Santos Tomas Calva v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3393
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SANTOS TOMAS CALVA,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
Agency No. A096-416-041
Immigration Judge: Frederic G. Leeds
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 24, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: July 6, 2009)
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OPINION
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PER CURIAM
Petitioner Santos Tomas Calva, a native and citizen of Ecuador, is removable
under Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. §
1182(a)(6)(A)(i), as an alien present in the United States without being admitted or

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Cancellation of removal under INA § 240A(b)(1) is available to an alien who has1
been physically present in the United States for at least 10 years, has been a person of
good moral character, has not been convicted of a specified criminal offense, and has
established that removal would result in exceptional and extremely unusual hardship to
the alien's spouse, parent, or child, who is a United States citizen or lawful permanent
resident. 8 U.S.C. § 1229b(b)(1)(A)-(D).
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paroled. Calva entered the United States in 1992, married a native and citizen of Brazil,
and the couple have two United States citizen children. The Department of Homeland
Security initiated removal proceedings against him with the filing of a Notice To Appear
on December 13, 2004. Calva applied for cancellation of removal under INA §
240A(b)(1), 8 U.S.C. § 1229b(b)(1), for certain non-permanent residents, and voluntary
departure, contending that his removal would cause an exceptional and extremely unusual
hardship to his U.S. citizen daughters. Most recently, Calva has worked as a commercial
fisherman in New Jersey, earning $96,000 annually. He feared that his daughters would
not be able to adjust to a much lower standard of living. He could not continue his work
as a fisherman in Ecuador because he has never worked on a ship there. In addition, his
wife does not have legal status in Ecuador, and he does not have legal status in Brazil.
Neither of his daughters have ever left the United States.
After taking testimony, the Immigration Judge ruled that Calva met the physical
presence, no specified criminal offense, and good moral character requirements of the
statute. The IJ concluded, however, that Calva could not meet the exceptional and1
extremely unusual hardship requirement. Calva acknowledged that, under the law of

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Ecuador, his wife would be permitted to come with him, and, under the law of Brazil, he
also could obtain lawful status. Moreover, he has siblings who live in Ecuador, and his
father also lives there. The family works in agriculture. Also, it appeared there would be
no separation if Calva is removed, because his wife and daughters would go with him.
The IJ considered the 2004 State Department Country Report for Ecuador and noted that
Ecuador plainly does not offer the same economic opportunities as the U.S., but under
Board precedent, the prospect of a lower standard of living is not extremely unusual and
does not warrant relief. The IJ granted the application for voluntary departure.
Calva appealed to the Board of Immigration Appeals, contending that he is the sole
breadwinner for his family, his income is substantial, and the IJ did not fully consider
Ecuador’s human rights record. On July 9, 2008, the Board dismissed the appeal and
extended the voluntary departure period for an additional 60 days. The Board concluded
that the IJ correctly applied its precedent in finding no exceptional and extremely unusual
hardship to Calva’s qualifying relatives. In distinguishing its decision in Matter of
Recinas, 23 I. & N. Dec. 467, 470 (BIA 2002) (en banc), the Board noted that Calva has
only two children, he has a wife who assists him physically and emotionally in raising the
children, and he has relatives in Ecuador. Furthermore, the IJ did not overlook conditions
in Ecuador.
Calva timely petitioned for review, and moved for an order in this Court staying
the period of voluntary departure, which we granted. In his brief, Calva challenges only

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the determination that he failed to demonstrate that his removal would result in
exceptional and extremely unusual hardship to his United States citizen children. See
Petitioner’s Brief, at 5-12. He contends: “Because of the disparity in earning potential for
Petitioner’s industry of commercial fishing, his wife’s lack of legal status in the United
States, and the emotional hardship to his daughters,” he has met his burden of proof. Id.
at 10. Calva specifically contends that his case is controlled by Matter of Recinas, 23 I. &
N. Dec. 467, in that he is the sole income earner in his house. Id. at 9-10.
We will dismiss the petition for review for lack of subject matter jurisdiction. We
have jurisdiction generally to review final orders of removal pursuant to INA § 242(a), 8
U.S.C. § 1252(a), but section 242(a)(2)(B)(i) of the jurisdictional statute, 8 U.S.C. §
1252(a)(2)(B)(i), divests us of jurisdiction over the Board’s discretionary decisions
regarding cancellation of removal under 8 U.S.C. § 1229b. See Mendez-Moranchel v.
Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). To succeed on an application for
cancellation of removal an alien must establish, among other things, that removal would
result in “exceptional and extremely unusual hardship” to a qualifying relative. We held
in Mendez-Moranchel that this determination is a “quintessential discretionary
judgment.” Id.
Thus, if the Board denied Calva’s application for cancellation of removal based
solely on a discretionary determination that he failed to establish that his removal would
result in "exceptional and extremely unusual hardship" to his U.S. citizen children, see 8

