Morales v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12186 APR 8, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A043-595-433
CONSUELO ELENA MORALES,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 8, 2011)
Before EDMONDSON, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Consuelo Elena Morales, a pro se petitioner and a native and citizen of
Peru, petitions for review of the Board of Immigration Appeals’s (“BIA”) decision
affirming the Immigration Judge’s (“IJ”) denial of a waiver of inadmissibility,
under INA § 212(h), 8 U.S.C. § 1182(h), for a failure to demonstrate that her
daughter would experience extreme hardship if Morales were removed.
We review our subject-matter jurisdiction de novo. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). When a
statute limits our review, we “retain jurisdiction to determine the underlying
jurisdictional facts at issue.” Resendiz-Alcaraz v. U.S. Att’y Gen., 383 F.3d 1262,
1266 (11th Cir. 2004). We have jurisdiction, under the REAL ID Act of 2005,1 to
decide questions of law or constitutional claims that an alien raises in a petition for
review of a final order of removal. Arias v. U.S. Att’y Gen., 482 F.3d 1281,
1283–84 (11th Cir. 2007) (per curiam).
I.
Morales first argues that the BIA and IJ unfairly exercised their discretion,
unreasonably adjudicated her claim, and committed prejudicial error when they
determined that she failed to demonstrate extreme hardship.
1
Pub. L. No. 109-13, 119 Stat. 231 (2005) [hereinafter “the REAL ID Act”].
2
An alien deemed inadmissible (i.e., removable) for being convicted of a
crime involving moral turpitude may apply for a waiver of inadmissibility if the
alien’s child is a United States citizen or lawful permanent resident and the alien’s
denial of admission would result in an “extreme hardship” to the child, and the
Attorney General has discretion to grant the waiver upon such a showing. See
INA §§ 212(a)(2)(A)(i)(I), (h)(1)(B), 8 U.S.C. §§ 1182(a)(2)(A)(i)(I), (h)(1)(B).
Because the grant or denial of a waiver based on “extreme hardship” is
discretionary and does not present a constitutional claim or question of law, we
lack jurisdiction to review such a grant or denial. See INA §§ 242(a)(2)(B)(i),
(a)(2)(D), 8 U.S.C. § 1252(a)(2)(B)(i), (a)(2)(D) (as amended by the REAL ID
Act); Al Najjar v. Ashcroft, 257 F.3d 1262, 1297–98 (11th Cir. 2001) (analyzing
“extreme hardship” and the associated jurisdictional bar under the substantially
similar transitional IIRIRA2 rules).
Because the BIA’s determination that Morales failed to demonstrate
extreme hardship did not involve a constitutional issue or question of law, we
dismiss these claims for lack of jurisdiction.
II.
2
Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104-208,
110 Stat. 3009-546 (1996).
3
Next, Morales contends that the BIA and IJ violated due process3 and
committed a legal error by applying the wrong legal standard—requiring a
showing of rehabilitation and contrition for her past crimes—to her application for
a waiver of inadmissibility.
We lack jurisdiction to review Morales’s due process claim for two reasons.
First, Morales’s failure to exhaust her due process claim before the BIA deprives
us of jurisdiction to review it. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1) (“A court
may review a final order of removal only if -- (1) the alien has exhausted all
administrative remedies available to the alien as of right . . . .”);
Amaya-Artunduaga, 463 F.3d at 1251 (“[Petitioner’s] allegation of a due process
violation—that he was denied a full and fair hearing before a neutral
factfinder—is precisely the kind of procedural error which requires exhaustion.”).
Second, even if Morales had exhausted her due process claim, we would
lack jurisdiction to consider it because due process is not implicated by the denial
of discretionary immigration relief. Tefel v. Reno, 180 F.3d 1286, 1301–02 (11th
Cir. 1999) (concluding that because the failure to receive discretionary relief in an
immigration context does not implicate due process, the failure to be considered
3
Morales has abandoned any other constitutional claim. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam) (holding issue abandoned where appellant
failed to offer argument on the issue).
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for discretionary immigration relief cannot implicate due process). Therefore, we
lack jurisdiction over Morales’s due process claim, and it is hereby dismissed.
However, we do have jurisdiction to consider the legal question of whether
the IJ and BIA applied the wrong legal standard when they evaluated Morales’s
application for a waiver of inadmissibility. See Frech v. U.S. Att’y Gen., 491 F.3d
1277, 1281 (11th Cir. 2007). We review only the BIA’s decision, but to the extent
that the BIA expressly adopts the IJ’s opinion or adopts the IJ’s reasoning, we
review the IJ’s decision as well. Al Najjar, 257 F.3d at 1284.
In this case, the BIA adopted the IJ’s reasoning concerning Morales’s
failure to demonstrate the requisite extreme hardship to a qualifying relative to
establish her eligibility for a waiver of inadmissibility under INA § 212(h), 8
U.S.C. § 1182(h). But having made that determination, the BIA explicitly refused
to consider whether Morales’s circumstances merited a favorable exercise of
discretion in connection with her application. The BIA did not adopt the IJ’s
opinion or reasoning regarding factors not listed within INA § 212(h)(1)(B),
8 U.S.C. § 1182(h)(1)(B). Consequently, we will not review that portion of the
IJ’s opinion, Al Najjar, 257 F.3d at 1284, and we deny Morales’s claim concerning
the application of an incorrect legal standard.
PETITION DISMISSED IN PART AND DENIED IN PART.
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