Marcos Escalona-Sanchez v. U.S. Attorney General

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11751
Non-Argument Calendar
____________________
MARCOS ESCALONA-SANCHEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-668-995
____________________
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2 Opinion of the Court 21-11751
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
Marcos Escalona-Sanchez petitions for review of the Board
of Immigration Appeals’ final order affirming the immigration
judge’s denial of his application for cancellation of removal. He
argues that the board applied an incorrect legal standard when it
determined that he hadn’t established that removal would result in
“exceptional and extremely unusual hardship” to his United States
citizen son. See 8 U.S.C. § 1229b(b)(1)(D). He also asserts that the
board violated his son’s right to substantive due process under the
Fifth Amendment and equal protection under the Fourteenth
Amendment when it denied his application. After careful review
of the record and the parties’ briefs, we partly dismiss and partly
deny his petition.
I
Escalona-Sanchez is a native and citizen of Mexico who ille-
gally entered the United States in 2000. In 2016, he was convicted
of driving under the influence and without a license. His convic-
tion brought him to the attention of immigration officials, and the
Department of Homeland Security took him into custody in Au-
gust 2020.
The department served Escalona-Sanchez with a notice to
appear before an immigration judge, which charged that he was
removable for being present without being admitted or paroled.
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21-11751 Opinion of the Court 3
See id. § 1182(a)(6)(A)(i). Escalona-Sanchez conceded removability
but applied for cancellation of removal. See id. § 1229b. As the
basis of his application, Escalona-Sanchez asserted that his removal
would result in exceptional and extremely unusual hardship to his
United States citizen son.
At his hearing before the immigration judge, Escalona-
Sanchez testified that he “frequently” spent time “doing a lot of ac-
tivities” with his eight-year-old son. But he explained that his son
lived with his son’s mother and had not lived with him for approx-
imately three years. He also testified that his son had asthma, astig-
matism, chronic pneumonia, and a learning disability. But a recent
medical report documented that his son had “no abnormal find-
ings” and “[n]o problems with asthma”; that his asthma was
“mild,” “intermittent,” and “[w]ell controlled”; that there were
“[n]o concerns about [his] vision”; and that his son’s mother re-
ported that his son’s “academic performance [was] good.” And
while Escalona-Sanchez testified that he planned to bring his son
with him to Mexico if he were removed, he conceded that his son’s
mother would not allow him to take their son back to Mexico. His
son’s mother worked and financially supported his son while Esca-
lona-Sanchez was detained.
The immigration judge denied Escalona-Sanchez’s applica-
tion for cancellation of removal. “Considering all the factors in the
aggregate,” the immigration judge determined that Escalona-
Sanchez hadn’t met his burden of proof to show that his removal
would result in exceptional and extremely unusual hardship to his
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4 Opinion of the Court 21-11751
son. The immigration judge found that Escalona-Sanchez hadn’t
shown that his son: (1) would return to Mexico if Escalona-
Sanchez were removed; (2) “suffer[ed] from a serious medical con-
dition that [was] substantially beyond that suffered by other chil-
dren and would meet the exceptional and extremely unusual hard-
ship requirements”; (3) had a learning disability; or (4) would suffer
“exceptional or extreme” financial hardship rather than “the ordi-
nary consequences of one’s deportation.”
Escalona-Sanchez appealed the immigration judge’s deci-
sion to the board, arguing that the immigration judge erred in find-
ing that he had failed to establish that his removal would result in
exceptional and extremely unusual hardship to his son. The board
affirmed the immigration judge’s denial of Escalona-Sanchez’s ap-
plication for cancellation of removal and dismissed his appeal. Be-
cause Escalona-Sanchez’s son’s mother was “gainfully employed,”
the board explained, he hadn’t shown that “she w[ould] not be able
to adequately provide [his son] with needed care and support.”
And even if Escalona-Sanchez’s son accompanied him to Mexico,
the board wrote, “he ha[d] not persuasively shown that adequate
medical care for the child’s claimed conditions would not be rea-
sonably available in Mexico where [Escalona-Sanchez] w[ould] re-
side.” Thus, “[c]onsidering the totality of the circumstances,” the
board “agreed with the [i]mmigration [j]udge” and concluded that
Escalona-Sanchez “ha[d] not established that, upon his removal, his
child w[ould] suffer hardship that is substantially beyond that
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21-11751 Opinion of the Court 5
which would ordinarily be expected to result from a respondent’s
removal from the United States.”
II
“We review the [board]’s decision as the final judgment, un-
less the [board] expressly adopted the [immigration judge]’s opin-
ion.” Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th
Cir. 2019). “When the [board] agrees with the [immigration
judge]’s reasoning, we review the decisions of both the [board] and
the [immigration judge].” Id. We review de novo whether we
have subject matter jurisdiction to consider a petition for review.
Amaya-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 nonpermanent resident if he: (1) has been physically in the
United States for a continuous period of not less than ten years;
(2) has been a person of good moral character; (3) has not been con-
victed of certain criminal offenses; and (4) establishes that his re-
moval would result in exceptional and extremely unusual hardship
to a minor child, spouse, or parent who is a United States citizen or
lawful permanent resident. 8 U.S.C. § 1229b(b)(1). Removal pro-
ceedings are conducted by immigration judges, who exercise the
authority of the Attorney General. Id. § 1229a(a)(1); 8 C.F.R.
§§ 1240.1(a)(1), 1245.2(a)(1)(i) (2021).
Under the discretionary decision jurisdictional bar, we lack
jurisdiction to review “any judgment regarding the granting of”
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6 Opinion of the Court 21-11751
cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)(i); see Patel v.
