UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2106

VICTOR A. FERMAN, a/k/a Victor Alberto Ferman Molina,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration 

Appeals.

Submitted: February 11, 2014 Decided: February 20, 2014

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Petition dismissed in part, denied in part by unpublished per 

curiam opinion.

Victor A. Ferman, Petitioner Pro Se. Michael Christopher Heyse, 

Office of Immigration Litigation, UNITED STATES DEPARTMENT OF 

JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Victor A. Ferman, a native and citizen of El Salvador, 

petitions for review of an order of the Board of Immigration 

Appeals (“Board”) dismissing his appeal from the immigration 

judge’s order and denying his motion to remand. Ferman’s 

request for cancellation of removal under 8 U.S.C. § 1229b(b)(1) 

(2012) was denied because he failed to show that his removal 

would result in “exceptional and extremely unusual hardship” to 

his qualifying relatives. We dismiss in part and deny in part

the petition for review. 

Under 8 U.S.C. § 1252(a)(2)(B)(i) (2012), entitled 

“Denials of discretionary relief,” “no court shall have 

jurisdiction to review any judgment regarding the granting of 

relief under section . . . 1229b,” which is the section 

governing cancellation of removal. See Obioha v. Gonzales, 431 

F.3d 400, 405 (4th Cir. 2005) (“It is quite clear that the 

gatekeeper provision [of § 1252(a)(2)(B)(i)] bars our 

jurisdiction to review a decision of the BIA to actually deny a 

petition for cancellation of removal or the other enumerated 

forms of discretionary relief.”). However, this court does have 

jurisdiction over constitutional claims and questions of law. 8 

U.S.C. § 1252(a)(2)(B)(i), (D). Jean v. Gonzales, 435 F.3d 475, 

480 (4th Cir. 2006). “[A]n ‘exceptional and extremely unusual 

hardship’ determination is a subjective, discretionary judgment 
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that has been carved out of appellate jurisdiction.” RomeroTorres v. Ashcroft, 327 F.3d 887, 888 (9th Cir. 2003). Indeed, 

we have concluded that the issue of hardship is committed to 

agency discretion and thus is not subject to appellate review. 

Okpa v. INS, 266 F.3d 313, 317 (4th Cir. 2001).

Because Ferman does not raise a constitutional claim 

or a question of law regarding the dismissal of his appeal from 

the immigration judge’s order denying cancellation of removal, 

we lack jurisdiction and dismiss in part the petition for 

review. 

A motion to remand in order to consider new evidence 

that is filed while an appeal to the Board is pending is held to 

the same legal standard as a motion to reopen. See Onyeme v. 

INS, 146 F.3d 227, 234 (4th Cir. 1998). Such a motion must 

state the new facts to be proven at a hearing and must be 

supported by affidavits or other evidentiary material. See 8 

C.F.R. § 1003.2(c)(1) (2013). Further, such motion shall not be 

granted unless the evidence sought to be offered is material and 

was not available and could not have been discovered or 

presented at the former hearing. Id. The movant must also 

demonstrate that the new evidence would likely change the result 

in the case. See Matter of Coelho, 20 I. & N. Dec. 464, 473 

(B.I.A. 1992). The Board’s denial of a motion to remand and 
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reopen is reviewed for abuse of discretion. See Hussain v. 

Gonzales, 477 F.3d 153, 155 (4th Cir. 2007).

We also recognize three independent grounds on which a 

motion to reopen removal proceedings may be denied: “(1) the 

alien has not established a prima facie case for the underlying 

substantive relief sought; (2) the alien has not introduced 

previously unavailable, material evidence; and (3) where relief 

is discretionary, the alien would not be entitled to the 

discretionary grant of relief.” Onyeme, 146 F.3d at 234 (citing 

INS v. Abudu, 485 U.S. 94, 104-05 (1988)). We will reverse the

denial of a motion to reopen only if it is “arbitrary, 

irrational, or contrary to law.” Mosere v. Mukasey, 552 F.3d 

397, 400 (4th Cir. 2009) (internal quotation marks omitted).

We conclude that the Board did not abuse its 

discretion. Ferman did not show that the new evidence was 

previously unavailable. Nor did he show that the evidence 

established a prima facie case for cancellation of removal.

Accordingly, we dismiss in part and deny in part the 

petition for review. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process.

PETITION DISMISSED IN PART;

DENIED IN PART