USCA11 Case: 20-13306 Date Filed: 03/24/2021 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13306
Non-Argument Calendar
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Agency No. A200-969-976
RAMIRO MARTINEZ-SANTOS,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(March 24, 2021)
Before LUCK, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Ramiro Martinez-Santos seeks review of the Board of Immigration Appeals’s
final order affirming the immigration judge’s denial of his application for
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cancellation of removal under Immigration and Nationality Act § 240A(b), 8 U.S.C.
§ 1229b(b). He makes three arguments. He argues (1) that the BIA’s previous
interpretation of “exceptional and extremely unusual hardship” is not based on a
permissible construction of the statute; (2) that Section 1229b(b) violates the Fifth
Amendment’s due process clause by requiring him to establish the hardship of others
and punishing family members for their “own lack of disability, or lack of sickness,
or their own lack of poverty”; and (3) that it violates the Fifth Amendment’s equal
protection clause by focusing solely on the hardship to a qualifying relative as
opposed to the alien himself.
We limit our review to the BIA’s decision, reviewing the immigration judge’s
decision to the extent that the BIA expressly adopts it. Perez-Zenteno v. U.S. Att’y
Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). Issues that the BIA did not reach are
not properly before us. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir.
2016). Issues the petitioner did not raise before the BIA are unexhausted; we lack
jurisdiction to consider them. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Alim v.
Gonzales, 446 F.3d 1239, 1253 (11th Cir. 2006). But “constitutional claims raised
for the first time [in this Court] that address issues beyond the power of the BIA to
address in adjudicating an individual’s case may not require exhaustion.” Bing Quan
Lin v. U.S. Att’y Gen., 881 F.3d 860, 867–68 (11th Cir. 2018); see also Sundar v.
I.N.S., 328 F.3d 1320, 1325 (11th Cir. 2003) (holding that the exhaustion
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requirement applies to claims regarding the BIA’s application of its own precedent
and emphasizing that the claim at issue was “not a constitutional challenge to the
INA itself or a due process claim that could not be resolved by a BIA decision.”
The Attorney General has discretion to grant cancellation of removal to a
nonpermanent resident who shows, among other things, that “removal would result
in exceptional and extremely unusual hardship to the alien’s … child, who is a citizen
of the United States.” INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D). Because
that decision is discretionary, we lack jurisdiction to review it. INA § 242(a)(2)(B),
8 U.S.C. § 1252(a)(2)(B); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1222 (11th
Cir. 2006). But we may review de novo “colorable” constitutional questions about
that provision. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Jeune v. U.S. Att’y
Gen., 810 F.3d 792, 799 (11th Cir. 2016); Patel v. U.S. Att’y Gen., 971 F.3d 1258,
1272 (11th Cir. 2020) (en banc). “A colorable claim need not involve a substantial
violation, but the claim must have some possible validity.” Patel, 971 F.3d at 1275.
Because Martinez-Santos’s argument challenging the BIA’s previous
interpretation of the INA was not exhausted, we cannot reach the merits here.
Martinez-Santos’s two constitutional claims, however, need not be exhausted and
meet the minimal requirements of “colorable” claims; we now turn to the merits of
those arguments.
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First, Martinez-Santos’s substantive-due-process-violation claim fails. We
have held that aliens do not have a constitutionally protected liberty interest in purely
discretionary forms of relief, such as cancellation of removal. Scheerer v. U.S. Att’y
Gen., 513 F.3d 1244, 1253 (11th Cir. 2008).
Second, Martinez-Santos’s equal-protection claim likewise fails. 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 has
the burden of showing that the government regulation at issue is either arbitrary or
unreasonable and is not rationally related to the government’s purpose. Id. at 1229.
But here, the government has a rational basis for requiring an applicant to show that
his removal would result in “exceptional and extremely unusual hardship” to his
children who are citizens or permanent lawful residents. 8 U.S.C. § 1229b(D). For
instance, that requirement helps to ensure that only in the most extreme
circumstances may a deportable alien avoid removal by virtue of his citizen relatives.
Additionally, the statutory distinction between the alien’s hardship and that of his
children serves the purpose of Section 1229b’s unique role in evaluating the exact
closeness and conditions of those familial ties.
For the foregoing reasons, we deny the petition for review.
PETITION DENIED.
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Ramiro Martinez-Santos v. U.S. Attorney General
Combined Opinion