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Hernandez-Morales v. AG United States

Hernandez-Morales v. AG United States

United States Court of Appeals for the Third Circuit

July 7, 2020, Submitted Under Third Circuit L.A.R. 34.1(a); September 2, 2020, Filed

No. 19-3000

Opinion

 [*248]  OPINION1

BIBAS, Circuit Judge.

Litigants often dress up factual findings and discretionary decisions as constitutional violations. But calling an issue constitutional does not make it so. Because the issues in this immigration appeal do not sound in due process, we will dismiss for lack of jurisdiction.

Javier Hernandez-Morales is a native and citizen of Mexico. He entered the United States illegally in 1995. He and his wife are separated, but they share custody of their two daughters, who are U.S. citizens. During the week, the daughters live with their father, who rented an apartment in a well-regarded school district so they could go to school there. He has had a successful career as a chef, working at the [**2]  same restaurant for fifteen years and rising to become a supervisor. But his record is checkered, as he was convicted of simple assault on his wife and of driving under the influence.

After his assault conviction, the Government began proceedings to remove Hernandez-Morales. He conceded removability but sought cancellation of removal. 8 U.S.C. § 1229b. The immigration judge denied his application, finding that he was ineligible because his removal would not cause his daughters "exceptional and extremely unusual hardship." § 1229b(b)(1)(D). Even if he were eligible, the judge held, Hernandez-Morales would not merit cancellation of removal because of his criminal convictions. Hernandez-Morales appealed to the Board of Immigration Appeals. The Board dismissed the appeal on the hardship ground and did not reach his criminal record.

 [*249]  ] We review the Board's opinion, as well as the parts of the immigration judge's opinion adopted by the Board. Patel v. AG of the United States, 599 F.3d 295, 297 (3d Cir. 2010). We review issues of law and constitutional claims de novo. Myrie v. AG United States, 855 F.3d 509, 515 (3d Cir. 2017).

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977 F.3d 247 *; 2020 U.S. App. LEXIS 27936 **; 2020 WL 5230561

JAVIER HERNANDEZ-MORALES, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA

Prior History:  [**1] On Petition for Review of an Order of the Board of Immigration Appeals. (Agency No. 205-829-343). Immigration Judge: John B. Carle.

Hernandez-Morales v. AG United States, 819 Fed. Appx. 93, 2020 U.S. App. LEXIS 37381 (3d Cir., Sept. 2, 2020)

CORE TERMS

hardship, constitutional claim, lack jurisdiction, daughters, removal, argues, factual findings, immigration, weighing, factors, discretionary judgment, criminal conviction, immigration appeals, extremely unusual, immigration judge, denial of relief, moral character, question of law, due process, de novo, discretionary, cancellation, violations, assault, raises, dress

Immigration Law, Judicial Review, Standards of Review, De Novo Standard of Review, Deportation & Removal, Judicial Review, Judicial Proceedings, Scope of Review, Relief From Deportation & Removal, Cancellation of Removal, Jurisdiction, Discretionary Actions, Administrative Proceedings, Civil Procedure, Appeals, Questions of Fact & Law