Salvador Caballero-Hernandez v. Eric Holder, Jr.

Filing 920100203

Case: 09-60341

Document: 00511019853

Page: 1

Date Filed: 02/03/2010

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals Fifth Circuit

FILED
No. 09-60341 Summary Calendar February 3, 2010 Charles R. Fulbruge III Clerk

SALVADOR CABALLERO-HERNANDEZ, Petitioner v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A094-953-167

Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges. PER CURIAM:* Salvador Cabellero-Hernandez petitions this court for review of the Board of Immigration Appeals' decision summarily affirming the Immigration Judge's ("IJ") order denying his application for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1). Petitioner contests the merits of the IJ's determination that he was statutorily ineligible for cancellation of removal because he failed to

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.

*

Case: 09-60341

Document: 00511019853

Page: 2

Date Filed: 02/03/2010

No. 09-60341 demonstrate the requisite hardship. Further, Petitioner challenges the

constitutional basis of 8 U.S.C. §§ 1229b(b) and 1252(a)(2)(B). "This court lacks jurisdiction to review the IJ's [discretionary] hardship determination" under 8 U.S.C. § 1229b(b)(1). Rueda v. Ashcroft, 380 F.3d 831, 831 (2004). Petitioner's remaining constitutional claims are meritless.

Petitioner raises a due process challenge to 8 U.S.C. § 1229b(b)(2) on behalf of his American children, but "[l]egal orders of deportation to their parents do not violate any constitutional right of citizen children . . . ." Gonzalez-Cuevas v. INS, 515 F.2d 1222, 1224 (5th Cir. 1975). Petitioner next claims that

§ 1252(a)(2)(B) violates the Administrative Procedure Act ("APA"), but "the APA does not apply to deportation hearings under [the Immigration and Nationality Act]." Rivera-Cruz v. INS, 948 F.2d 962, 967 n.5 (5th Cir. 1992). For these reasons, petition for review is DENIED.

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