Edgar Lara v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 16, 2020
• Docket: 19-12013
• Status: Unpublished

Opinion

Case: 19-12013 Date Filed: 09/16/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12013 Non-Argument Calendar ________________________

Agency No. A 094-369-555

EDGAR LARA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(September 16, 2020)

Before WILSON, JILL PRYOR, and BRASHER, Circuit Judges.

PER CURIAM: Case: 19-12013 Date Filed: 09/16/2020 Page: 2 of 4

Edgar Lara asks us to review a decision of the Board of Immigration

Appeals denying his motion to reopen his removal proceedings to consider new

evidence of hardship supporting his application for cancellation of removal. We

lack jurisdiction and therefore dismiss the petition.

We review our subject matter jurisdiction de novo. Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). Congress has

precluded review of “any judgment regarding the granting of relief under section

. . . 1229b,” which provides for cancellation of removal, except to the extent that

such review involves “constitutional claims or questions of law.” 8 U.S.C.

§ 1252(a)(2)(B)(i) & (D); id. § 1229b; Patel v. U.S. Att’y Gen., ___ F.3d ___, No.

17-10636, 2020 WL 4873196, at *1 (11th Cir. Aug. 19, 2020) (en banc). Sitting en

banc, we recently adopted an “expansive” interpretation of § 1252(a)(2)(B)(i).

Patel, 2020 WL 4873196, at *1–12. We held that “§ 1252(a)(2)(B)(i) precludes us

from reviewing ‘whatever kind’ of judgment ‘relating to’ the granting of relief

under the five enumerated sections,” including cancellation of removal. Id. at *11.

The term “judgment” includes “all decisions made by the BIA.” Id. at *15.

Though Patel did not concern a denial of a motion to reopen, the BIA’s

denial of Lara’s motion to reopen must fall under the umbrella of our expansive

interpretation of § 1252(a)(2)(B)(i) in Patel. After all, it is a “decision made by the

BIA” “relating to” the granting of relief in the form of cancellation of removal.

2 Case: 19-12013 Date Filed: 09/16/2020 Page: 3 of 4

See Patel, 2020 WL 4873196, at *11, *15. Therefore, we may review the BIA

decision only if Lara raises a constitutional claim or a question of law. See 8

U.S.C. § 1252(a)(2)(D).

He does not. No matter how Lara paints his challenge, at bottom he

disagrees with “the weight of the new evidence,” a phrase that calls to mind a

factual dispute, not a legal one. See Mazariegos v. Office of U.S. Att’y Gen., 241

F.3d 1320, 1323 (11th Cir. 2001) (“We have described the substantial evidence test

[used to review factual determinations] as ‘deferential,’ and have emphasized we

may not ‘re-weigh the evidence’ from scratch.”). To be sure, Lara invokes the

“arbitrary and capricious” standard, which could have feasibly portended a legal

question. But in the end Lara fails to articulate a reviewable legal question.

In any event, Patel also forecloses our review because Lara essentially seeks

to challenge the BIA’s determination that Lara had still failed to show “exceptional

and extremely unusual hardship.” At least one basis for the BIA’s denial was that

“[t]he evidence submitted does not reflect a particular change that would cause

[Lara’s] wife’s hardship to now be considered ‘exceptional and extremely

unusual.’” We held in Patel that § 1252(a)(2)(B)(i) bars review of “all eligibility

determinations for the five enumerated categories of discretionary relief.” 2020

WL 4873196, at *15. And “exceptional and extremely unusual hardship” is one of

the eligibility requirements for cancellation of removal. 8 U.S.C.

3 Case: 19-12013 Date Filed: 09/16/2020 Page: 4 of 4

§ 1229b(b)(1)(D); see Patel, 2020 WL 4873196, at *15 (using that standard in its

discussion of threshold eligibility determinations for discretionary relief). We see

no way to separate review of Lara’s petition from review of the agency’s

“exceptional and extremely unusual hardship” determination. We cannot

determine whether any new evidence was sufficient to warrant the reopening of the

case without examining the original hardship determination. Thus, we conclude

that we lack jurisdiction to review the petition.

PETITION DISMISSED.