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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11147
Non-Argument Calendar
____________________
HECTOR ZAMUNDIO-ALUAREZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A200-276-565
____________________
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2 Opinion of the Court 21-11147
Before JILL PRYOR, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Petitioner Hector Zamudio-Alvarez1, a native and citizen of
Mexico, seeks review of the final order by the Board of Immigra-
tion Appeals (the “BIA”) denying his application for cancellation of
removal under INA § 240A(b), 8 U.S.C. § 1229b(b). As discussed
below, this Court lacks jurisdiction to review the BIA’s order deny-
ing Petitioner’s application. Accordingly, we dismiss Petitioner’s
appeal.
BACKGROUND
Petitioner, a native and citizen of Mexico, claims he entered
the United States in January 2001 in Arizona. It is undisputed that
Petitioner entered without inspection. In June 2011, the Depart-
ment of Homeland Security (“DHS”) served Petitioner with a no-
tice to appear in removal proceedings. The notice charged Peti-
tioner with being removable as an alien present in the United States
without being admitted or paroled.
Appearing before the IJ, Petitioner admitted the allegations
in the notice to appear and conceded removability. However, Pe-
titioner filed an application for cancellation of removal pursuant to
1 Our docket refers to Petitioner as “Hector Zamundio-Aluarez” but we refer
to him in this opinion by the name that appears on his birth certificate, “Hector
Zamudio-Alvarez.”
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21-11147 Opinion of the Court 3
8 U.S.C. § 1229b(b), which authorizes cancellation when the re-
moval of a deportable individual who has been continuously pre-
sent in the United States for ten years would cause “exceptional and
extremely unusual hardship” to a qualifying relative in the United
States, assuming certain other requirements are met. Petitioner
stated in his application that he satisfied the continuous presence
requirement because he had lived in the United States since 2001
and that his removal would cause extreme hardship for his children
Aron Zamudio Frausto and Jared Zamudio Cortes, who are United
States citizens and who at the time of Petitioner’s application were
eight and four years old, respectively. In support of his application,
Petitioner produced birth certificates for Aron and Jared, medical
records indicating that Jared has a congenital condition in his left
ear called cholesteatoma that had required surgery and treatment,
tax documents, and letters of support, among other items.
The IJ held a hearing on Petitioner’s application in Septem-
ber 2017. Petitioner, the sole witness at the hearing, testified that
he entered the United States in January 2001 in Arizona. To estab-
lish Petitioner’s ten-year continuous presence in the United States,
Petitioner’s attorney questioned him extensively about whether he
had left the United States since his original entry in 2001. In his
initial application for cancellation of removal, Petitioner indicated
that he had “never” left the United States since he first arrived in
2001. But in a revised application, Petitioner stated that he traveled
to Mexico in May 2004 after his grandmother died, returning to the
United States in June 2004, and that he traveled to Mexico again in
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4 Opinion of the Court 21-11147
December 2004, returning to the United States in January 2005,
both times reentering without inspection.
As the IJ noted during the hearing, Petitioner’s testimony re-
garding his travel to Mexico after 2001 was inconsistent and un-
clear. Petitioner testified that he left the United States to visit his
mother in Mexico at least two times after he arrived in the United
States in 2001, but he could not recall the length of his visits and he
variously placed the dates of the visits in 2003, 2004, or 2005. At
some point during his testimony, the IJ referred Petitioner to the
statement in his written application that he had left the United
States and traveled to Mexico in May 2004 for his grandmother’s
funeral and that he had again left the United States and traveled to
Mexico in December 2004 to visit his mother. Petitioner ultimately
revised his testimony to suggest that he either traveled to Mexico
in May 2004 for his grandmother’s funeral and returned in January
2005, or that he visited Mexico for the funeral in May 2004 and re-
turned to the United States within a few weeks, and that he visited
Mexico a second time at the end of 2004 and returned to the United
States in January 2005. The IJ confirmed during the hearing that,
despite Petitioner’s claim to have arrived in the United States in
2001, there were no documents establishing his presence here be-
fore May 2005.
