Hernandez-Morales v. Attorney General United States, No. 19-3000 (3d Cir. 2020)

Hernandez-Morales, a citizen of Mexico, entered the U.S. illegally in 1995. He shares custody of his daughters, who are U.S. citizens. During the week, the daughters live with their father in a well-regarded school district. He has a successful career as a chef, working at the same restaurant for 15 years. Hernandez-Morales was convicted of simple assault on his wife and of driving under the influence. Hernandez-Morales unsuccessfully sought cancellation of removal, 8 U.S.C.1229b; the IJ found his removal would not cause his daughters “exceptional and extremely unusual hardship” and he would not merit relief because of his criminal convictions. The BIA dismissed the "hardship" appeal and did not reach his criminal record.

The Third Circuit dismissed an appeal, reasoning that it lacks jurisdiction to review discretionary denials of relief under section 1229b and whether hardship is “exceptional and extremely unusual” “is a "quintessential discretionary judgment.” While the court retains jurisdiction over constitutional claims or questions of law, Hernandez-Morales did not assert a constitutional claim but only challenged the IJ’s finding that his wife could take over his lease and keep their daughters in their current school and weighing of his moral character. “A party may not dress up a claim with legal clothing to invoke” jurisdiction.