Escorza-Ruiz v. Garland ( 2022 )

Case: 22-60118 Document: 00516541256 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. 22-60118
Lyle W. Cayce
Summary Calendar Clerk
Alejandro Rufino Escorza-Ruiz,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A206 425 075
Before Barksdale, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Alejandro Rufino Escorza-Ruiz, a native and citizen of Mexico,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing
his appeal from an order of the Immigration Judge (IJ) denying his application
for cancellation of removal under 8 U.S.C. § 1229b. He claims the BIA erred
*
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opinion should not be published and is not precedent except under the limited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: 22-60118 Document: 00516541256 Page: 2 Date Filed: 11/10/2022
No. 22-60118
by: determining he failed to show removal would cause the requisite
exceptional and extremely unusual hardship for his children; and refusing to
consider his eligibility for voluntary departure. (The IJ noted Escorza
asserted he would seek voluntary departure at one point, but ultimately did
not request it; the BIA agreed he failed to do so.)
Our court lacks jurisdiction to review denial of discretionary relief
under § 1229b, except with respect to constitutional claims or questions of
law. 8 U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. Garland, 142 S. Ct. 1614, 1622–
23 (2022). Jurisdiction is, of course, reviewed de novo. Nehme v. INS, 252
F.3d 415, 420 (5th Cir. 2001).
Escorza’s contention that removal would cause exceptional and
extremely unusual hardship is a “discretionary and authoritative decision”
barred from review by our court. Castillo-Gutierrez v. Garland, 43 F.4th 477,
481 (5th Cir. 2022); 8 U.S.C. § 1252(a)(2)(B).
His assertion that the BIA erred in finding he did not request voluntary
departure before the IJ is unexhausted because he did not challenge this
determination in his brief to the BIA, nor in a motion to reconsider. Martinez-
Guevara v. Garland, 27 F.4th 353, 360–61 (5th Cir. 2022) (no jurisdiction
over claims BIA “never had a chance to consider” (citation omitted)).
Accordingly, our court lacks jurisdiction to consider Escorza’s claims.
DISMISSED.
2