PRECEDENTIAL
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`_______________
`
`No. 19-3000
`_______________
`
`JAVIER HERNANDEZ-MORALES,
`
`
`Petitioner
`
`v.
`
`ATTORNEY GENERAL
`UNITED STATES OF AMERICA
`_______________
`
`On Petition for Review of an
`Order of the Board of Immigration Appeals
`(Agency No. 205-829-343)
`Immigration Judge: John B. Carle
`_______________
`
`Submitted Under Third Circuit L.A.R. 34.1(a)
`on July 7, 2020
`
`Before: McKEE, BIBAS, and FUENTES, Circuit Judges
`
`(Filed: September 2, 2020)
`_________________
`
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
`_______________
`
`No. 19-3000
`_______________
`
`JAVIER HERNANDEZ-MORALES,
`
`
`Petitioner
`
`v.
`
`ATTORNEY GENERAL
`UNITED STATES OF AMERICA
`_______________
`
`On Petition for Review of an
`Order of the Board of Immigration Appeals
`(Agency No. 205-829-343)
`Immigration Judge: John B. Carle
`_______________
`
`Submitted Under Third Circuit L.A.R. 34.1(a)
`on July 7, 2020
`
`Before: McKEE, BIBAS, and FUENTES, Circuit Judges
`
`(Filed: September 2, 2020)
`_________________
`
`
`
`
`
`Alfonso Caprara
`Suite 300
`2043 Locust Street
`Philadelphia, PA 19103
`Counsel for Petitioner
`
`
`William P. Barr
`Vanessa M. Otero
`Ilana J. Snyder
`United States Department of Justice
`Office of Immigration Litigation
`P.O. Box 878
`Ben Franklin Station
`Washington, DC 20044
`Counsel for Respondent
`
`
`_________________
`
`OPINION OF THE COURT
`_________________
`
`BIBAS, Circuit Judge.
`Litigants often dress up factual findings and discretionary
`decisions as constitutional violations. But calling an issue con-
`stitutional does not make it so. Because the issues in this im-
`migration appeal do not sound in due process, we will dismiss
`for lack of jurisdiction.
`Javier Hernandez-Morales is a native and citizen of Mex-
`ico. He entered the United States illegally in 1995. He and his
`wife are separated, but they share custody of their two daugh-
`ters, who are U.S. citizens. During the week, the daughters live
`
`
`
`2
`
`
`
`with their father, who rented an apartment in a well-regarded
`school district so they could go to school there. He has had a
`successful career as a chef, working at the same restaurant for
`fifteen years and rising to become a supervisor. But his record
`is checkered, as he was convicted of simple assault on his wife
`and of driving under the influence.
`After his assault conviction, the Government began pro-
`ceedings to remove Hernandez-Morales. He conceded remov-
`ability but sought cancellation of removal. 8 U.S.C. § 1229b.
`The immigration judge denied his application, finding that he
`was ineligible because his removal would not cause his daugh-
`ters
`“exceptional
`and
`extremely unusual hardship.”
`§ 1229b(b)(1)(D). Even if he were eligible, the judge held, Her-
`nandez-Morales would not merit cancellation of removal be-
`cause of his criminal convictions. Hernandez-Morales ap-
`pealed to the Board of Immigration Appeals. The Board dis-
`missed the appeal on the hardship ground and did not reach his
`criminal record.
`We review the Board’s opinion, as well as the parts of the
`immigration judge’s opinion adopted by the Board. Neema Pa-
`tel v. Att’y Gen., 599 F.3d 295, 297 (3d Cir. 2010). We review
`issues of law and constitutional claims de novo. Dutton-Myrie
`v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017).
`We lack jurisdiction to review discretionary denials of re-
`lief under § 1229b. 8 U.S.C. § 1252(a)(2)(B)(i). And whether
`hardship is “exceptional and extremely unusual” “is a quintes-
`sential discretionary judgment” over which we lack jurisdic-
`tion. Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 178–79 (3d
`Cir. 2003) (quoting § 1229b(b)(1)(D)); accord Seemabahen
`
`
`
`3
`
`
`
`Patel v. Att’y Gen., 619 F.3d 230, 232 (3d Cir. 2010). We also
`lack jurisdiction to review the factual findings underlying a de-
`nial of § 1229b relief. Dutton-Myrie, 855 F.3d at 515. But we
`retain jurisdiction over “constitutional claims or questions of
`law.” § 1252(a)(2)(D). So to get review, Hernandez-Morales
`asserts two due process violations. Neither is in fact a consti-
`tutional claim.
`First, Hernandez-Morales argues that the immigration
`judge’s “use of conjecture” violated due process. Pet’r’s Br. 8–
`9. He challenges the immigration judge’s finding that his wife
`could take over his lease and keep their daughters in their cur-
`rent school. But a challenge to an agency’s factual findings
`raises no constitutional claim. See Cospito v. Att’y Gen., 539
`F.3d 166, 170 (3d Cir. 2008). Calling it a due process challenge
`does not make it so.
`Second, Hernandez-Morales objects to how the immigra-
`tion judge weighed his moral character. Because the judge
`found “no dispute” that he had good moral character but then
`denied relief based in part on his criminal convictions, he ar-
`gues that the judge “created a conflicted record” for the Board.
`App. 4, 7; Pet’r’s Br. 9. This too is not a constitutional claim,
`but rather an unreviewable objection to the judge’s exercise of
`discretion. See Cospito, 539 F.3d at 170.
`As a fallback, Hernandez-Morales argues that the judge’s
`and Board’s weighing of the hardship factors raises at least a
`mixed question of law and fact. In Guerrero-Lasprilla v. Barr,
`the Supreme Court considered whether, when reviewing an or-
`der of removal, a court of appeals could review the application
`of equitable tolling’s due-diligence requirement to “undisputed
`
`
`
`4
`
`
`
`or established facts.” 140 S. Ct. 1062, 1067–68 (2020). The
`Court held that we may do so under § 1252(a)(2)(D). Id. at
`1067. So Hernandez-Morales argues that we may review de
`novo whether he satisfied § 1229b’s hardship requirement. But
`the facts here about schooling are disputed. In any case, a dis-
`agreement about weighing hardship factors is a discretionary
`judgment call, not a legal question. See Galeano-Romero v.
`Barr, 968 F.3d 1176, 1182–84 (10th Cir. 2020).
`Hernandez-Morales also errs in relying on our decision in
`Pareja v. Attorney General, 615 F.3d 180 (3d Cir. 2010).
`There, we remanded part of a case to determine whether the
`Board had incorrectly required the petitioner to show hardship
`by applying “an
`impermissible factor” at odds with
`§ 1229b(b)(1)(D). Id. at 196–97. Here, however, Hernandez-
`Morales alleges no improper legal factor, but asks us only to
`reweigh the proper factors and make our own judgment call.
`We may not do so. § 1252(a)(2)(B)(i).
`* * * * *
`“[A] party may not dress up a claim with legal clothing to
`invoke this Court’s jurisdiction.” Pareja, 615 F.3d at 187. Her-
`nandez-Morales does just that. We appreciate his and his fam-
`ily’s plight. But because we lack jurisdiction to review his pe-
`tition, we will dismiss it.
`
`
`
`5
`
`
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