F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 28 2005
                               FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DAVID ADOLFO HERNANDEZ-
    NAVARRO; ARACELI AVENDANO
    FLORES; LUIS RICARDO
    HERNANDEZ,
                                                         No. 04-9613
                Petitioners,                       (BIA Nos. A70-914-415,
                                                 A70-910-678, A70-910-679)
    v.                                               (Petition for Review)

    JOHN ASHCROFT,

                Respondent.


                               ORDER AND JUDGMENT *


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      We have for consideration the government’s motion to dismiss the petition

for review for lack of jurisdiction, and petitioners’ response. We agree that we

lack jurisdiction over the petition for review.

      Petitioners are natives and citizens of Mexico who face removal from this

country for having unlawfully entered the United States. They were noticed to

appear for removal proceedings in 2002. They all sought and were denied

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

      Because petitioners were noticed to appear after April 1, 1997, this case is

governed by the permanent rules of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.

3009 (Sept. 30, 1996). Under IIRIRA’s permanent rules, we ordinarily lack

jurisdiction to review the denial of cancellation of removal, because it is a

discretionary form of relief. Morales Ventura v. Ashcroft, 

,

1261-62 (10th Cir. 2003) (discussing 8 U.S.C. § 1252(a)(2)(B)(i)). We left open

in Morales Ventura whether there might be circumstances in which we have

jurisdiction to consider a “substantial constitutional issue.” 

      Petitioners argue that the time limitations relevant to the “continuous

physical presence” requirement for cancellation of removal are both arbitrary and

less lenient toward illegal aliens than before IIRIRA was passed. See 8 U.S.C.

§ 1229b(d)(2). We are unpersuaded, however, that petitioners’ challenge to the


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expressed will of Congress in § 1229b(d)(2) presents a substantial constitutional

claim. As a result, we lack jurisdiction over petitioners’ petition for review.

      The government’s motion to dismiss is granted, and the petition for review

is DISMISSED.



                                       ENTERED FOR THE COURT

                                       PER CURIAM




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