NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 22-3185 _____________

JOSE MARTIN AVILA GARCIA, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA ______________

On Petition for Review of a Final Order of the Board of Immigration Appeals No. A209-307-766 Immigration Judge: Dinesh C. Verma ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on July 13, 2023

Before: PHIPPS, McKEE, RENDELL, Circuit Judges

(Opinion filed: July 25, 2023)

_____________________

OPINION ______________________

McKEE, Circuit Judge.

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Jose Avila Garcia petitions for review of the Board of Immigration Appeals’

decision affirming the denial of his application for cancellation of removal. We will deny

the petition for review.1

I.2

Under

(a)(2)(B)(i), “[t]his Court lacks jurisdiction to review the

denial of discretionary relief, including cancellation of removal. We may, however,

review ‘constitutional claims or questions of law raised upon a petition for review . . . .’”3

To be eligible for cancellation of removal, an individual must establish “that removal

would result in exceptional and extremely unusual hardship” to a qualifying relative.4

“Challenges to ‘exceptional and extremely unusual’ hardship determinations constitute

‘quarrels over the exercise of discretion and the correctness of factual findings’ and do

not raise constitutional claims or questions of law.”5 However “where the BIA is alleged

to have made a hardship determination based on ‘an erroneous legal standard’ or ‘on fact-

finding which is flawed by an error of law,’ our jurisdiction to review that determination

is secure.”6

1 We have jurisdiction to review the BIA’s order under

(a)(1). 2 If the BIA “‘affirmed and partially reiterated’ the IJ’s determinations, we review both decisions.” Blanco v. Att’y Gen.,

(3d Cir. 2020) (quoting Sandie v. Att’y Gen.,

(3d Cir. 2009)). 3 Pareja v. Att’y Gen.,

(3d Cir. 2010) (citation omitted) (quoting

(a)(2)(D)). 4 8 U.S.C. § 1229b(b)(1). 5 Patel v. Att’y Gen.,

(3d Cir. 2010) (quoting Cospito v. Att’y Gen.,

(3d Cir. 2008)). 6 Pareja,

(quoting Mendez v. Holder,

(2d Cir. 2009)).

2 Garcia contends that the IJ made several legal errors in the hardship determination,

which provide us with jurisdiction to review the BIA’s determination that he failed to

demonstrate hardship. Specifically, Garcia argues that the IJ legally erred by focusing on

his present circumstances and those of his son in Mexico, rather than on the future

hardship his U.S. citizen daughters would face in the event of his removal. However, the

IJ looked at the current circumstances of Garcia and his son to help predict the hardship

that would occur to Garcia’s daughters after his removal. Garcia does not raise colorable

legal challenges to the hardship determination, rather he disputes the IJ’s discretionary

factual findings. “[A] party may not dress up a claim with legal clothing to invoke this

Court’s jurisdiction.”7 Therefore, we lack jurisdiction over Garcia’s challenges to the

discretionary hardship determination.8

Garcia also contends that the BIA erroneously affirmed the IJ’s refusal to

terminate the proceedings due to the deficient Notice to Appear. Garcia received the

deficient NTA on February 1, 2017, but he waited until his final merits hearing on

November 20, 2018, after the pleadings had closed, to object to the NTA. We have

previously concluded that a petitioner’s objections to an NTA that failed to specify the

date and time to appear was untimely because the petitioner “waited until just before her

7 Pareja,

. 8 Even if we had jurisdiction, the Government contends that Garcia’s alleged legal challenges to the hardship determination are unexhausted and unreviewable because Garcia did not present them to the BIA. A final order of removal is reviewable only if a noncitizen “has exhausted all administrative remedies available . . . as of right.”

(d)(1). Moreover, “[t]he exhaustion requirement attaches to each particular issue raised by the petitioner.” Castro v. Att’y Gen.,

(3d Cir. 2012).

3 merits hearing to raise her complaint about the omissions on the NTA, over two years

after her proceedings commenced.”9 The BIA has also held that in order to be timely an

objection to a deficient NTA must be “raised prior to the closing of pleadings before the

Immigration Judge.”10 Garcia did not object to the deficient NTA until after the close of

pleadings during the merits hearing more than twenty-one months after the NTA was

filed. Thus, Garcia’s objection to the NTA was untimely and the BIA did not err by

affirming the IJ’s refusal to terminate the proceedings due to the invalid NTA.

II.

For the above reasons, we will deny the petition for review.

9 Chavez-Chilel v. Att’y Gen.,

, 144 n.7 (3d Cir. 2021). 10 Matter of Fernandes,

, 610–11 (BIA 2022).

4