Alberto Hernandez-Gutierrez v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10798
Non-Argument Calendar
____________________
ALBERTO HERNANDEZ-GUTIERREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-392-494
____________________
USCA11 Case: 21-10798 Date Filed: 08/25/2022 Page: 1 of 4

-- 1 of 4 --

2 Opinion of the Court 21-10798
Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
Alberto Hernandez-Gutierrez seeks review of the order of
the Board of Immigration Appeals (“BIA”) affirming the Immigra-
tion Judge’s (“IJ”) denial of his application for cancellation of re-
moval. Because we lack jurisdiction to review the BIA’s decision,
we dismiss Hernandez-Gutierrez’s petition for review.
Hernandez-Gutierrez, a native and citizen of Mexico, en-
tered the United States in 2000 without inspection. In 2012 the De-
partment of Homeland Security issued him a notice to appear,
charging him as removable under the Immigration and Nationality
Act (“INA”) as a noncitizen present in the United States without
having been admitted or paroled.
See 8 U.S.C. § 1182(a)(6)(A)(i).
Hernandez-Gutierrez conceded removability but applied for can-
cellation of removal pursuant to the INA, 8 U.S.C. § 1229b(b)(1).
The Attorney General has the discretion to cancel the re-
moval of certain noncitizens who establish that: (1) they have been
continuously physically present in the United States for at least ten
years; (2) they have been “person[s] of good moral character” while
present in the United States; (3) they have not been convicted of
any specified criminal offenses; and (4) their “removal would result
in exceptional and extremely unusual hardship” to a qualifying rel-
ative who is a U.S. citizen or lawful permanent resident. 8 U.S.C.
§ 1229b(b)(1). Hernandez-Gutierrez asserted that he met all four of
USCA11 Case: 21-10798 Date Filed: 08/25/2022 Page: 2 of 4

-- 2 of 4 --

21-10798 Opinion of the Court 3
these requirements. As to the fourth requirement, Hernandez-
Gutierrez claimed that his removal would result in exceptional and
extremely unusual hardship to his children, who are United States
citizens. He elaborated at a hearing before an IJ and in supporting
documentation, explaining that his income almost exclusively sup-
ported his 3-year-old biological child, his 12- and 16-year-old step-
children (one of whom had asthma), and his wife, who was limited
in her ability to work due to her posttraumatic stress disorder and
major depressive disorder.
The IJ denied Hernandez-Gutierrez’s application for cancel-
lation of removal, concluding, in relevant part, that Hernandez-
Gutierrez failed to demonstrate exceptional and extremely unusual
hardship to his children if he were ordered removed. Hernandez-
Gutierrez appealed the IJ’s decision to the BIA, and the BIA adopted
and affirmed the IJ’s decision as to Hernandez-Gutierrez’s failure
to show that his children would experience exceptional and ex-
tremely unusual hardship upon his return to Mexico. Hernandez-
Gutierrez petitioned this Court for review.
We review the BIA’s decision as the final agency decision,
and we review the IJ’s decision as well to the extent that the BIA
expressly adopts or agrees with it.
Gonzalez v. U.S. Att’y Gen., 820
F.3d 399, 403 (11th Cir. 2016). We generally lack jurisdiction to re-
view the denial of certain forms of discretionary relief, includ-
ing the Attorney General’s decision to award or deny a noncitizen
cancellation of removal.
See 8 U.S.C. § 1252(a)(2)(B)(i). And
though we retain jurisdiction to review “constitutional claims or
USCA11 Case: 21-10798 Date Filed: 08/25/2022 Page: 3 of 4

-- 3 of 4 --

4 Opinion of the Court 21-10798
questions of law” raised in a petition for review,
id. § 1252(a)(2)(D),
the scope of that jurisdiction extends only to genuine questions of
law and colorable constitutional claims.
Arias v. U.S. Att’y
Gen., 482 F.3d 1281, 1284 & n. 2 (11th Cir. 2007). Abuse of discre-
tion arguments cloaked in constitutional or legal language, as well
as challenges to the evidentiary basis for a factual finding, are not
sufficient to invoke our jurisdiction.
Id. at 1284;
see Patel v. Gar-
land, 142 S. Ct. 1614, 1627 (2022) (holding that “[f]ederal courts lack
jurisdiction to review facts found as part of discretionary-relief pro-
ceedings under . . . the . . . provisions enumerated in
§ 1252(a)(2)(B)(i),” one of which is cancellation of removal).
Hernandez-Gutierrez argues that the BIA and IJ improperly
weighed the facts in finding that his United States citizen children
would not experience exceptional and extremely unusual hardship
if he were removed to Mexico. He emphasizes that he is his chil-
dren’s primary financial provider. He argues that if he were re-
moved to Mexico, his wife would be unable to care for the children
adequately, resulting in severe financial and emotional hardship for
the family. The government contends that we should dismiss the
petition for review because we lack jurisdiction to review the BIA’s
discretionary determination regarding hardship. We are bound to
agree.
See Patel, 142 S. Ct. at 1627;
Arias, 482 F.3d at 1284 & n.2. In
the absence of jurisdiction, we must dismiss Hernandez-
Gutierrez’s petition for review.
PETITION DISMISSED.
USCA11 Case: 21-10798 Date Filed: 08/25/2022 Page: 4 of 4

-- 4 of 4 --