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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11697
Non-Argument Calendar
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Agency No. A204-244-457
ALFREDO PEREZ AGUILAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 6, 2020)
Before WILSON, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
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Alfredo Perez Aguilar seeks review of the Board of Immigration Appeals’s
(“BIA”) denial of his motion to reconsider its earlier order reversing the
Immigration Judge’s (“IJ”) grant of cancellation of removal. In his counseled
petition for review, Perez Aguilar argues that the BIA erred when it refused to
reconsider its earlier decision that applied the incorrect standard of review. After
review, we dismiss in part and deny in part Perez Aguilar’s petition for review.
I. BACKGROUND
Perez Aguilar, a native and citizen of Mexico who conceded his
removability, applied for cancellation of removal under Immigration and
Nationality Act (“INA”) § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), based on the
hardship his removal would cause his three minor U.S.-born children. After a
hearing, the IJ determined, inter alia, that Perez Aguilar had shown that his
children would suffer the required “exceptional and extremely unusual hardship”
required by INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D), if he were removed
and granted Perez Aguilar’s application.
The government appealed to the BIA. In an August 2, 2018 decision, the
BIA sustained the government’s appeal and reversed the IJ’s hardship
determination. In doing so, the BIA stated that it reviewed the IJ’s findings of fact
“under a ‘clearly erroneous’ standard” and reviewed “all other issues, including
issues of law, judgment or discretion, under a de novo standard.” After discussing
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the hardships Perez Aguilar’s children would face, the BIA concluded that “these
hardships would not be so uncommon or severe when compared with those
experienced by other, similarly-situated, individuals that they may fairly be
characterized as ‘exceptional and extremely unusual’ in the sense intended by
Congress . . . .”
Perez Aguilar did not seek judicial review but filed a motion for
reconsideration with the BIA. Perez Aguilar’s motion for reconsideration argued
that: (1) in its August 2, 2018 decision, the BIA had engaged in impermissible de
novo review of the IJ’s findings of fact, in violation of 8 C.F.R. § 1003.1; and (2)
the IJ’s findings of fact, if accepted, reasonably supported the IJ’s conclusion that
Perez Aguilar had shown the requisite hardship for cancellation of removal.
On April 3, 2019, the BIA issued its decision denying Perez Aguilar’s
motion for reconsideration. The BIA again stated the standard of review—clear
error for the IJ’s fact findings and de novo for all other issues. The BIA first noted
that Perez Aguilar’s motion “essentially renew[ed] the arguments made before the
Immigration Judge” that the BIA had “previously considered and rejected.” Next,
in addressing Perez Aguilar’s legal argument that it had “erred by engaging in
impermissible fact finding in reversing the Immigration Judge’s ultimate decision
to grant the respondent’s application for cancellation of removal,” the BIA
“disagree[d] with the respondent’s characterization of [its underlying] decision as
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engaging in fact-finding.” The BIA explained that “[i]nstead, [it had] exercised
[its] de novo review authority to determine whether the facts, as found by the
Immigration Judge, reflect a situation that rises to the level of exceptional and
extremely unusual hardship.”
On May 2, 2019, Perez Aguilar filed his petition with this Court seeking
review of the BIA’s April 3, 2019 decision.
II. JURISDICTION
The Attorney General has the discretion to cancel removal of a non-
permanent alien who is inadmissible or removable from the United States if the
alien establishes, among other requirements, that removal would result in
“exceptional and extremely unusual hardship” to a qualifying relative who is a
U.S. citizen or lawful permanent resident. INA § 240A(b)(1)(D), 8 U.S.C.
§ 1229b(b)(1)(D); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir.
2006). This Court lacks jurisdiction to review the BIA’s discretionary
determinations under the INA, including the determination that an alien does not
satisfy the exceptional and extremely unusual hardship standard for cancellation of
removal. INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B); Martinez, 446 F.3d at
1221-22. Notwithstanding the jurisdiction-stripping provisions of INA
§ 242(a)(2), 8 U.S.C. § 1252(a)(2), this Court retains jurisdiction to the extent an
alien’s petition raises a constitutional claim or question of law. INA
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§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); see also Alvarez Acosta v. U.S. Att’y
Gen., 524 F.3d 1191, 1193, 1197 (11th Cir. 2008). 1
We ordinarily have jurisdiction to review the denial of a motion to reopen or
to reconsider. See Kucana v. Holder, 558 U.S. 233, 249-53, 130 S. Ct. 827, 838-40
(2010) (concluding that INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B) does not
strip courts of jurisdiction to review denials of motions to reopen or reconsider
made pursuant to 8 C.F.R. § 1003.2). However, when review of the underlying
order is barred by the INA’s jurisdiction-stripping provisions, we also lack
“jurisdiction to entertain an attack on that order mounted through” a motion to
reopen or motion for reconsideration. See Patel v. U.S. Att’y Gen., 334 F.3d 1259,
1261-62 (11th Cir. 2003); see also Butalova v. U.S. Att’y Gen., 768 F.3d 1179,
1182-83 (11th Cir. 2014); Guzman-Munoz v. U.S. Att’y Gen., 733 F.3d 1311,
1314 (11th Cir. 2013).
Here, Perez Aguilar’s motion sought reconsideration of the BIA’s decision
reversing the IJ’s determination that Perez Aguilar had shown that his removal
would cause his three U.S.-born children to suffer exceptional and extremely
unusual hardship. Because whether Perez Aguilar had shown the requisite
hardship was a discretionary decision not subject to review, we lack jurisdiction to
1
This Court reviews de novo its subject matter jurisdiction over a petition for review.