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U.S.C. § 1229b(b)(1)(D), we would lack jurisdiction. See Pinho v. Gonzales, 423 F.3d
193, 203-04 (3d Cir. 2005) (distinguishing between eligibility determinations, which may
involve questions of law, and discretionary denials of relief). Notwithstanding that the
statute precludes judicial review of discretionary decisions, we retain jurisdiction over
constitutional claims and questions of law raised in the context of a petition for review.
See INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). This jurisdictional grant is “narrowly
circumscribed.” Jarbough v. Att’y Gen. of U.S., 483 F.3d 184, 188 (3d Cir. 2007).
We conclude that the Board’s decision in Calva’s case rests solely on an
unreviewable discretionary determination. The IJ, citing Matter of Monreal, 23 I. & N.
Dec. 56 (BIA 2001), noted that, to demonstrate the requisite hardship, an alien must show
that his “qualifying relatives will suffer hardship that is substantially beyond that which
would ordinarily be expected to result from the alien’s removal,” but that Calva need not
establish that the hardship is unconscionable. The IJ then summarized the Board’s
precedential decisions regarding what constitutes exceptional and extremely unusual
hardship. The Board also addressed its precedent, citing Matter of Andazola, 23 I. & N.
Dec. 319 (BIA 2002), as well as Matter of Monreal and Matter of Recinas.
The Board did not engage in an arbitrary application of its precedent. See
Mendez-Castro v. Mukasey, 552 F.3d 975, 979-80 (9th Cir. 2009) (whether agency failed
to apply controlling standard governing discretionary determination is question over
which court of appeals has jurisdiction). Nothing in the Board’s or the IJ’s decisions

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indicate that precedent was misapplied here. The Board pointed out that Calva’s case was
distinguishable from Matter of Recinas, where the alien demonstrated the requisite
hardship to her United States citizen children, because Calva only has two children, and
he has a wife who assists him in raising his children, leaving him free to work. He also
has close relatives in Ecuador. In Matter of Recinas, a single mother of six children with
no spouse or close relatives to rely upon in her native country of Mexico was awarded
cancellation of removal. The Board’s effort to distinguish Calva’s case from Matter of
Recinas on the basis of spousal support, close family support, and number of children is
not “without rational justification or based on a legally erroneous standard.” Mendez v.
Holder, — F.3d — , 2009 WL 1259078, at *5 (2d Cir. 2009) (quoting Barco-Sandoval v.
Gonzales, 516 F.3d 35, 39 (2d Cir. 2008)).
Furthermore, this is not a case in which the evidence, including evidence that
economic opportunities in Ecuador do not match those found in the United States, has
been seriously mischaracterized. Mendez, 2009 WL 1259078, at *6 (“although the IJ
concluded that Petitioner's son, who suffers from Grade II Vesicoureteral Reflux – a
condition that may lead to kidney or liver failure – was “cured or ... certainly in
remission,” the IJ did not address the fact that the son's yearly examinations are highly
specialized and that Petitioner's area of Mexico ... has few doctors – let alone kidney
specialists – and that Petitioner testified that he will not be able to travel to see
specialized doctors or to pay for treatment”). In his brief, Calva merely reiterated his

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hardship argument, but an argument that certain evidence has been discounted, rather than
mischaracterized, does not raise a legal question or constitutional claim over which we
have jurisdiction. See Cospito v. Att’y Gen. of the U.S., 539 F.3d 166, 170 (3d Cir. 2008)
(concluding that such claims “amount to nothing more than ‘quarrels over the exercise of
discretion and the correctness of the factual findings reached by the agency.’”). Stripped
to its essentials, Calva’s challenge to the disposition of his cancellation of removal claim
is based on a disagreement with the balancing and weighing of the evidence presented.
The review he has asked us to engage in is foreclosed by statute.
For the foregoing reasons, we will dismiss the petition for review for lack of
subject matter jurisdiction.

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