Jesus Garibaldi-Hernandez v. Loretta Lynch
Filing
UNPUBLISHED OPINION FILED. [16-60685 Dismissed for Lack of Jurisdiction] Judge: PEH , Judge: EHJ , Judge: JES [16-60685]
Case: 16-60685
Document: 00514252258
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Date Filed: 11/28/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60685
Summary Calendar
FILED
November 28, 2017
Lyle W. Cayce
Clerk
JESUS MANUEL GARIBALDI-HERNANDEZ,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A090 736 128
Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
An immigration judge determined that Jesus Manuel GaribaldiHernandez, a native and citizen of Mexico who had permanent residency in the
United States, was removable based on his conviction for possession of cocaine,
a controlled substance crime, after being admitted.
See 8 U.S.C.
§ 1227(a)(2)(B)(i). Garibaldi-Hernandez applied for cancellation of removal as
a permanent resident alien, see 8 U.S.C. § 1229b(a), and the immigration judge
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*
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denied the application. Garibaldi-Hernandez now seeks review of the order of
the Board of Immigration Appeals (BIA) dismissing his appeal of the
immigration judge’s denial of cancellation relief. We will dismiss the petition
for lack of jurisdiction. As explained below, review of the discretionary denial
of cancellation relief is barred under 8 U.S.C. § 1252(a)(2)(B)(i), and no
exception to the bar applies in this case. See Zhao v. Gonzales, 404 F.3d 295,
302 (5th Cir. 2005).
Garibaldi-Hernandez was denied cancellation of removal as a
discretionary matter after a balancing of the positive and the negative factors
pertaining to his case. If an alien is denied cancellation relief under § 1229b(a),
we lack jurisdiction to review the ruling. § 1252(a)(2)(B)(i); see Sung v. Keisler,
505 F.3d 372, 377 (5th Cir. 2007).
But we have jurisdiction to review
constitutional claims or questions of law the alien may present when seeking
such relief. § 1252(a)(2)(D); see Sung, 505 F.3d at 377. Thus, we do not have
jurisdiction over the denial of cancellation relief unless Garibaldi-Hernandez
has raised constitutional or other legal questions. See Sung, 505 F.3d at 377.
Questions may not, however, be advanced merely masquerading in legal or
constitutional costume in an attempt to circumvent the statutory bar.
Hadwani v. Gonzales, 445 F.3d 798, 799 (5th Cir. 2006).
The contentions of Garibaldi-Hernandez that the BIA ignored precedent,
particularly with regard to the rehabilitation factor, constitute a challenge to
the balancing of the discretionary factors, i.e., a prohibited challenge in
masquerade. See Hadwani, 445 F.3d at 801. Arguments cast in legal terms
that seek review of discretionary decisions do not create jurisdiction.
Additionally, Garibaldi-Hernandez’s assertions of due process violations are
unavailing. “Eligibility for discretionary relief from a removal order is not a
liberty or property interest warranting due process protection.” Mireles-Valdez
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v. Ashcroft, 349 F.3d 213, 219 (5th Cir. 2003) (internal quotation marks and
citation omitted).
Cancellation of removal is discretionary.
§ 1229b(a).
Moreover, the record shows that Garibaldi-Hernandez received all the process
he was due. See Manzano-Garcia v. Gonzales, 413 F.3d 462, 470 (5th Cir.
2005). Also, Garibaldi-Hernandez’s reliance on Zhao, 404 F.3d at 301-04, is
misplaced; that case interpreted § 1252(a)(2)(B)(ii) and is thus inapposite.
Garibaldi-Hernandez has not made any cogent legal or constitutional
challenge to the BIA’s discretionary decision.
Therefore, we are without
jurisdiction to grant him relief from the denial of his cancellation application.
See § 1252(a)(2)(B)(i), (a)(2)(D).
DISMISSED FOR LACK OF JURISDICTION.
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