Ortiz v. Garland ( 2022 )

Case: 21-60811 Document: 00516541332 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 10, 2022
No. 21-60811 Lyle W. Cayce
Summary Calendar Clerk
Petrona Ramos Ortiz; Antonio Coj Castro,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A205-355-467 & A205-355-468
Before Davis, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
In this immigration case, Petrona Ramos Ortiz and Antonion Coj
Castro (together “the parents”) challenge the Board of Immigration
Appeals’ (“BIA”) denial of relief for cancellation of removal. For the
reasons that follow, we DISMISS the petition for lack of jurisdiction.
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-60811 Document: 00516541332 Page: 2 Date Filed: 11/10/2022
No. 21-60811
I. FACTS
Petrona Ramos Ortiz and Antonion Coj Castro are natives and citizens
of Guatemala who are legally married but separated and were each served
with a notice of appear (“NTA”) charging them with removability for being
present in the United States without having been “admitted or paroled.”
They each applied for cancellation of removal.1
Following a hearing on the merits, the immigration judge (“IJ”)
denied the couple cancellation of removal, concluding that they failed to
show that their three United States citizen children, aged 15, 15, and 11 at the
time of the decision in 2019, would face exceptional and extremely unusual
hardship upon the parents’ removal. The parents appealed to the BIA, but
the BIA dismissed the appeal. This appeal followed.
II. DISCUSSION
In considering a petition for review, this court generally reviews only
the BIA’s decision, but has “authority to review the IJ’s decision” if the
“BIA adopted and affirmed the IJ’s decision based upon the reasons set forth
therein.”2 We review factual findings of the BIA and IJ for substantial
evidence, and questions of law de novo.3
Proceeding pro se on appeal, the parents argue that the BIA and IJ
erred in determining that they had not met their burden to show that their
removal would cause exceptional and extremely unusual hardship for their
children. In order to be eligible for cancellation of removal under 8 U.S.C. §
1229b(b)(1), the parents must demonstrate, inter alia, “that removal would
result in exceptional and extremely unusual hardship to [their] spouse,
1
Ramos Ortiz originally sought withholding of removal and asylum, but she later
withdrew her application.
2
Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
3
Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007) (citing Nakimbugwe v. Gonzales,
475 F.3d 281, 283 (5th Cir. 2007) (per curiam)).
2
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No. 21-60811
parent, or child, who is a citizen of the United States or an alien lawfully
admitted for permanent residence.”4
This court has recently held that, under the Supreme Court’s decision
in Patel v. Garland, 142 S. Ct. 1614 (2022), the hardship determination “is a
discretionary and authoritative decision” which “is beyond [this court’s]
review” under 8 U.S.C. § 1252(a)(2)(B)(i), which strips the court of
jurisdiction to review “any judgment regarding the granting of relief” under
§ 1229b.5 Thus, under Castillo-Gutierrez, the parents’ challenge to the BIA’s
and IJ’s hardship determination must be dismissed for lack of jurisdiction
under § 1252(a)(2)(B)(i).6
III. CONCLUSION
Accordingly, Petrona Ramos Ortiz’s and Antonio Coj Castro’s
petition for review is DISMISSED for lack of jurisdiction.7
4
8 U.S.C. § 1229b(b)(1)(D).
5
See Castillo-Gutierrez v. Garland, 43 F.4th 477, 481 (5th Cir. 2022) (per curiam)
(“Patel makes clear that the [Board’s] determination that a citizen would face exceptional
and extremely unusual hardship is an authoritative decision which falls within the scope of
§ 1252(a)(2)(B)(i) and is beyond our review.”).
6
See id. Petitioners also raise additional arguments for the first time in this court
that were not raised before the IJ or the BIA: (1) Although the parents told the IJ the
children would remain in the U.S. whether or not they were granted relief, they argue to us
that their three sons would face hardship if they accompanied their parents back to
Guatemala; (2) The parents argue that Coj Castro has three qualifying relatives with his
new partner for whom his removal would pose financial and emotional hardships; (3) The
parents additionally argue that the agency lacked jurisdiction over their removal
proceedings because the NTAs omitted the time and date of the original hearings in this
matter. Because the parents did not argue those contentions to the Agency, this court lacks
jurisdiction to consider those arguments. 8 U.S.C. § 1252(d)(1) (requiring exhaustion of
“all administrative remedies available to the alien as of right” for judicial review); see also
Avelar-Olivia v. Barr, 954 F.3d 757, 766 (5th Cir. 2020).
7
The Government filed a motion for summary denial of review, based on the
insufficiency of the parents’ evidence of hardship to their qualifying relatives. Because this
3
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court’s summary affirmance procedure is generally reserved for cases in which the parties
concede that the issues are foreclosed by Circuit precedent, the motion is denied. United
States v. Lopez, 461 F.App’x 372, 374 n.6 (5th Cir. 2012) (per curiam) (unpublished).
Unpublished opinions issued in or after 1996 “are not precedent” except in limited
circumstances, but they “may be persuasive authority.” Ballard v. Burton, 444 F.3d 391,
401 n.7 (5th Cir. 2006).