Elaine Dorjo Andrade; Elson Pio v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2794
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ELAINE DORJO ANDRADE; ELSON PIO,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(Agency Nos. A95-171-577 & A95-171-578)
Immigration Judge: Honorable Annie S. Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 29, 2009
Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges
(Filed: August 4, 2009)
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OPINION OF THE COURT
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PER CURIAM
Elaine Andrade and her husband, Elson Pio, petition for review of the Board of
Immigration Appeals’ (“BIA”) final order of removal in their consolidated removal

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proceeding. For the reasons that follow, we will dismiss the petition in part and deny it in
part.
I.
Because we write primarily for the parties, we discuss the facts and procedural
history only to the extent needed to resolve this petition. Andrade and Pio, natives and
citizens of Brazil, entered the United States on B-2 visitor-for-pleasure visas in 1993.
They remained in the United States beyond the period of time allowed under their visas,
and were ultimately placed in removal proceedings in 2004. Both Andrade and Pio
subsequently applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1).
In October 2006, after a hearing on the merits, the Immigration Judge (“IJ”) denied
the couple’s applications, concluding that they failed to show that their removal to Brazil
would result in “exceptional and extremely unusual hardship” to their then-eleven-year-
old son, a United States citizen, as required by § 1229b(b)(1)(D). On appeal, the BIA
agreed with this conclusion. The BIA rejected the couple’s argument that the IJ’s
hardship analysis failed to consider the impact of their removal on their son’s continued
ability to practice his religion as a member of the Salvation Army. In doing so, the BIA
“note[d] as did the Immigration Judge that the Salvation Army operates in Brazil,” and
found “no basis to concluded [sic] that the [couple’s] son cannot continue to practice his
faith in Brazil.” Andrade and Pio now petition this Court to review the BIA’s decision.

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Andrade and Pio also argue that the IJ violated their due process rights by failing1
to consider all of the hardship factors. Yet because the BIA issued its own decision, we
review its decision rather than the IJ’s decision. See Wong v. Att’y Gen. of the U.S., 539
F.3d 225, 230 (3d Cir. 2008). Even if we were to reach this claim, it would fail on the
merits.
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II.
Pursuant to 8 U.S.C. § 1252(a)(1), we generally have jurisdiction to review final
orders of removal. Section 1252(a)(2)(B), however, divests us of jurisdiction over denials
of discretionary relief, and we have held that the “[t]he determination of whether the alien
has established the requisite hardship [required to obtain cancellation of removal] is a
quintessential discretionary judgment.” Mendez-Moranchel v. Ashcroft, 338 F.3d 176,
179 (3d Cir. 2003). Yet this limitation on our jurisdiction does not bar our review of
constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
Andrade and Pio argue that the BIA deprived them of due process and violated its
own precedent by failing to consider all of the hardship factors. Specifically, they1
contend that the BIA did not consider the impact of their removal to Brazil on their son’s
ability to practice his faith as a member of the Salvation Army. To the extent this
argument attempts to challenge the BIA’s discretionary determination that Andrade and
Pio failed to establish an “exceptional and extremely unusual hardship,” we lack
jurisdiction to review such a claim. See Mendez-Moranchel, 338 F.3d at 179. Although
we do have jurisdiction over the couple’s claims that the BIA ignored its precedent and
violated their due process rights, these claims lack merit. The BIA clearly considered

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their son’s ability to practice his faith in Brazil, stating that the Salvation Army operates
there and that there was “no basis” to conclude that he “cannot continue to practice his
faith in Brazil.”
Accordingly, Andrade’s and Pio’s petition for review will be dismissed in part and
denied in part.

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