United States Court of Appeals For the Eighth Circuit ___________________________ No. 18-2601 No. 18-3202 ___________________________ Carlos Enrique Urrutia Robles lllllllllllllllllllllPetitioner v. William P. Barr, Attorney General of the United States lllllllllllllllllllllRespondent ___________________________ Petition for Review of Orders of the Board of Immigration Appeals ____________ Submitted: June 11, 2019 Filed: October 8, 2019 ____________ Before LOKEN, KELLY, and ERICKSON, Circuit Judges. ____________ LOKEN, Circuit Judge. The Department of Homeland Security (“DHS”) placed Carlos Enrique Urrutia Robles, a native and citizen of Mexico, in removal proceedings following his arrest for injuring a pedestrian while driving under the influence. Urrutia conceded removability and applied for cancellation of removal. See 8 U.S.C. § 1229b. The Immigration Judge (“IJ”) granted relief, and DHS appealed. Reviewing the IJ’s discretionary determination de novo, the Board of Immigration Appeals (“BIA”) denied cancellation, ordered Urrutia removed to Mexico, and subsequently denied his timely motion to reopen proceedings. Urrutia petitions for review of both BIA orders. We deny the petitions for review. The Attorney General may grant discretionary cancellation of removal to a non- permanent resident if he has been continuously present in this country for ten years; has been a person of good moral character; has not been convicted of enumerated criminal offenses; and shows that his removal “would result in exceptional and extremely unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1). Congress has limited our jurisdiction to review the Attorney General’s exercise of this discretionary authority, § 1252(a)(2)(B)(i), but we may review “constitutional claims or questions of law,” § 1252(a)(2)(D). We lack jurisdiction if the petitioner seeking review has “attempted to create jurisdiction by cloaking an abuse of discretion argument in constitutional or legal garb.” Hernandez-Garcia v. Holder, 765 F.3d 815, 816 (8th Cir. 2014) (quotation omitted). After a removal hearing, the IJ found that Urrutia satisfied the four eligibility requirements of § 1229b(b)(1). Turning to whether the attorney general’s discretion should be exercised, the IJ noted that Urrutia has “significant negative factors,” including two DUI convictions in 1996 and 2004, “continued issues with alcohol,” and a pending DUI charge after he struck a pedestrian who suffered “significant traumatic brain injury.” However, the IJ concluded that these negative factors were outweighed by positive factors, including that Urrutia “appears committed to resolving his problems with alcohol,” and granted Urrutia § 1229b relief. DHS appealed to the BIA, arguing the IJ “erred by granting [Urrutia’s] application for cancellation of removal as a matter of discretion.” The BIA sustained the DHS appeal. After correctly stating the applicable standard of review, the BIA discussed in detail the positive and negative factors relevant to whether Urrutia -2- warranted exercise of the Attorney General’s discretion. Reviewing the IJ’s exercise of discretion de novo, the BIA concluded that Urrutia’s “repeated incidents of driving under the influence of alcohol and his lack of rehabilitation are simply too serious to warrant relief in the exercise of discretion.” Urrutia filed a timely motion to reopen the proceedings, submitting new evidence that he completed alcohol rehabilitation programs ...
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