As to the hardship prong of the INA § 1229b(b) analysis, Pe-
titioner testified, consistent with the supporting documents he
filed, that he has two children—Aron (eight years old at the time of
the hearing) and Jared (four years old at the time of the hearing)—
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21-11147 Opinion of the Court 5
who were born in the United States. Petitioner stated that both
children lived with their mothers in the Atlanta area, and that Peti-
tioner did not live with the children or either mother, but that he
saw both children regularly and paid child support in the amount
of $300 for each child per month. Petitioner confirmed that his
children would not go with him to Mexico if he was removed but
would remain in the United States with their mothers. Petitioner
testified that his older child, Aron, took medication for hyperactiv-
ity but was otherwise healthy. He stated that his younger child,
Jared, had an ear condition (cholesteatoma) that had required two
surgeries, and that might require a third surgery and additional
monitoring and treatment.
On cross-examination, Petitioner admitted that he had been
convicted of disorderly conduct in 2011. Petitioner explained that
the victim of his offense was the mother of his older child, Aron,
and that the offense had occurred when Petitioner had grabbed the
victim by the arms and left a mark while the two were having an
altercation about money.
Following the hearing, Petitioner moved to supplement the
record with a letter from his child Jared’s doctor explaining what
cholesteatoma is and how it is treated. The IJ granted the motion
and considered the supplemental evidence from Jared’s doctor. Per
the doctor’s letter, cholesteatoma is an abnormal growth of skin
cells in the middle ear that can damage the bones and other struc-
tures of the ear and that can cause hearing loss and infections if it is
not treated.
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6 Opinion of the Court 21-11147
The IJ subsequently issued a written decision concluding
that Petitioner was not eligible for cancellation of removal, denying
his application, and ordering that he be removed to Mexico. In
support of the decision, the IJ found that Petitioner was not credi-
ble because his testimony at the hearing was inconsistent as to how
many times and when he entered and left the United States and he
failed to provide corroborating evidence. In the alternative, the IJ
determined that Petitioner did not demonstrate ten years of con-
tinuous physical presence in the United States or an exceptional
and extremely unusual hardship to a qualifying relative, both of
which are required to obtain cancellation of removal under
§ 1229b(b).
Specifically as to physical presence, the IJ noted that Peti-
tioner had admitted taking two trips to Mexico in 2004 and 2005,
and that he had presented no evidence showing the length of those
trips, which was necessary to establish his continuous physical pres-
ence in the United States for ten years prior to May 22, 2014, the
date Petitioner filed his application for cancellation. Regarding
hardship, the IJ concluded that Petitioner had failed to show his
children would suffer “exceptional and extremely unusual hard-
ship” if he were removed to Mexico. The IJ emphasized that Aron
and Jared would continue to live with their mothers in the United
States after Petitioner’s removal, that Aron was healthy and doing
well other than medically regulated hyperactivity, that Jared’s doc-
tor had not identified any current problems arising from his cho-
lesteatoma other than the affected hearing on his left side, and that
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21-11147 Opinion of the Court 7
Jared would be able to retain access to Medicaid and any further
needed treatments despite Petitioner’s removal. The IJ acknowl-
edged that Aron and Jared would miss Petitioner but observed that
family separation does not generally establish exceptional and ex-
tremely unusual hardship because separation is frequent in re-
moval proceedings. Further, the IJ noted that Petitioner had not
shown he would be unable to find employment or that he could
not continue to help financially support his children from Mexico.
Petitioner appealed the IJ’s decision to the BIA, which af-
firmed the denial of his application. In accordance with the IJ’s de-
cision, the BIA concluded that Petitioner could not show that his
return to Mexico would result in exceptional and extremely unu-
sual hardship to his children, Aron and Jared. To qualify for relief
under INA § 1229b(b), the BIA explained, Petitioner had to show
that his removal would result in hardship that is “substantially be-
yond” the hardship ordinarily associated with an individual’s or-
dered departure from the United States. Based on Petitioner’s tes-
timony, the BIA concluded that Petitioner had not satisfied that
standard, observing more specifically that Petitioner had “not
demonstrated how his children’s minor health issues would be af-
fected by his removal.” Because it affirmed the IJ on the hardship
prong of the analysis, the BIA did not consider the IJ’s alternative
finding that Petitioner’s testimony was not credible and that he did
not meet his burden to prove the requisite ten years of continuous
physical presence in the United States.
