Victor Hugo Cisneros Negrete; Rocio Herminia Gutierrez- Garcia v. ERIC H. HOLDER, JR., Attorney No. 08-15543 General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 VICTOR HUGO CISNEROS NEGRETE;
ROCIO HERMINIA GUTIERREZ-
GARCIA,
Petitioners-Appellants,
v.
ERIC H. HOLDER, JR., Attorney No. 08-15543 General; JANET NAPOLITANO*,
Secretary of Homeland Security; D.C. No.
NANCY ALCANTAR, Field Office 2:06-CV-02713- 
Director, San Francisco California MCE-GGH
District Office of the U.S. OPINION
Immigration and Customs
Enforcement; JEFF TIPTON, Special
Officer in Charge of the
Sacramento, California sub-office
of the U.S. Immigration and
Customs Enforcement,
Respondents-Appellees. 
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted March 9, 2009**
San Francisco, California
Filed May 12, 2009
*Janet Napolitano has been substituted for her predecessor, Michael
Chertoff, as Secretary of Homeland Security. See Fed. R. App. P. 43(c)(2).
**The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
5735

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Before: M. Margaret McKeown and Sandra S. Ikuta, Circuit
Judges, and Frederic Block,*** District Judge.
Per Curiam Opinion
***The Honorable Frederic Block, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
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COUNSEL
Steven P. Brazelton, Reno, Nevada for the petitioners.
Audrey B. Hemesath, Assistant United States Attorney, Sac-
ramento, California, for the respondent.
OPINION
PER CURIAM:
Victor Hugo Cisneros Negrete and Rocio Herminia Gutier-
rez Garcia (“the Cisneroses”) appeal from the district court’s
dismissal for lack of jurisdiction of their habeas petition chal-
lenging the Board of Immigration Appeals’ (“BIA”) denial of
their motion to reopen their immigration proceedings. Both
petitioners are Mexican citizens who entered the United States
without inspection in 1989 and have lived here since. Their
youngest child, Herbert, was born in the United States and is
therefore a United States citizen. In removal proceedings, the
Cisneroses applied for cancellation of removal under the
Immigration and Nationality Act, 8 U.S.C. § 1229b(1)(D),
arguing that removal would result in exceptional and
extremely unusual hardship to Herbert. The Immigration
Judge (“IJ”) rejected this claim. The BIA affirmed the IJ’s
decision.
After the BIA’s decision, Herbert was diagnosed with
Attention Deficit Hyperactivity Disorder (“ADHD”). The Cis-
neroses moved to reopen their case before the BIA, citing In
re Monreal, 23 I&N Dec. 56, 63 (BIA 2001), which held that
a citizen child with “compelling needs in school” met the
exceptional and extremely unusual hardship standard justify-
ing cancellation of removal. The BIA denied the motion, rul-
ing that the Cisneroses had not shown new evidence that
established a prima facie case of exceptional and extremely
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unusual hardship because they did not show that Herbert’s
ADHD was “so severe that it would cause significant prob-
lems at home or at school” or that treatment for ADHD was
unavailable in Mexico.
The Cisneroses then filed a habeas petition in district court,
claiming that the BIA violated their due process rights by fail-
ing to follow its own precedent in rejecting their claim. They
argued that because the court of appeals lacks jurisdiction
over direct appeals of denials of motions to reopen under Fer-
nandez v. Gonzales, 439 F.3d 592, 603-04 (9th Cir. 2006), the
Suspension Clause dictates that the district court must have
habeas jurisdiction over their claims despite the jurisdiction
stripping provisions of the REAL ID Act, 8 U.S.C.
§ 1252(a)(2)(B)(i). This argument misreads our precedent.
