Velasquez Amaya v. Barr

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60066
Summary Calendar

DAVID ANTONIO VELASQUEZ AMAYA,

Petitioner

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A209 309 923

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

David Antonio Velasquez Amaya, a native and citizen of Honduras,
petitions this court for review of the decision by the Board of Immigration
Appeals (BIA) dismissing his appeal of the Immigration Judge’s (IJ) denial of
cancellation of removal under 8 U.S.C. § 1229b. He contends that he
established his eligibility for the requested relief. In addition, Velasquez
Amaya maintains that the IJ and BIA failed to consider the positive factors for

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 29, 2020

Lyle W. Cayce
Clerk
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No. 19-60066
2
granting him relief and gave undue weight to negative factors such as his
criminal history.
Because the BIA did not rely on the IJ’s determination that Velasquez
Amaya was statutorily ineligible for cancellation of removal, that argument is
not properly before us. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th
Cir. 2002). As for Velasquez Amaya’s challenge to the agency’s failure to
exercise discretion in favor of granting him relief, we are statutorily barred
from reviewing the BIA’s purely discretionary denial of cancellation of removal.
8 U.S.C. § 1252(a)(2)(B)(i); Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014).
This jurisdiction-stripping provision does not preclude review of constitutional
claims or questions of law. § 1252(a)(2)(D); Sattani, 749 F.3d at 372. However,
we look past an alien’s framing of an issue and will decline to consider “an
abuse of discretion argument cloaked in constitutional garb.” Hadwani v.
Gonzales, 445 F.3d 798, 801 (5th Cir. 2006) (internal quotation marks, citation,
and brackets omitted).
Velasquez Amaya’s claim that the IJ and BIA failed to properly consider
and weigh the factors in favor of and against an exercise of discretion “falls
squarely within the jurisdictional bar of 8 U.S.C. § 1252(a)(2)(B).” Sattani, 749
F.3d at 372. We therefore lack jurisdiction on this ground.
Although Velasquez Amaya raises other claims that may invoke the
Constitution or statutory law, he is not entitled to relief. He challenges the
admissibility of Form I-213, the Record of Deportable/Admissible Alien,
because it includes irrelevant and inadmissible information, but he did not
present such an argument to the BIA and it is therefore unexhausted. See
Omari v. Holder, 562 F.3d 314, 319 (5th Cir. 2009). To the extent that
Velasquez Amaya is arguing that he should not have been ordered removed
because he has a pending U visa based on police brutality and discrimination
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in Florida, such a visa has no bearing on a determination that an alien should
be removed. See 8 C.F.R. § 214.14(c)(1)(ii). We decline to review Velasquez
Amaya’s assertion that the BIA applied an incorrect standard of review to the
IJ’s findings of fact, raised for the first time in his reply brief. See Diaz v.
Sessions, 894 F.3d 222, 226 n.2 (5th Cir. 2018). Finally, Velasquez Amaya’s
allegations that he is entitled to reinstatement of his bond and that his
continued immigration detention exceeds constitutional limits is not properly
reviewable in a petition for review of a removal proceeding. See 8 C.F.R.
§ 1003.19(d); Zadvydas v. Davis, 533 U.S. 678, 684-867 (2001).
Accordingly, Velasquez Amaya’s petition for review is DENIED IN PART
and DISMISSED IN PART for lack of jurisdiction. Velasquez Amaya’s motions
seeking a copy of certified administrative records and asking this court to
require an attorney for the respondent to withdraw from the case are DENIED.
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