Jovita Mateo-Ventura, a/k/a Jovia Mateo-Ventura, a/k/a Carmen Munez v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1033
___________
JOVITA MATEO-VENTURA,
a/k/a Jovia Mateo-Ventura, a/k/a Carmen Munez,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-436-033)
Immigration Judge: Honorable Frederic G. Leeds
_______________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2010
Before: BARRY, STAPLETON and NYGAARD, Circuit Judges
(Opinion Filed March 23, 2010)
_________
OPINION
_________
PER CURIAM
Jovita Mateo-Ventura petitions for review of the Board of Immigration Appeals’
(“BIA”) final order of removal. We will dismiss her petition in part and deny it in part.

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I.
Mateo (as she refers to herself) is a citizen of Mexico who entered the United
States in 1993. In 2004, the Government charged her as removable for being present
without having been admitted or paroled. Mateo concedes removability, but she applied
for discretionary cancellation of removal under 8 U.S.C. § 1229b. She asserted that her
removal would result in hardship for her two United States citizen children because her
son Ivan suffers from cataracts and Attention Deficit Disorder, and because her children
will either be deprived of her emotional support if they remain with family members in
the United States or will receive inadequate education and financial support if they return
with her to Mexico.
Following a hearing, the Immigration Judge (“IJ”) denied relief. The IJ expressed
sympathy for Mateo’s situation, but concluded that she had not demonstrated that her
removal would “result in exceptional and extremely unusual hardship” to her children as
required by the statute. 8 U.S.C. § 1229b(b)(1)(D). Among other things, the IJ noted that
the family has close relatives both in Mexico and the United States, that her son Ivan’s
medical conditions do not appear particularly serious, and that any financial, emotional
and educational detriment her children might suffer, though regrettable, would not rise to
the level of an “exceptional and extremely unusual hardship.” The BIA agreed and
dismissed Mateo’s appeal. Mateo petitions for review.
II.

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Mateo devotes over ten pages of her brief to discussing non-precedential opinions1
issued by this Court, other Courts of Appeals, and the BIA. We generally do not rely on
our non-precedential opinions, let alone those of other courts. See Jamison v. Klem, 544
F.3d 266, 278 n.11 (3d Cir. 2008); Third Circuit Internal Operating Procedure 5.7. Non-
precedential opinions by the BIA may be relevant if it “reach[ed] an exactly contrary
decision on a materially indistinguishable set of facts,” Shardar v. Att’y Gen., 503 F.3d
308, 315 (3d Cir. 2007), but such is not the case here.
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Although we have jurisdiction to review final orders of removal under 8 U.S.C. §
1252(a)(1), we generally lack jurisdiction under 8 U.S.C. § 1252(a)(2)(B)(i) to review the
discretionary decision of whether an alien has satisfied the hardship requirement for
purposes of 8 U.S.C. § 1229b. See Cospito v. Att’y Gen., 539 F.3d 166, 170 (3d Cir.
2008); Mendez-Reyes v. Ashcroft, 338 F.3d 176, 179 (3d Cir. 2003). We retain
jurisdiction, however, to review “‘constitutional claims or questions of law.’” Cospito,
539 F.3d at 170 (quoting 8 U.S.C. § 1252(a)(2)(D)). We do so de novo, subject to the
principles of deference set forth in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984). See Wu v. Att’y Gen., 571 F.3d 314, 317 (3d Cir.
2009). In this case, Mateo raises two challenges to the BIA’s ruling that she did not
establish the requisite level of hardship. We lack jurisdiction to review the first and the
second lacks merit.1
Mateo first challenges the IJ’s and BIA’s assessment of the record. She frames her
arguments in terms of the BIA’s failure both to review the entire record and to address her
arguments regarding the IJ’s analysis. The BIA, however, expressly considered the
specific factors on which she relies, and her assertion that the BIA failed to address her