U.S. Att’y Gen., 971 F.3d 1258, 1262 (11th Cir. 2020) (en banc), aff’d
sub nom. Patel v. Garland, 142 S. Ct. 1614 (2022). We only have
jurisdiction to review “constitutional claims or questions of law”
that are “colorable.” Patel, 971 F.3d at 1272 (citing 8 U.S.C.
§ 1252(a)(2)(D)). That is, a claim must have “some possible valid-
ity.” Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 n.2 (11th Cir.
2007). “[A] party may not dress up a claim with legal or constitu-
tional clothing to invoke our jurisdiction,” Patel, 971 F.3d at 1272,
and a “garden-variety abuse of discretion argument . . . does not
amount to a legal question under [section] 1252(a)(2)(D),” Alvarez
Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196–97 (11th Cir. 2008).
Substantive due process is unavailable as a claim for children
of deported noncitizens because “[l]egal orders of deportation to
[the] parents [of United States citizen children] do not violate any
constitutional right of citizen children.” Gonzalez-Cuevas v. Im-
migr. & Naturalization Serv., 515 F.2d 1222, 1224 (5th Cir. 1975).
And, under the equal protection component of the Fifth Amend-
ment’s Due Process Clause, statutory classifications 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 government regulation is
arbitrary or unreasonable and not rationally related to the govern-
ment’s purpose.” Id. at 1329 (alteration adopted). “[T]he burden
lies on the challenging party to demonstrate that no conceivable
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21-11751 Opinion of the Court 7
basis exists to support the classification.” Resendiz-Alcaraz v. U.S.
Att’y Gen., 383 F.3d 1262, 1271–72 (11th Cir. 2004).
III
Escalona-Sanchez makes three arguments on appeal. First,
he argues that the board applied an incorrect legal standard because
it did not “take into consideration all forms of evidence submitted”
and “gave zero importance to all the evidence submitted and con-
cluded that [it] w[as] not persuaded enough.” Second, he asserts
that the board applied an incorrect legal standard because its use of
the word “persuaded” showed “an utter disregard for the law.”
Third, he contends that the board’s denial of his application vio-
lated his son’s “absolute right” under the Fifth Amendment’s Due
Process Clause and the Fourteenth Amendment’s Equal Protection
Clause to “remain together in the United States” with Escalona-
Sanchez. 1
1
We construe Escalona-Sanchez’s Fourteenth Amendment equal protection
claim as a Fifth Amendment equal protection claim because “it is the business
of the political branches of the [f]ederal [g]overnment, rather than that of the
[s]tates[,] to regulate the conditions of entry and residence of aliens.” Rodri-
guez ex rel. Rodriguez v. United States , 169 F.3d 1342, 1347 (11th Cir. 1999)
(cleaned up) (quoting Mathews v. Diaz, 426 U.S. 67, 84 (1976)). “So while state
laws that discriminate against noncitizens are subject to strict scrutiny under
the Fourteenth Amendment, federal laws that discriminate against nonciti-
zens must pass only rational-basis scrutiny under the Fifth Amendment.”
United States v. Osorto, 995 F.3d 801, 811 (11th Cir. 2021) (citations omitted).
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8 Opinion of the Court 21-11751
We lack jurisdiction to review Escalona-Sanchez’s first argu-
ment because, while it’s couched as a question of law, in substance
it challenges the board’s weighing of the hardship factors. That’s a
“garden-variety abuse of discretion argument,” see Alvarez Acosta,
524 F.3d at 1196, which we don’t have jurisdiction to review, see
Patel, 971 F.3d at 1280 (“[T]he [board]’s factfinding, factor-balanc-
ing, and exercise of discretion normally do not involve legal or con-
stitutional questions, so we lack jurisdiction to review them.”).
His second argument fails on the merits because the Immi-
gration and Nationality Act requires immigration judges to “deter-
mine whether or not the testimony is credible, is persuasive, and
refers to specific facts sufficient to demonstrate that the applicant
has satisfied the applicant’s burden of proof.” 8 U.S.C.
§ 1229a(c)(4)(B) (emphasis added); see Patel, 142 S. Ct. at 1619
(“[E]ven an eligible noncitizen must persuade the immigration
judge that he merits a favorable exercise of discretion.”). Thus, the
board applied the correct legal standard in determining that Esca-
lona-Sanchez had not “persuasively shown” that his removal
would result in exceptional and extremely unusual hardship to his
son.
Finally, Escalona-Sanchez’s constitutional claims also fail on
the merits. “The practice of removing aliens with citizen-children
is constitutionally sound.” Marin-Garcia v. Holder, 647 F.3d 666,
673 (7th Cir. 2011). Escalona-Sanchez’s substantive due process
claim has no possible validity because the lawful denial of his appli-
cation for cancellation of removal “d[id] not violate any
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constitutional right of [his] citizen child[].” See Gonzalez-Cuevas,
515 F.2d at 1224. And, as to his equal protection claim, Escalona-
Sanchez hasn’t shown that “no conceivable basis exists to support”
the “exceptional and extremely unusual hardship” requirement.
See Rivas, 765 F.3d at 1328–29; Resendiz-Alcaraz, 383 F.3d at 1271–
72. The “exceptional and extremely unusual hardship standard”
survives this review because it is reasonably conceivable that Con-
gress chose to limit cancellation of removal to truly exceptional
cases as a response to a weakening of the then-extant standard for
this form of relief.
PETITION DISMISSED IN PART AND DENIED IN
PART.