the United States in the ten years preceding their

application; (2) he has been a person of good moral character during such period; (3) he

has not been convicted of certain criminal offenses; and (4) “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.” INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).

On October 15, 2007, the Immigration Law Judge (“ILJ”) found that petitioners

had failed to establish the fourth requirement under the statute.1

 Specifically, the ILJ

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found that the children would suffer by returning with petitioners to an unfamiliar culture

in Mexico, but that this hardship would not be exceptional or extremely unusual. The ILJ

noted that the children did not have any other family or support system in the United

States and that the only hardship they would experience is a lack of educational and

economic opportunities. 

Petitioners appealed to the BIA. On July 25, 2008, the BIA dismissed the appeal,

agreeing with the ILJ that petitioners had failed to meet their burden of proof to establish

extreme and unusual hardship to their United States citizen children. On October 15,

2008, petitioners filed a motion to reopen the BIA’s July 25 decision in order to present

new evidence supporting their claim of hardship. On January 5, 2009, the BIA denied the

motion to reopen, stating that “[t]he new facts alleged regarding the . . . children’s

educational difficulties, together with the facts already of record, do not indicate a

reasonable likelihood of success on the merits regarding the issue of exceptional and

extremely unusual hardship so as to make it worthwhile to develop the issues at a

hearing.” 

Petitioners now seek judicial review to contest the BIA’s January 5 denial of their

motion to reopen. They argue that the BIA: (1) ignored relevant precedent in determining

whether they had satisfied the hardship requirement; and (2) failed to articulate the basis

for its decision in anything other than “conclusory statements.” 

II. DISCUSSION

As respondent makes clear, the threshold issue is whether we have jurisdiction to

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consider the BIA’s denial of petitioners’ motion to reopen. Section 1252(a)(2)(B)

provides that “[n]otwithstanding any other provision of law, . . . no court shall have

jurisdiction to review . . . any judgment regarding the granting of relief under section . . .

1229b . . . of this title.” 8 U.S.C. § 1252(a)(2)(B). This provision precludes jurisdiction

to review the BIA’s denial of an application for cancellation of removal under § 240A of

the INA, 8 U.S.C. § 1229b. See Alvarez-Delmuro v. Ashcroft, 360 F.3d 1254, 1256 (10th

Cir. 2004); Morales Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir. 2003). This

provision also applies to a denial of a motion to reopen that is based on a finding that

petitioners’ new evidence did not support a finding of exceptional and extremely unusual

hardship. See Alzainati v. Holder, 568 F.3d 844, 849 (10th Cir. 2009) (“Because

§ 1252(a)(2)(B)(I) precludes our review of an ‘exceptional and extremely unusual

hardship’ determination under § 1229b(b)(1)(D), it also precludes our jurisdiction to

review the BIA’s denial of a motion to reopen because the alien still has failed to show

the requisite hardship.”). Thus, to the extent petitioners challenge the BIA’s denial of

their motion to reopen based on its determination that they had not shown that their

removal would cause their United States children to suffer exceptional and extremely

unusual hardship, we must dismiss the petition for lack of jurisdiction. 

We do, however, have jurisdiction to consider constitutional claims or questions of

law, INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D), but only insofar as such issues are

“colorable.” Alvarez-Delmuro, 360 F.3d at 1256–57; Morales Ventura, 348 F.3d at 1262. 

Petitioners suggest that the BIA ignored applicable case law and failed to consider

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relevant facts, but we conclude these issues are not subject to review. To the extent these

issues are couched in terms of due process, we have recognized the rule that “‘an alien

has no constitutionally-protected right to discretionary relief or to be eligible for

discretionary relief.’” United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir.

2004) (quoting Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th Cir. 2002)). 

To the extent these issues are framed in terms of other legal questions, petitioners do not

explain how the BIA ignored relevant legal authority or what facts it ignored. We thus

conclude petitioners have not raised colorable constitutional or legal questions and must

dismiss the petitions for lack of jurisdiction on those grounds as well. 

III. CONCLUSION

The petitions are DISMISSED for lack of jurisdiction.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge

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