Mota-Hernandez v. Atty Gen USA , 110 F. App'x 235 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-30-2004
Mota-Hernandez v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3226
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Mota-Hernandez v. Atty Gen USA" (2004). 2004 Decisions. Paper 304.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/304
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-3226
____________
REYNA MOTA-HERNANDEZ,
Appellant
v.
JOHN ASHCROFT, In His
Capacity as Attorney
General, USA
____________
Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 03-cv-03459
District Judge: Honorable Ronald J. Buckwalter
____________
Submitted Under Third Circuit LAR 34.1(a)
September 21, 2004
Before: MCKEE, ROSENN, and WEIS, Circuit Judges
(Filed: September 30, 2004)
___________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
Reyna Mota-Hernandez (“Mota-Hernandez”) timely appeals the order of the District
Court denying her Petition for a writ of habeas corpus under 28 U.S.C. § 2241. Mota-
Hernandez asserts that 8 U.S.C. § 1252(a)(2)(B) unconstitutionally removes judicial review
of discretionary decisions made by the Board of Immigration Appeals (“BIA”), and thus
denies due process. The District Court held that there was no basis for declaring §
1252(a)(2)(B) unconstitutional, and that it lacked jurisdiction to review the BIA’s denial of
her application for cancellation of removal. We affirm.
Mota-Hernandez entered this country illegally, either in 1982 or 1989, from Mexico.
In 1997, the Immigration and Naturalization Service charged her with removability. Mota-
Hernandez conceded removability, but sought cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b)(1), which allows the Attorney General to cancel removal if the applicant: “(A)
has been physically present in the United States for a continuous period of not less than 10
years immediately preceding the date of such application; (B) has been a person of good
moral character during such period; (C) has not been convicted of” certain offenses; “and (D)
establishes that 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 . . . .” 8 U.S.C. §
1229b(b)(1).
At a hearing before a careful, patient, and sensitive Immigration Judge (“IJ”), Mota-
Hernandez testified that three of her four children were born in the United States, that she has
held various full-time jobs since arriving in the United States, has paid income taxes, and has
never been convicted of an offense. She lives in Reading, Pennsylvania, with her children
and the father of three of her children. Mota-Hernandez also testified that her son is
2
asthmatic, and that she would not be able to provide him with medication should she be
removed to Mexico.
Although the IJ recognized the pathos in Petitioner’s case, he concluded that none of
Mota-Hernandez’s children suffered from a serious illness, and that they would be able to
adjust to life in Mexico. Thus, the IJ held that Mota-Hernandez failed to show that her
children would suffer “exceptional and extremely unusual hardship” if she was removed to
Mexico, and denied her application for cancellation of removal. In a written per curiam
order, the BIA affirmed the IJ’s decision. Mota-Hernandez appealed the BIA’s order to this
Court, which held that it lacked jurisdiction to review the BIA’s discretionary decision, and
accordingly affirmed the BIA’s order.
In this § 2241 proceeding, Mota-Hernandez argues, in essence, that the BIA reached
the wrong determination on hardship. The BIA’s determination that Mota-Hernandez’s
children will not suffer “an exceptional and extremely unusual hardship” is a discretionary
decision which, under 8 U.S.C. § 1252(a)(2)(B), this Court is without jurisdiction to review.
Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). Further, as this Court has
recently held, the scope of § 2241 habeas review in the immigration context is “confined to
questions of constitutional and statutory law,” and excludes review of discretionary
determinations. Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir. 2004).
To the extent that Mota-Hernandez’s Petition can be read as asserting a due process
claim, it asserts no basis for holding that the Constitution requires judicial review of the
3
BIA’s discretionary decisions.
The order of the District Court will be affirmed. Each side to bear its own costs.
4