United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

 Argued October 26, 2005

 Decided January 25, 2007

Before

 Hon. JOEL M. FLAUM, Circuit Judge

 Hon. TERENCE T. EVANS, Circuit Judge

 Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-2345

LETICIA CERVANTES DE

HERNANDEZ,

Petitioner-Appellant,

v.

MICHAEL CHERTOFF, et al., 

 Respondents-Appellees.

Appeal from the United States

District Court for the Eastern

District of Wisconsin.

No. 05 C 347

Rudolph T. Randa, Chief Judge.

O R D E R

Letitia Cervantes de Hernandez, a Mexican citizen, seeks an adjustment of

her status and a waiver of inadmissibility. The Immigration Judge (“IJ”) denied

both requests. Cervantes de Hernandez argues that the IJ’s failure to determine

whether she made a material and willful misrepresentation on her application for

an adjustment of status denied her due process. She also contends that the IJ

applied an improper legal standard to her request for a waiver of inadmissibility. 

We, however, lack jurisdiction to review Cervantes de Hernandez’s due process

challenges to the denial of her requests for adjustment of status and a waiver of

inadmissibility. Moreover, even if we could review her challenge to the denial of her

waiver request, the IJ did not apply an improper standard in denying the request. 

As a result, we deny the petition for review. 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 05-2345 Page 2

I. BACKGROUND

Letitia Cervantes de Hernandez, a Mexican citizen, entered the United

States without inspection over twenty years ago. She is married to a United States

citizen and has two United States citizen children, ages thirteen and nineteen at

the time of the immigration judge’s decision. In 1995, she pled guilty to

transferring false United States identification documents and possessing unlawful

United States documents in violation of 18 U.S.C. §§ 1028(a)(2) and 1028(a)(6). She

received a sentence of two years’ probation.

The United States government initiated deportation proceedings in 1996,

alleging that she entered the United States without inspection. Cervantes de

Hernandez then filed an Application to Register Permanent Residence or Adjust

Status Form (an “I-485 form”). One question on this application asked whether she

had ever “been arrested, cited, charged, indicted, fined, or imprisoned for breaking

or violating any law or ordinance, excluding traffic violations.” The answer “no”

followed this question on the application she filed. Acknowledging this answer was

incorrect in light of her conviction, she suggests that her attorney is responsible for

the misrepresentation. In December 1997, the government notified Cervantes de

Hernandez of additional grounds for deportability, including that she had willfully

misrepresented a material fact on her I-485 form. See 8 U.S.C. § 1182(a)(6)(C)(i). 

She then filed an application for a waiver of inadmissibility. 

After a series of hearings, the immigration judge ruled that Cervantes de

Hernandez was deportable because she entered the United States without

inspection. See 8 U.S.C. § 1227. Although the IJ found Cervantes deportable for

entering the United States without inspection, she may have been able to lawfully

remain in the United States if the IJ had granted her request for an adjustment of

status. See 8 U.S.C. § 1255(i)(1). The IJ, however, found that Cervantes de

Hernandez was subject to the ground of inadmissibility contained in 8 U.S.C. §

1182(a)(6)(C)(i). This section provides that “[a]ny alien who, by fraud or willfully

misrepresenting a material fact, seeks to procure (or has sought to procure or has

procured) a visa, other documentation, or admission into the United States or other

benefit provided under this chapter is inadmissible.” 

 An applicant deemed inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i) needs a

waiver of inadmissibility to be eligible for an adjustment of status. See 8 U.S.C. §

1182(i). Although Cervantes de Hernandez had applied for such a waiver, the IJ

denied her request. After noting that normally her family ties would mean he

would grant the waiver (she was married to a United States citizen and had two

United States citizen children), the IJ found that Cervantes de Hernandez’s

testimony at the hearing “was neither altogether truthful nor candid.” The IJ

concluded that Cervantes de Hernandez’s testimony on cross examination

amounted to significant involvement in the false identification scheme for which she

had been convicted, and that the evidence suggested she had much more
No. 05-2345 Page 3

1

In her arguments to this court, Cervantes de Hernandez does not contest the

denial of her motion to reopen.

involvement than she had admitted on direct examination. He therefore denied her

request for a waiver of inadmissibility. 

Cervantes de Hernandez appealed to the BIA. The BIA affirmed the IJ’s

decision without opinion and ordered her to voluntarily depart within thirty days. 