Martinez, 446 F.3d at 1221.
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review the denial of Perez Aguilar’s motion to reconsider that determination. See
Martinez, 446 F.3d at 1221; Patel, 334 F.3d at 1261-62.
Perez Aguilar argues that Patel involved another subsection of 8 U.S.C.
§ 1252(a)(2)’s jurisdiction-stripping provision, namely the criminal-alien provision
of INA § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C), rather than the discretionary-
denials provision of INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). Perez
Aguilar’s attempts to distinguish Patel are unavailing, however, because this Court
has applied Patel to conclude INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), bars
review of the denial of a motion to reopen a discretionary denial of cancellation of
removal. See Guzman-Munoz, 733 F.3d at 1312, 1314 (involving special
cancellation of removal as a battered spouse under INA § 240A(b)(2), 8 U.S.C.
§ 1229b(b)(2)).
Thus, we dismiss Perez Aguilar’s petition to the extent Perez Aguilar argues
that the BIA abused its discretion in refusing to reconsider its hardship
determination.
III. LEGAL CLAIMS
Perez Aguilar’s petition claims that he raises a legal question—whether the
BIA’s reconsideration ruling was correct when it said it had applied the proper
standard of review in reversing the IJ’s hardship determination. Perez Aguilar
contends that the BIA got it wrong and that, in its underlying August 2, 2018
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decision, the BIA impermissibly reviewed the IJ’s findings of fact de novo rather
than for clear error, in violation of 8 C.F.R. § 1003.1(d)(3). See Jeune v. U.S.
Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016) (explaining that “[a]n argument
that the agency applied the wrong legal standard in making a determination
constitutes a legal question” which this Court has jurisdiction to review de novo).
The BIA did not err in concluding it had applied the correct standard of
review in its August 2, 2018 decision. Under 8 C.F.R. § 1003.1(d)(3), the BIA
reviews factual findings for clear error and “questions of law, discretion, and
judgment and all other issues in appeals from decisions of immigration judges de
novo.” 8 C.F.R. § 1003.1(d)(3)(i)-(ii); see Zhu v. U.S. Att’y Gen., 703 F.3d 1303,
1314 (11th Cir. 2013).
The BIA’s August 2, 2018 order explicitly stated the correct standard of
review under § 1003.1(d)(3). As the BIA explained in denying Perez Aguilar’s
reconsideration motion, the BIA had not engaged in fact-finding, but rather had
“exercised [its] de novo review authority to determine whether the facts, as found
by the Immigration Judge, reflect a situation that rises to the level of exceptional
and extremely unusual hardship.” Accordingly, Perez Aguilar’s legal claim as to
the denial of his motion for reconsideration lacks merit.
Although Perez Aguilar couches his claim as one of “legal error” in the
BIA’s reconsideration ruling, much of his brief takes issue with the BIA’s
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underlying August 2, 2018 decision reversing the IJ’s hardship determination and
argues that when the facts are properly construed and weighed, it is clear that he
showed the requisite hardship. Perez Aguilar essentially makes “garden-variety
abuse of discretion” arguments that do not constitute a legal question over which
this Court has jurisdiction. See Alvarez Acosta, 524 F.3d at 1196-67 (explaining
that this Court lacks jurisdiction to review “garden-variety abuse of discretion”
arguments about how the BIA weighed the facts in the record even when framed as
questions of law).2
Perez Aguilar’s brief also suggests in passing that the BIA’s reconsideration
ruling may have violated his procedural due process right to “fundamentally fair
proceedings.” Even if this brief comment were sufficient to raise the due process
issue for appellate review, we would not have jurisdiction to entertain it. Perez
Aguilar’s due process claim is not colorable because, as Perez Aguilar concedes,
he does not have a constitutionally protected interest in discretionary forms of
relief. See Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008)
(concluding that because an alien has no constitutionally protected interest in
2
To the extent Perez Aguilar’s petition claims legal error in the BIA’s underlying August
2, 2018 decision reversing the IJ, we lack jurisdiction to review this claim because Perez
Aguilar’s May 2, 2019 petition for review is timely only as to the BIA’s April 3, 2019 denial of
his motion for reconsideration. See INA § 242(b)(1), 8 U.S.C. § 1252(b)(1) (requiring the
petition for review to be filed within 30 days after the date of the final order of removal); Dakane
v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (concluding that statutory period
for filing a petition for review is mandatory and jurisdictional and is not tolled by the filing of a
motion to reopen or reconsider).
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purely discretionary forms of relief, the alien cannot establish a due process
violation based on the BIA’s decision denying that relief); Arias v. U.S. Att’y
Gen., 482 F.3d 1281, 1284 (11th Cir. 2007) (stating that for this Court to possess
jurisdiction pursuant to the constitutional claim exception in INA § 242(a)(2)(D), 8
U.S.C. § 1252(a)(2)(D), the petitioner “must allege at least a colorable
constitutional violation”).
For all these reasons, we dismiss Perez Aguilar’s petition for lack of
jurisdiction to the extent he claims the BIA abused its discretion in denying his
motion for reconsideration. We deny his petition to the extent he claims the BIA
committed legal error in denying his motion for reconsideration.
PETITION DISMISSED IN PART AND DENIED IN PART.
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