Aurora Lopez v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1596
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AURORA LOPEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A073-048-909)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed March 24, 2010 )
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OPINION
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PER CURIAM
Aurora Lopez, a citizen of Guatemala, petitions for review of a Board of
Immigration Appeals (“BIA”) order denying her application for cancellation of removal.
The Government has filed a motion to dismiss the petition for lack of jurisdiction.

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I
Lopez was charged as removable and appeared before the Immigration Judge
(“IJ”) in 2007. She admitted to three of the four charges against her and conceded
removability, but sought cancellation of removal under INA § 240A(b), 8 U.S.C.
§ 1229b(b) (2006). As grounds for relief, Lopez testified that her removal to Guatemala
would create an exceptional and extremely unusual hardship on her son, Onar, an
American citizen who was 20 years old at the time of the removal hearing.
The IJ denied relief, reasoning that, although Lopez satisfied the other
requirements for cancellation of removal, she failed to demonstrate that her removal
would impose an exceptional and extremely unusual hardship on her son. The BIA
agreed and dismissed Lopez’s appeal. Lopez then filed a petition for review, which
prompted the Government’s motion to dismiss.
II
Pursuant to the REAL ID Act of 2005, courts lack jurisdiction to review the denial
of discretionary relief, including cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B).
Whether the United States citizen child of an alien will suffer “exceptional and extremely
unusual hardship,” as required for cancellation of removal, is precisely such a
discretionary determination. See INA § 240A(b)(1)(D); Mendez-Moranchel v. Ashcroft,
338 F.3d 176, 179 (3d Cir. 2003). Accordingly, we lack jurisdiction to review the
Agency’s decision that Lopez failed to demonstrate exceptional and extremely unusual

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hardship.
Nevertheless, we retain jurisdiction to review constitutional claims and questions
of law raised in a petition for review. See § 1252(a)(2)(D). In her counseled petition for
review, Lopez raises three arguments to avoid the jurisdictional bar. The Government
counters that we lack jurisdiction because Lopez’s purported questions of law are not
colorable and she instead essentially takes issue with the IJ’s and BIA’s exercise of
discretion. For the reasons discussed below, we agree with the Government and will
dismiss the petition for review on that basis.
First, Lopez contends that the IJ misapplied the standard for determining whether
she demonstrated an exceptional and extremely unusual hardship. In making that
determination, an IJ must consider hardship factors in the aggregate. See Matter of
Monreal-Aguinaga, 23 I&N Dec. 56, 63-64 (BIA 2001) (discussing the factors the
Agency should consider in assessing an exceptional and extremely unusual hardship).
Lopez contends that the IJ failed to consider the aggregate factors in her case, but instead
focused on the fact that Onar’s father, who lives near him in New Jersey, could provide
him with support. Lopez’s argument lacks merit. Both the IJ and BIA expressly
considered a range of factors – including Onar’s age, education, ability to work, and
support from other relatives, including his father, who lived nearby – in determining that
the requisite hardship had not been demonstrated.
Second, Lopez argues that, in denying relief, the BIA improperly considered that

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her son “aged out” during the pendency of her appeal, as he turned 21 during that time.
Her argument is vague and somewhat confusing, as she seems to use “aged out” in an
inapt context. At most, we can read her use of the term “aged out” to suggest that the
Board wrongly determined that her son was not a qualifying relative because cancellation
applications may not be based on hardship to United States citizen children aged 21 or
older. See 8 U.S.C. § 1101(b)(1) (defining a child as an unmarried person under 21 for
purposes of the INA); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1144-45 (9th Cir.
2002) (holding that a person 21 years of age or older is not a “child,” for purposes of
cancellation of removal). In its opinion, the BIA simply noted that Onar “was 20 years of
age at the time of the hearing below and turned 21 during the course of this appeal.” A.R.
2. We agree with the Government that this passing reference to Onar’s age provides no
basis to conclude that the Board denied relief on that basis.
Finally, Lopez argues that the BIA violated her constitutional right to due process
by failing to adhere to Board precedent, instead “interpret[ing] the law in any willy nilly
way it wants.” Brief for the Petitioner, 6. However, Lopez fails to provide any useful
elaboration on this claim. See id. at 5-6. In concluding that Lopez failed to demonstrate
an exceptional or extremely unusual hardship, the BIA cited two precedential opinions –
Matter of Monreal-Aguinaga, and Matter of Andazola-Rivas, 23 I&N Dec. 319 (BIA
2002) – both of which discuss the standard for demonstrating such a hardship. There is
plainly nothing improper about the Board’s reliance on these cases, and nothing in the

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record supports Lopez’s vague contention that the BIA ran afoul of the legal standards set
forth in those cases – or any other controlling law – in denying her request for
cancellation of removal.
Accordingly, we will dismiss the petition for review.

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