Cervantes de Hernandez next filed a motion to reopen alleging that her former

attorney had provided ineffective assistance of counsel by answering the criminal

history question on her I-485 form incorrectly. In connection with her motion to

reopen, she submitted a letter from her former attorney instructing her to sign the

form, complete a copy of the form, and then mail both back to him; the letter stated

he would then have the answers typed on the original form. Cervantes de

Hernandez filed her motion to reopen one day late, however, and the BIA denied it

as untimely, noting that Cervantes was represented by counsel and could have

raised the claims against her former counsel earlier.1

 Cervantes de Hernandez

later filed a petition for writ of habeas corpus in the district court. The district

court denied her petition, and Cervantes de Hernandez filed a notice of appeal. 

II. ANALYSIS

A. We will treat this matter as a petition for review. 

Shortly after Cervantes de Hernandez filed her appeal from the district

court’s decision denying her petition for a writ of habeas corpus, the REAL ID Act

took effect. The Act does not set forth how a court of appeals should treat an appeal

from a district court’s denial of a request for habeas relief brought under 28 U.S.C. §

2241 that was pending in the appellate court when the Act took effect. We have,

however, joined other circuits in concluding that these claims should also be treated

as petitions for review. Padilla v. Gonzales, 470 F.3d 1209, 1213 (7th Cir. 2006)

(citing Gonzales-Gomez v. Achim, 441 F.3d 532, 533 (7th Cir. 2006); Rosales v.

Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736 (5th Cir.

2005); Alvarez-Barajas v. Gonzales, 418 F.3d 1050 (9th Cir. 2005); Bonhometre v.

Gonzales, 414 F.3d 442 (3d Cir.2005)). Both parties agree that this is the proper

course. The REAL ID Act nullified the district court’s ruling on Cervantes de

Hernandez’s habeas petition, and we will review her case as a petition for review.

See Padilla, 470 F.3d at 1213.

B. Cervantes de Hernandez’s challenges to the denials of her requests 

 for adjustment of status and a waiver of inadmissibility do not 

 succeed.

Cervantes de Hernandez presents two arguments to us. First, she contends

that the IJ’s failure to explicitly determine the materiality and willfulness of the

misrepresentation on her I-485 form denied her due process. Second, she argues

that when the IJ denied her request for a waiver of inadmissibility, the IJ
No. 05-2345 Page 4

improperly balanced the equities instead of determining whether she had suffered

extreme hardship. She also contends this procedure denied her due process. 

The government submits that we lack jurisdiction to consider either of these

arguments. The Immigration and Nationality Act states that appellate courts may

not review “(i) any judgment regarding the granting of relief under section 1182(h),

1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision or action of the

Attorney General or the Secretary of Homeland Security the authority for which is

specified under this [subchapter] to be in the discretion of the Attorney General or

the Secretary of Homeland Security, other than the granting of relief under section

1158(a) of this title.” 8 U.S.C. § 1252(a)(2)(B). Both Cervantes de Hernandez’s

request for adjustment of status (8 U.S.C. § 1255) and request for a waiver of

inadmissibility (8 U.S.C. § 1182(i)) fall within this provision. The REAL ID Act,

however, 2005, qualifies this jurisdiction-stripping provision with a new provision

that provides:

Nothing in subparagraph (B) or (C), or in any other provision of this chapter

(other than this section) which limits or eliminates judicial review, shall be

construed as precluding review of constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court of appeals in

accordance with this section.

8 U.S.C. § 1252(a)(2)(D). As a result, we may review constitutional claims and

“questions of law” presented in final removal orders. Hamdan v. Gonzales, 425 F.3d

1051, 1057 (7th Cir. 2005).

Cervantes de Hernandez labels her claims as constitutional due process

claims, and aliens have a constitutional right to due process in immigration

proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993); Giday v. Gonzales, 434 F.3d

543, 547 (7th Cir. 2006). Even so, “no due process challenge may be made unless

the challenger has been (or is threatened with being) deprived of life, liberty, or

property.” Cevilla, 446 F.3d 658, 662 (7th Cir. 2006). As a result, we concluded in

Cevilla that “an alien’s right to due process does not extend to proceedings that

provide only . . . discretionary relief.” Id. (quoting Hamdan v. Gonzales, 425 F.3d

1051, 1060-61)); see also Dave v. Ashcroft, 363 F.3d 649, 653 (7th Cir. 2004). 

