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De Cerda v. Gonzales, 05-61193 (2006)

Court: Court of Appeals for the Fifth Circuit Number: 05-61193 Visitors: 16
Filed: Dec. 11, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS F I L E D FOR THE FIFTH CIRCUIT December 11, 2006 Charles R. Fulbruge III No. 05-61193 Clerk Summary Calendar SOFIA HERNANDEZ DE CERDA; LUIS ROLANDO CERDA RAMIREZ, Petitioners, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. - Petition for Review of an Order of the Board of Immigration Appeals BIA No. A96 032 294 - Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* The petitioners, Sofi
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                                                    United States Court of Appeals
                                                             Fifth Circuit
               IN THE UNITED STATES COURT OF APPEALS F I L E D
                       FOR THE FIFTH CIRCUIT
                                                   December 11, 2006

                                                   Charles R. Fulbruge III
                            No. 05-61193                   Clerk
                          Summary Calendar


SOFIA HERNANDEZ DE CERDA; LUIS ROLANDO CERDA RAMIREZ,

                                    Petitioners,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                    Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A96 032 294
                        --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     The petitioners, Sofia Hernandez De Cerda and her husband,

Luis Rolando Cerda Ramirez, seek review of the Board of

Immigration Appeals (BIA) decision denying their application for

the cancellation of removal.   They argue that the BIA erred in

finding that they failed to show 10 years of continuous physical

presence in the United States and in finding that their removal

would not result in extreme hardship to their children and Luis’s

parents.



     *
       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this opinion should not be published and is not precedent except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.
                           No. 05-61193
                                -2-

     Pursuant to 8 U.S.C. § 1229b(b), the Attorney General has

the authority to cancel removal of inadmissible aliens who show,

inter alia, continuous physical presence in the United States for

a period of 10 years and where “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 or an

alien lawfully admitted for permanent residence.”    8 U.S.C.

§ 1229b(b)(A)&(D).   Because cancellation of removal is governed

by § 1229b, the jurisdictional bar of § 1252(a)(2)(B)(i) is

implicated in the instant case.    Section 1252(a)(2)(B)(i),

provides that:

     Notwithstanding any other provision of law, . . . no
     court shall have jurisdiction to review—-

          (i) any judgment regarding the granting of
          relief under section 1182(h), 1182(i), 1229b,
          1229c, or 1255 of this title . . . .

§ 1252(a)(2)(B)(i)(emphasis added).    Because it involved the

exercise of discretion, this court lacks jurisdiction to review

the BIA’s hardship determination.     See Rueda v. Ashcroft, 
380 F.3d 831
, 831 (5th Cir. 2004).    Although review of the BIA’s

finding regarding the lack of continuous physical presence is not

jurisdictionally barred, all four of the requirements of § 1229b

must be satisfied to qualify for the cancellation of removal.

See Berzosa-Flores v. Gonzales, 162 F. App’x 275, 279-80 (5th

Cir. 2005).   We therefore decline to consider the petitioners’

challenge to the BIA’s finding on continuous physical presence.

To the extent that the petitioners present a constitutional due
                          No. 05-61193
                               -3-

process argument, this court retains jurisdiction.     See Balogun

v. Ashcroft, 
270 F.3d 274
, 278 n.11 (5th Cir. 2001).

Nevertheless, as the record reveals that the BIA gave “meaningful

consideration of the relevant substantial evidence” supporting

the petitioners’ claims, the petitioners have made no showing

that the decision to deny their application for cancellation of

removal violated their right to due process.   See Abdel-Masieh v.

INS, 
73 F.3d 579
, 585 (5th Cir. 1996).

     PETITION DISMISSED IN PART; DENIED IN PART.

Source:  CourtListener

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