Blanca Aracely Lovo De Perez v. U.S. Attorney General

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14738
Non-Argument Calendar
____________________
BLANCA ARACELY LOVO DE PEREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A209-854-084
____________________
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2 Opinion of the Court 20-14738
Before JILL PRYOR, LUCK, and TJOFLAT, Circuit Judges.
PER CURIAM:
Blanca Aracely Lovo de Perez seeks review of the Board of
Immigration Appeals’ (“BIA”) final order affirming the Immigra-
tion Judge’s (“IJ”) denial of her application for cancellation of re-
moval. She argues that the BIA applied an incorrect legal stand-
ard when it found that she had not shown sufficient hardship to
her U.S. citizen children to be eligible for cancellation of removal.
She also argues that the BIA violated her minor children’s rights
to substantive due process and equal protection under the Fifth
Amendment when they were separated as a result of denying her
relief. Because we find that both arguments lack merit, we dis-
miss this petition in part and deny it in part.
I.
Lovo de Perez is a native and citizen of El Salvador who ar-
rived in the United States without inspection at an unknown place
and time. On February 3, 2020, the Department of Homeland Se-
curity served her with a notice to appear, which charged that she
was removable for being present without being admitted or pa-
roled. 8 U.S.C. § 1182(a)(6)(a)(i). She conceded removability but
applied for cancellation of removal in April 2020. As the basis of
her application, Lovo de Perez asserted that she had lived in the
United States since 2003 and her removal would result in excep-
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20-14738 Opinion of the Court 3
tional and extremely unusual hardship to her two U.S. citizen
children.
At her hearing before an IJ, she testified that she entered
the U.S. illegally in 2003 at the age of 24. She testified that she
went to South Carolina, where she had lived ever since. She said
that she worked in different jobs—construction, cleaning up trash,
in restaurants, and cleaning houses—earning her a weekly income
of around $300–$350. She testified that she separated from her
husband in El Salvador and had not spoken to him since 2003.
Lovo de Perez testified that she had four children, and three of
them—two minor U.S. citizens and a 25-year-old Deferred Action
for Childhood Arrivals (“DACA”) 1 recipient born in El Salvador—
lived with her in South Carolina. At the time of the hearing, her
minor children were 13 and 15 years old. She also testified that
she had a boyfriend, Hector, in the United States for ten years.
Hector did not have legal status, and they had no children togeth-
er. She testified that they lived together and he helped to pay
some of the bills. Although the father of the two U.S. citizen chil-
dren lived in South Carolina, they basically had no contact, and he
was arrested for failing to pay child support to Lovo de Perez.
1 DACA is a program started in 2012 with the goal of providing immigration
relief to certain young people who were children when they arrived in the
United States. DHS v. Regents of the Univ. of Calif., 140 S. Ct. 1891, 1901
(2020). DACA works by deferring immigration action against these individ-
uals for certain periods and treating these individuals as “lawfully present”
for the purposes of certain government benefits. Id. at 1902.
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4 Opinion of the Court 20-14738
She also testified that she did not know what would hap-
pen to her minor children. She said that her current boyfriend
disliked the minor children, that her husband in El Salvador
would not take them in, and that the adult DACA recipient would
go to live with his own girlfriend. If they went with her to El Sal-
vador, the minor children did not speak sufficient Spanish and
would not know anyone there. The family members she did have
in El Salvador were impoverished and would be unable to help
her. The DACA recipient son testified at the hearing that if she
were deported, Lovo de Perez would likely take his two younger
U.S. citizen brothers with her to El Salvador—but also testified
that he would take care of them if there was no other option. He
stated that it would be difficult for him given his young age and
the fact that he wanted to start his own life. Lovo de Perez also
testified that, because of her age, she would likely be unable to get
work in El Salvador if she were deported, and she and her sons
would live in poverty.
The IJ issued an oral decision denying the application for
cancellation of removal. Although he found Lovo de Perez credi-
ble, the IJ also found that she had two convictions for driving
without a license and one for driving under the influence. The IJ
found that her criminal history disqualified her for cancellation of
removal for lack of good moral character. The IJ next determined
that even if she met the requirement of good moral character, she
failed to show exceptional and extremely unusual hardship. The
IJ believed that it was unclear where her sons would go, but that
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20-14738 Opinion of the Court 5
her minor sons were young, healthy, and could adapt. The IJ
found nothing in the record to support Lovo de Perez’s assertion
that she could not get a job in El Salvador and also explained that
economic hardship alone was not sufficient to show hardship.
Accordingly, the IJ denied her application.
Lovo de Perez appealed the IJ’s decision, and the BIA af-
firmed. It agreed that she failed to show exceptional and extreme-
ly unusual hardship—that she failed to show that her U.S. citizen
children would become homeless if they stayed in the United
States, and they were otherwise healthy. Therefore, the BIA dis-
missed the appeal.
II.
We review the BIA’s decision as the final judgment unless
the BIA expressly adopted the IJ’s decision, in which case we re-
view both decisions. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–
48 (11th Cir. 2010). When the BIA explicitly agrees with the de-
terminations of the IJ, we will review the decision of both the BIA
and the IJ. Id. at 948. We review de novo whether we have sub-
ject matter jurisdiction to consider a petition for review. Ama-
ya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.
2006).