1. Adjustment of Status

Cervantes de Hernandez’s challenge to the denial of her request for

adjustment of status does not present a colorable due process claim. Because

adjustment of status is a discretionary form of relief, an alien’s right to due process

does not extend to requests for such relief. Hamdan, 425 F.3d at 1051. And even if

we could consider this claim, the record does not reflect that she was denied due

process. Cervantes de Hernandez does not contend, for example, that she did not

receive an opportunity to present evidence suggesting that the answer on her I-485

form was not a material misrepresentation. Cf. Rodriguez Galicia v. Gonzales, 422

F.3d 529, 538 (7th Cir. 2005) (due process requires that aliens receive a meaningful
No. 05-2345 Page 5

opportunity to be heard and to present evidence on their behalf). Rather, she

disagrees with the IJ’s conclusion that she made a material misrepresentation on

the form. This argument raises a challenge to the sufficiency of the evidence

supporting the IJ’s determination, not a due process claim. See Cevilla, 446 F.3d at

661 (application of law to facts does not constitute a reviewable due process claim). 

As a result, this challenge cannot succeed. 

2. Waiver of Inadmissibility

Due process also does not extend to Cervantes de Hernandez’s request for a

waiver of inadmissibility. The provision under which she seeks a waiver, 8 U.S.C. §

1182(i)(1), provides:

The Attorney General may, in the discretion of the Attorney General, waive

the application of clause (i) of subsection (a)(6)(C) of this section in the case of

an immigrant who is the spouse, son, or daughter of a United States citizen or

of an alien lawfully admitted for permanent residence if it is established to the

satisfaction of the Attorney General that the refusal of admission to the

United States of such immigrant alien would result in extreme hardship to

the citizen . . . .

First, like an adjustment of status, the waiver of inadmissibility that Cervantes de

Hernandez seeks is a discretionary form of relief. See Vasile v. Gonzales, 417 F.3d

766, 768 (7th Cir. 2005) (“Permissive language that refers to demonstrating

something to the agency’s ‘satisfaction’ is inherently discretionary.”). In addition,

Cervantes de Hernandez’s contention that the IJ did not determine whether she or

her family members would suffer “extreme hardship” if her request was denied does

not aid her due process argument. We considered a similar argument in

Cevilla and concluded that “even if all the statutory criteria, including extreme

hardship, are present” we would still lack jurisdiction to review the due process

challenge “because [the criteria] are merely preconditions to asking the government

to exercise discretion in the government’s favor.” 446 F.3d at 662. Although Cevilla

addressed cancellation of removal and not a waiver of inadmissibility, the same

principle applies here. Because a waiver of inadmissibility is discretionary, even if

Cervantes de Hernandez had shown extreme hardship, we could not review her due

process challenge.

We have, however, reviewed as “questions of law” challenges to whether the

correct legal standard was applied to a claim. See Ali v. Achim, 468 F.3d 462, 465

(7th Cir. 2006). Cervantes de Hernandez maintains that the IJ used an improper

standard when it denied her request for a waiver of inadmissibility, as she contends

the IJ should have determined whether she suffered extreme hardship. Although a

waiver of inadmissibility under 8 U.S.C. § 1182(i) now requires a showing of

extreme hardship, see Cervantes-Gonzales v. I.N.S., 244 F.3d 1001, 1004 (9th Cir.

2001), the statute does not make a waiver of inadmissibility automatic upon an

extreme hardship demonstration. Rather, as in the cancellation of removal relief at

issue in Cevilla, a showing of “extreme hardship” is only one of the “preconditions to
No. 05-2345 Page 6

asking the government to exercise discretion in its favor.” 446 F.3d at 662; see 8

U.S.C. § 1182(i).

We do not find that the IJ applied an improper standard in this case. The

IJ’s order explicitly set forth the proper “extreme hardship” standard and listed

factors in a determination of whether “extreme hardship” exists. The IJ then stated

that he would “pretermit threshold issues of eligibility for relief” and deny the

waiver in the exercise of his discretion. The IJ noted that although Cervantes de

Hernandez’s family ties would ordinarily outweigh many other considerations, the

IJ’s conclusion that her testimony was “neither altogether truthful nor candid” led

it to deny her request for a waiver. In support of this conclusion, the IJ pointed to

her testimony that although she testified she did not know what Roberto Salas was

doing while he lived at her home, she admitted that over $1000 was found in her

bedroom and that a copier, cameras, a laminator, and counterfeit Social Security

cards and resident alien cards were found in her home. The IJ concluded that the

presence of these items suggested that she had more knowledge about the

falsification of United States identification documents than her testimony on direct

examination reflected. 

The IJ’s analysis does not reflect an improper failure to determine whether

Cervantes de Hernandez had demonstrated “extreme hardship.” Instead, it

demonstrates that the IJ decided that even if Cervantes de Hernandez met

statutory threshold issues of eligibility such as extreme hardship, the IJ denied her

request in the exercise of its discretion. As a result, the IJ did not apply an

improper standard to Cervantes de Hernandez’s request for a waiver of

inadmissibility.

III. CONCLUSION

For the foregoing reasons, the petition for review is DENIED.