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

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Justia Opinion Summary

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.

This opinion or order relates to an opinion or order originally issued on September 2, 2020.

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September 25, 2020 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT C.A. No. 19-3000 JAVIER HERNANDEZ-MORALES, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent (B.I.A. No. A205-829-343) Present: McKEE, BIBAS, and FUENTES, Circuit Judges Submitted are (1) Respondent’s motion to publish the opinion [Dkt. No. 70]; and (2) Petitioner’s response to Respondent’s motion to publish the opinion [Dkt. No. 71] in the above-captioned case. Respectfully, Clerk ________________________________ORDER_________________________________ The foregoing motion is granted. By the Court, s/Stephanos Bibas Circuit Judge Dated: October 1, 2020 CLW/cc: Alfonso Caprara, Esq. Vanessa M. Otero, Esq. Ilana J. Snyder, Esq.
Primary Holding
Third Circuit declines to review a denial of cancellation of removal where the alien asserted “exceptional and extremely unusual hardship” to his daughters.

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