Elias Aguirre v. Eric Holder, Jr. , 577 F. App'x 315 ( 2014 )

Case: 13-60616 Document: 00512725910 Page: 1 Date Filed: 08/07/2014
IN THE UNITED SATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 13-60616
Fifth Circuit
FILED
Summary Calendar August 7, 2014
Lyle W. Cayce
ELIAS SALINAS AGUIRRE, Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 300 686
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM: *
Petitioner Elias Salinas Aguirre, a native and citizen of Mexico, petitions
for review of an order by the Board of Immigration Appeals (BIA) dismissing
his appeal from an immigration judge’s (IJ) order of removal and denial of
discretionary relief in the form of cancellation of removal under 8 U.S.C.
§ 1229b. Aguirre claims that the BIA misapplied the standard for evaluating,
under § 1229b(b)(1)(D), whether his United States citizen children would be
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-60616 Document: 00512725910 Page: 2 Date Filed: 08/07/2014
No. 13-60616
subject to “exceptional and extremely unusual hardship” if he is deported to
Mexico. He contends that the BIA failed to consider and give weight to all of
the testimony and evidence he provided in support of his request for
cancellation of removal.
Our jurisdiction over immigration proceedings is governed by 8 U.S.C.
§ 1252. Section 1252(a)(2)(B)(i) strips us of jurisdiction to review an
immigration court’s discretionary decision to deny cancellation of removal
under § 1229b or the findings of fact made in support of that decision. Sung v.
Keisler, 505 F.3d 372, 377 (5th Cir. 2007). We have jurisdiction under
§ 1252(a)(2)(D), however, to consider de novo any “constitutional claims or
questions of law” raised in a petition for review of such a decision. Ayanbadejo
v. Chertoff, 517 F.3d 273, 276-77 & nn.9 & 11 (5th Cir. 2008).
Aguirre has not raised any claim of constitutional or legal error in
connection with the BIA’s denial of his request for cancellation of removal.
Aguirre’s claim that the BIA misapplied the standard for determining whether
his children would face “exceptional and extremely unusual hardship” if he is
deported to Mexico is, in essence, an argument that the BIA, in exercising its
discretion to deny cancellation of removal, failed to give the appropriate weight
to the evidence and testimony presented in support of his request. Section
§ 1252(a)(2)(B)(i) prohibits us from reviewing that decision or the factual
findings on which that decision was based. See Sattani v. Holder, 749 F.3d
368, 372 (5th Cir. 2014); Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004).
Aguirre’s attempt to cloak his challenge to the BIA’s non-reviewable,
discretionary decision in legal terms does not create jurisdiction when it is
otherwise lacking. See Sung, 505 F.3d at 377.
Accordingly, Aguirre’s petition for review is DISMISSED for lack of
jurisdiction.
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