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arguments regarding the IJ’s analysis does not state an independent basis for relief
because the BIA issued its own decision and that is the decision we review. See Rranci v.
Att’y Gen., 540 F.3d 165, 171 (3d Cir. 2008).
Mateo’s specific arguments in this regard are that the IJ and BIA erred in failing to
(1) consider the cumulative effect of the hardships faced by her children, (2) give
adequate weight to the testimony of a psychologist who diagnosed her son Ivan with
Attention Deficit Disorder, and (3) adequately consider the effect of her removal on her
children’s health and education. As the Government argues, these claims “do not raise
constitutional claims or questions of law.” Cospito, 539 F.3d at 170 (addressing
arguments that IJ, inter alia, “gave ‘short shrift to crucial evidence’” and “‘simply looked
at individual factors’ rather than provide an evaluation of the factors in the aggregate”)
(citation omitted); see also Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007)
(“[C]ourts have recognized arguments such as that an [IJ] or the BIA incorrectly weighed
evidence, failed to consider evidence or improperly weighed equitable factors are not
questions of law under § 1252(a)(2)(D).”). Instead, these arguments “amount to nothing
more than ‘quarrels over the exercise of discretion and the correctness of the factual
findings reached by the agency.’” Cospito, 539 F.3d at 170 (citation omitted).
Accordingly, we lack jurisdiction to consider these arguments and will dismiss the

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We nevertheless note that, contrary to Mateo’s arguments, both the IJ and BIA2
expressly considered the relevant factors in the aggregate. (BIA Dec. at 2.)
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petition for review to that extent. See id. at 171.2
Mateo also challenges the legal standard that the BIA applied. By way of
background, Mateo was required to demonstrate that her “removal would result in
exceptional and extremely unusual hardship” to her two United States citizen children. 8
U.S.C. § 1229b(b)(1)(D). The BIA has held that this standard requires a hardship that is
“‘substantially’ beyond the ordinary hardship that would be expected when a close family
member leaves this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (BIA
2001). The BIA further explained that, although the hardship need not be
“unconscionable,” the statute reserves cancellation for “‘truly exceptional’ situations[.]”
Id. at 60-62 (citation omitted). The BIA later applied this standard in In re Andazola-
Rivas, 23 I. & N. Dec. 319 (BIA 2002), and In re Recinas, 23 I. & N. Dec. 467 (BIA
2002), finding it satisfied in the latter case but not in the former.
In this case, the IJ and BIA cited all three decisions and expressly applied the
Monreal-Aguinaga standard. The IJ also discussed Recinas at some length because
Mateo argued that her situation was analogous to the situation presented there. The IJ
found Recinas distinguishable and concluded that Mateo had failed to satisfy the
Monreal-Aguinaga standard, and the BIA agreed. Mateo raises three arguments
regarding the standard employed by the BIA. To the extent that these arguments can be

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Mateo’s argument that the standard is so restrictive that “most” immigrants cannot3
satisfy it provides no reason to question whether the BIA’s interpretation of the statute is
permissible. The statute requires an “exceptional and extremely unusual hardship,” 8
U.S.C. § 1229b(b)(1)(D), which by definition will not be satisfied by “most” immigrants.
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construed to raise constitutional claims or questions of law, they lack merit.
First, Mateo argues that Recinas sets so high a standard that “most” immigrants
cannot meet it, that in applying the standard the BIA thus “acted contrary to explicit
Congressional intent and violated her due process rights,” and that this matter should be
remanded for the BIA to apply an unspecified but “more realistic” standard. Recinas,
however, did not establish a legal standard at all. Instead, it merely applied the Monreal-
Aguinaga standard to a specific set of facts. See Barco-Sandoval v. Gonzales, 516 F.3d
35, 40 (2d Cir. 2008) (“Recinas is so obviously an application of Monreal-Aguinaga” that
petitioner’s argument that it established a new standard “does not even reach the level of
being colorable.”).
Mateo has not developed any challenge to that standard. She asserts that it is
contrary to “Congressional intent,” but she cites no authority and does not argue that the
BIA’s interpretation of the cancellation statute is impermissible under Chevron. She also3
asserts that the standard violates due process, but she again cites no authority and does not
argue due process principles. See Jarbough, 483 F.3d at 190 (rejecting purported due
process claim where petitioner made “no attempt to tie his claim . . . to the Due Process
Clause” or its “requirements of notice and a meaningful opportunity to be heard”).

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Second, Mateo argues that the BIA effectively applied the “unconscionability”
standard it rejected in Monreal-Aguinaga. The IJ, however, expressly stated that
“respondent need not establish the hardship is unconscionable,” (IJ Dec. at 4), and the
BIA expressly applied Monreal-Aguinaga in affirming that ruling. Cf. Figueroa v.
Mukasey, 543 F.3d 487, 491, 496 (9th Cir. 2008) (remanding where IJ erred in expressly
requiring a showing of “unconscionable” hardship).
Finally, Mateo appears to argue that the BIA should have applied the reasoning of
the dissenting opinions in Andazola-Rivas. Suffice it to say that the BIA was not required
to do so. Accordingly, we will dismiss in part and deny in part the petition for review.

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