Luna Esparza v. Garland ( 2022 )

Case: 21-60959 Document: 00516543449 Page: 1 Date Filed: 11/14/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-60959
FILED
Summary Calendar
November 14, 2022
Lyle W. Cayce
J. Reyes Luna Esparza, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A212 953 379
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam:*
J. Reyes Luna Esparza, a native and citizen of Mexico, petitions for
review of a decision of the Board of Immigration Appeals (BIA) dismissing
his appeal and affirming the immigration judge’s (IJ’s) denial of his
application for cancellation of removal.
*
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opinion should not be published and is not precedent except under the limited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: 21-60959 Document: 00516543449 Page: 2 Date Filed: 11/14/2022
No. 21-60959
Luna Esparza argues that the BIA erred in denying his application for
cancellation of removal based on the finding that he had failed to show that
his son would suffer exceptional and extremely unusual hardship upon
petitioner’s removal to Mexico. He further argues that the hardship standard
is unconscionable and violates his constitutional right to due process.
This court lacks jurisdiction to consider Luna Esparza’s challenge to
the BIA’s hardship determination. See Patel v. Garland, 142 S. Ct. 1614, 1622
(2022); Castillo-Gutierrez v. Garland, 43 F.4th 477, 481 (5th Cir. 2022);
8 U.S.C. § 1252(a)(2)(B). We likewise lack jurisdiction to review Luna
Esparza’s related argument that the BIA failed to consider certain relevant
factors in its hardship determination. See Sung v. Keisler, 505 F.3d 372, 377
(5th Cir. 2007).
Luna Esparza also raises a constitutional challenge to the hardship
standard. He argues that the “exceptional and extremely unusual hardship”
requirement is an “unconscionable standard” as applied by the BIA because
only applicants who can show that their qualifying relatives suffer from
“serious physical medical conditions” will be eligible for cancellation of
removal. Luna Esparza contends that the standard’s high burden violates the
due-process rights of noncitizens. This court still has jurisdiction to consider
constitutional challenges to the denial of cancellation of removal. See 8
U.S.C. § 1252(a)(2)(D); see also Patel, 142 S. Ct. at 1623.
Nonetheless, “the failure to receive relief that is purely discretionary
in nature does not amount to a deprivation of a liberty interest.” Assaad v.
Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (internal quotation marks and
citations omitted). And cancellation of removal is a form of discretionary
relief. See 8 U.S.C. § 1229b(b)(1).
The petition for review is DISMISSED in part and DENIED in
part.
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