[1] In Fernandez we held that we lack jurisdiction over
claims that the BIA abused its discretion in denying motions
to reopen cancellation of removal proceedings based on hard-
ship. 439 F.3d at 600. “[W]here the question presented [by a
motion to reopen or reconsider] is essentially the same discre-
tionary issue originally decided” by the BIA, we cannot
review the decision because 8 U.S.C. § 1252(a)(2)(B)(i) bars
jurisdiction. Id. A BIA ruling denying a motion to reopen
because there is no prima facie case for relief under the hard-
ship exception is such an instance of discretion. Id.1
[2] In Fernandez, however, we reached the merits of due
process claims stemming from the same discretionary denial.
Id. at 603-04. To the extent the Cisneroses had colorable con-
stitutional claims, we would have jurisdiction to adjudicate
them under Fernandez. Id.2 Because direct appeal was avail-
1Significantly, we do have jurisdiction to review cases “[w]here the
relief sought is formally the same as was previously denied but the evi-
dence submitted with a motion to reopen is directed at a different basis for
providing the same relief, [because] the circumstances can take the matter
out of the realm of § 1252(a)(2)(b)(i).” Id. at 601.
2Although the Cisneroses’ counsel argued before this court that Fernan-
dez precluded federal appellate jurisdiction over their constitutional
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able in this court, no Suspension Clause problem arises from
the district court’s lack of jurisdiction under the REAL ID
Act. See Puri v. Gonzales, 464 F.3d 1038, 1042
(9th Cir. 2006) (holding that there is no right to habeas review
of administrative evidentiary determinations before a district
court where direct review of the administrative proceedings is
available in the appellate courts). The Suspension Clause does
not require habeas review; rather it requires that an adequate
and effective “collateral remedy” be available to a petitioner.
See id. at 1041-42 (citing Swain v. Pressley, 430 U.S. 372,
381 (1977)). Where a “substitute remedy provides the same
scope of review as a habeas remedy, it is adequate and effec-
tive” for constitutional purposes. Puri, 464 F.3d at 1042 (cit-
ing INS v. St. Cyr, 533 U.S. 289, 314 n.38 (2001)). A direct
appeal for constitutional claims is such an “adequate and
effective” remedy. Puri, 464 F.3d at 1042.
[3] Although we have jurisdiction over colorable constitu-
tional claims relating to discretionary denials of motions to
reopen, we lack jurisdiction if the due process claim is merely
an abuse of discretion claim re-packaged as a constitutional
claim. Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th
Cir. 2005). A “petitioner may not create the jurisdiction that
Congress chose to remove simply by cloaking an abuse of dis-
cretion argument in constitutional garb.” Torres-Aguilar v.
INS, 246 F.3d 1267, 1271 (9th Cir. 2001); accord Mendez-
Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009). The
fact that neither this court nor the district court has jurisdic-
tion to hear such discretionary claims does not present a Sus-
pension Clause problem because review of discretionary
determinations was not traditionally available in habeas pro-
ceedings. Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir.
2007).
claims, he acknowledged in the district court that he had simply misread
Fernandez and conceded that this court was the proper place to raise the
due process claim.
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The Cisneroses also argue that because Fernandez is in
conflict with Ramadan, and because they filed their habeas
petition during the time period between the two decisions, we
should equitably toll the filing period to allow them to file a
direct appeal in this court. This argument is unavailing
because Ramadan is not in tension with Fernandez. Ramadan
did not change the legal landscape as to either constitutional
claims (which could already be filed in this court under Fer-
nandez) or as to non-constitutional challenges to the BIA’s
discretionary denials of motions to reopen (which still cannot
be appealed to our court after Ramadan). See Ramadan, 479
F.3d at 654 (holding that the REAL ID Act “does not restore
jurisdiction over discretionary determinations”); see also
Mendez-Castro, 552 F.3d at 980-81 (holding that Ramadan is
inapplicable to the “ ‘exceptional and extremely unusual hard-
ship’ standard” because it is “subjective” unlike the
“ ‘changed circumstances’ standard” at issue in Ramadan).
AFFIRMED.
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