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8 Opinion of the Court 21-11147
Petitioner appeals the BIA’s denial of his application for can-
cellation of removal. In his appellate briefing, Petitioner identifies
one issue for appeal: whether his application should have been de-
nied “for lack of exceptional and extremely unusual hardship?” In
support of his argument that the application should not have been
denied on that ground, Petitioner insists that, contrary to the IJ and
the BIA’s decision, he has satisfied the exceptional and extremely
unusual hardship standard by producing medical evidence con-
cerning his child Aron’s hyperactivity and his child Jared’s ear con-
dition.
DISCUSSION
I. Standard of Review
“When the BIA issues a decision” in a case arising under the
INA, “we review only that decision, except to the extent the BIA
expressly adopts the IJ’s decision.” Lopez v. U.S. Att’y Gen., 504
F.3d 1341, 1344 (11th Cir. 2007). When the BIA expressly adopts
or agrees with the IJ’s decision, we review the IJ’s decision as well
as the BIA’s decision “to the extent of the agreement.” Gonzalez
v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016).
We review our own subject matter jurisdiction de novo.
Blanc v. U.S. Att’y Gen., 996 F.3d 1274, 1277 (11th Cir. 2021). Con-
gress has expressly eliminated our jurisdiction to review a “judg-
ment regarding the granting of relief under section . . . 1229b”—the
provision Petitioner invokes in this case to obtain cancellation of
removal—except to the extent that such review involves
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21-11147 Opinion of the Court 9
“constitutional claims or questions of law.” 8 U.S.C.
§ 1252(a)(2)(B)(i), (D). See also Patel v. Garland, 142 S. Ct. 1614,
1627 (2022) (holding that “[f]ederal courts lack jurisdiction to re-
view facts found as part of discretionary-relief proceedings under”
the provisions enumerated in 8 U.S.C. § 1252(a)(2)(B)(i), including
§ 1229b(b)). Although the Court retains jurisdiction to consider
constitutional claims and questions of law that arise in the context
of a discretionary cancellation of removal decision, such claims
must be “colorable” for the Court to exercise its jurisdiction. See
Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1272 (11th Cir. 2020) (en
banc), aff’d, Patel v. Garland, 142 S. Ct. 1614 (2022). A petitioner
“may not dress up a claim with legal or constitutional clothing to
invoke our jurisdiction.” Id.
II. Analysis
Petitioner’s appeal in this case runs headlong into the juris-
dictional bar applicable to the BIA’s decision to deny discretionary
relief under § 1229b. See 8 U.S.C. § 1252(a)(2)(B)(i). As discussed,
pursuant to § 1229b, the agency is authorized to cancel the removal
and adjust the status of a deportable individual who can establish,
among other things, that his “removal would result in exceptional
and extremely unusual hardship” to a qualifying relative who is a
United States citizen or lawful permanent resident. See 8 U.S.C.
§ 1229b(b)(1). The BIA affirmed the IJ’s denial of Petitioner’s appli-
cation for relief under that provision on the ground that Petitioner
failed to establish that his children, the United States citizens whom
Petitioner claimed as qualifying relatives, would suffer exceptional
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10 Opinion of the Court 21-11147
and extremely unusual hardship if he were removed to Mexico.
The only argument Petitioner asserts on appeal is that the BIA
erred in weighing the evidence as to that issue and that his children
will, in fact, suffer such hardship upon his removal. That is not an
argument we have jurisdiction to consider. See Patel, 142 S. Ct. at
1627.
Indeed, Petitioner entirely ignores the jurisdictional bar in
his appellate briefing. On its face, Petitioner’s argument on appeal
concerns solely the IJ’s and the BIA’s weighing of the evidence con-
cerning the hardship his children allegedly would suffer upon his
removal, and whether such hardship qualifies as exceptional and
extremely unusual. Petitioner frames his claim neither as constitu-
tional nor legal. Rather, he directly challenges the agency’s factual
determination after weighing the evidence that Petitioner’s chil-
dren would not suffer exceptional and extremely unusual hardship
as a result of his removal. As such, Petitioner’s appeal is an unre-
viewable challenge to the denial of cancellation of removal, and it
must be dismissed. See id.
CONCLUSION
For the foregoing reasons, we DISMISS Petitioner’s appeal
for lack of jurisdiction.
PETITION DISMISSED