NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________ No. 19-3000 _______________ JAVIER HERNANDEZ-MORALES, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA _______________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. 205-829-343) Immigration Judge: John B. Carle _______________ Submitted Under Third Circuit L.A.R. 34.1(a) on July 7, 2020 Before: McKEE, BIBAS, and FUENTES, Circuit Judges (Filed: September 2, 2020) _______________ OPINION* _______________ 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 Because the issues in * This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding precedent. this immigration appeal do not sound in due process, we will dismiss for lack of jurisdic- tion. 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 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 ap- pealed to the Board of Immigration Appeals. The Board dismissed the appeal on the hard- ship ground and did not reach his criminal record. We review the Board’s opinion, as well as the parts of the immigration judge’s opinion adopted by the Board. Neema Patel v. Att’y Gen., 599 F.3d 295, 297 (3d Cir. 2010). We review issues of law and constitutional claims de novo. Dutton-Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017). 2 We lack jurisdiction to review discretionary denials of relief under § 1229b. 8 U.S.C. § 1252(a)(2)(B)(i). And whether hardship is “exceptional and extremely unusual” “is a quintessential discretionary judgment” over which we lack jurisdiction. Mendez-Mo- ranchel v. Ashcroft, 338 F.3d 176, 178–79 (3d Cir. 2003) (quoting § 1229b(b)(1)(D)); ac- cord Seemabahen Patel v. Att’y Gen., 619 F.3d 230, 232 (3d Cir. 2010). We also lack jurisdiction to review the factual findings underlying a denial of § 1229b relief. Dutton- Myrie, 855 F.3d at 515. But we retain jurisdiction over “constitutional claims or questions of law.” § 1252(a)(2)(D). So to get review, Hernandez-Morales asserts two due process violations. Neither is in ...
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