The Attorney General has discretion to cancel the removal
of a non-permanent resident if that alien (1) has been physically in
the United States for a continuous period of not less than 10 years,
(2) has been a person of good moral character, (3) has not been
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6 Opinion of the Court 20-14738
convicted of certain criminal offenses, and (4) establishes that her
removal would result in exceptional and extremely unusual hard-
ship to a minor child, spouse, or parent who is a U.S. citizen or
lawful permanent resident. 8 U.S.C. § 1229b(b)(1). If all of these
factors are met, then, and only then, may the Attorney General
exercise the discretion to cancel removal. Id.; see Said v. U.S.
Att’y Gen., 28 F.4th 1328, 1330 (11th Cir. 2022). The Attorney
General has delegated this discretion to the IJs within the United
States Citizenship and Immigration Services. § 1229a(a)(1); 8 CFR
§§ 1240.1(a)(1), 1245.2(a)(1)(i).
Pursuant to the discretionary decision jurisdictional bar, we
lack jurisdiction to review “any judgment regarding the granting
of” cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i); see also
Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1262 (11th Cir. 2020) (en
banc), aff’d, Patel v. Garland, No. 20-979, slip. op. at 17, 2022 WL
1528346 (U.S. May 16, 2022). 2 Notwithstanding this jurisdictional
bar, however, we may review constitutional claims and questions
of law. 8 U.S.C. § 1252(a)(2)(D); Patel, 971 F.3d at 1262. Our ju-
risdiction, though, extends only to genuine, colorable constitu-
tional or legal claims, as “a party may not dress up a claim with
2 The Supreme Court in Patel agreed with the analysis of our en banc pan-
el—that is, the federal courts are precluded from reviewing factual determi-
nations as part of the BIA’s decisions on an application for cancellation of
removal. Patel, No. 20-979, slip op. at 8–9, 17. This is contrasted with legal
and constitutional claims, which we do have subject matter jurisdiction to
review. Id. at 9; § 1252(a)(2)(D).
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20-14738 Opinion of the Court 7
legal or constitutional clothing to invoke our jurisdiction.” Patel,
971 F.3d at 1272; see Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d
1191, 1196–97 (11th Cir. 2008) (stating that a “garden-variety
abuse of discretion argument” that the IJ failed to properly weigh
the facts does not amount to a legal question). To be “colorable,”
a claim must have “some possible validity.” Arias v. U.S. Att’y
Gen., 482 F.3d 1281, 1284 & n.2 (11th Cir. 2007).
Aliens do not have a liberty interest in purely discretionary
forms of relief that is protected by the procedural component of
the Due Process Clause. Scheerer v. U.S. Att’y Gen., 513 F.3d
1244, 1253 (11th Cir. 2008). Likewise, substantive due process is
unavailable as a claim for children of deported aliens because
“[l]egal orders of deportation to [the] parents [of U.S. citizen chil-
dren] do not violate any constitutional right of citizen chil-
dren.” Gonzalez-Cuevas v. INS, 515 F.2d 1222, 1224 (5th Cir.
1975). 3 Moreover, under the equal protection component of the
Due Process Clause of the Fifth Amendment, statutory classifica-
tions of immigrants are subject to minimal scrutiny. Rivas v. U.S.
Att’y Gen., 765 F.3d 1324, 1328–29 (11th Cir. 2014). Under this
standard, “the alien bears the burden of establishing that the gov-
ernment regulation is arbitrary or unreasonable and not rationally
3 Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc)
(holding that we are bound by former Fifth Circuit decisions issued on or
before September 30, 1981).
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8 Opinion of the Court 20-14738
related to the government’s purpose.” Id. at 1329 (brackets omit-
ted).
III.
Lovo de Perez makes two arguments on appeal. Lovo de
Perez first argues that the BIA applied an improper legal stand-
ard—by improperly focusing on her children’s health, rather than
considering all the hardship factors cumulatively. She acknowl-
edges that the BIA stated that it considered the hardship factors in
the aggregate, but argues that it primarily focused on the chil-
dren’s lack of medical conditions and failed to give proper weight
to any other factor. She also states that the BIA failed to fully
consider the effects of the economic hardship her deportation
would cause. Second, she argues that the decision to deny her
cancellation of removal violated her and her minor children’s
rights to substantive due process and equal protection, because
the separation of parents and their minor children violates their
right to family integrity and familial association. In other words,
she argues that she is immune from deportation as a result of
these substantive rights.
We lack jurisdiction to review Lovo de Perez’s first argu-
ment because, though it is couched as a question of law, in sub-
stance it challenges the agency’s weighing of the hardship factors.
That argument, at its core, is simply another way of challenging
an IJ’s discretion, which we lack the jurisdiction to review. Patel,
971 F.3d at 1280 (“[T]he BIA’s factfinding, factor-balancing, and
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20-14738 Opinion of the Court 9
exercise of discretion normally do not involve legal or constitu-
tional questions, so we lack jurisdiction to review them.” (quoting
Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010) (internal quota-
tion marks omitted)); Alvarez Acosta, 524 F.3d at 1196–97.
Her equal protection claim is also not colorable because
she does not attack any statutory classification or argue that the
statute fails rational basis review. See Rivas, 765 F.3d at 1328–29.
Finally, Lovo de Perez’s due process claim fails on the mer-
its, as she has no substantive right to discretionary relief from re-
moval, and lawful orders of deportation of parents of minor U.S.
citizen children do not violate the citizen children’s due process
rights. Scheerer, 513 F.3d at 1253; Gonzales-Cuevas, 515 F.2d at
1224. Accordingly, we dismiss the petition in part and deny it in
part.
PETITION DISMISSED IN PART AND DENIED IN
PART.