Garcia-Flores v. Garland ( 2021 )

Case: 20-60127 Document: 00516024268 Page: 1 Date Filed: 09/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 22, 2021
No. 20-60127 Lyle W. Cayce
Summary Calendar Clerk
Adolfo Garcia-Flores,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 226 583
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Adolfo Garcia-Flores, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissing his appeal of
the Immigration Judge’s (IJ) denying his applications for: cancellation of
removal; and post-conclusion voluntary departure. He contends the BIA
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-60127
violated his due-process rights concerning discretionary relief from removal
and erred by affirming the IJ’s: denial of cancellation of removal; denial of
voluntary departure; and conclusion that Garcia was ineligible for
cancellation of removal because he failed to establish the requisite level of
hardship.
Our court generally lacks jurisdiction to review the BIA’s denial of
discretionary relief, including cancellation of removal and voluntary
departure. See 8 U.S.C. § 1252(a)(2)(B)(i); Sung v. Keisler, 505 F.3d 372, 377
(5th Cir. 2007) (cancellation of removal); Sattani v. Holder, 749 F.3d 368,
372–73 (5th Cir. 2014) (voluntary departure). This jurisdictional bar,
however, does not apply to review of the BIA’s non-discretionary decision an
applicant is ineligible for discretionary relief. Trejo v. Garland, 3 F.4th 760,
767–68, 773 (5th Cir. 2021) (“[T]he decision that is shielded from judicial
review by § 1252(a)(2)(B)(i)” is “whether to actually grant cancellation to a
qualifying alien”. (citations omitted)). The BIA’s factual findings are
reviewed for substantial evidence; its legal conclusions, de novo. Lopez-Gomez
v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). Due-process challenges are
also reviewed de novo. De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir.
2004).
Accordingly, our court lacks jurisdiction to review Garcia’s
cancellation-of-removal and voluntary-departure challenges. His
cancellation-of-removal challenge falls squarely within § 1252(a)(2)(B)(i)’s
ambit. Similarly, although § 1252(a)(2)(D) allows “review of constitutional
claims or questions of law raised upon a petition for review”, Garcia’s
voluntary-departure challenge does not raise a constitutional or legal
question. He, instead, contests the IJ’s factual conclusions and exercise of
discretion. See Sattani, 749 F.3d at 373 (explaining factual dispute
insufficient to establish jurisdiction).
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No. 20-60127
On the other hand, our court has jurisdiction to consider Garcia’s
challenge to the BIA’s decision he is ineligible for cancellation of removal.
To be eligible for this discretionary relief, applicant must establish, inter alia,
his removal would cause a qualifying relative to suffer an “exceptional and
extremely unusual hardship”. 8 U.S.C. § 1229b(b)(1)(d). In Matter of
Andazola-Rivas, 23 I. & N. Dec. 319, 324 (B.I.A. 2002), the BIA explained
that, although an applicant’s status as an unmarried mother with asthma
would put her at a disadvantage in Mexico, this “common” fact pattern did
not satisfy the exceptional-and-extremely-unusual-hardship standard, noting
“almost every case will present some particular hardship”. Like the
applicant in Matter of Andazola-Rivas, Garcia’s wife’s hardships do not
constitute extreme hardship warranting cancellation.
As for Garcia’s due-process claim, an order of removal will be found
wanting on due-process grounds if petitioner establishes his deportation
proceedings were fundamentally unfair, constituting a denial of “the
opportunity to be heard or present evidence”. Toscano-Gil v. Trominski, 210
F.3d 470, 474 (5th Cir. 2000) (noting petitioner given requisite opportunity).
But, “discretionary relief from removal, including an application for an
adjustment of status, is not a liberty or property right that requires due
process protection”. Ahmed v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006)
(citations omitted) (holding petitioner failed to raise due-process claim).
Accordingly, the BIA’s denial of Garcia’s request for discretionary relief
from removal “does not rise to the level of a constitutional violation”.
Hernandez-Castillo v. Sessions, 875 F.3d 199, 206 (5th Cir. 2017) (quoting
Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006)) (same).
DISMISSED in part; DENIED in part.
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