Eduardo Briones Alvarez v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 10, 2019
• Docket: 18-15240
• Status: Unpublished

Opinion

Case: 18-15240 Date Filed: 10/10/2019 Page: 1 of 6

` [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15240 Non-Argument Calendar ________________________

Agency No. A216-027-460

EDUARDO BRIONES ALVAREZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(October 10, 2019)

Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: Case: 18-15240 Date Filed: 10/10/2019 Page: 2 of 6

Eduardo Briones Alvarez seeks review of the Board of Immigration

Appeals’ decision affirming the Immigration Judge’s denial of his application for

cancellation of removal. In his petition, Alvarez asserts that the agency violated

his due process rights by assigning substantial weight to a police report indicating

that he had provided fraudulent identification documents to law enforcement.

Under the Immigration and Nationality Act, we lack jurisdiction to review the

Board’s decision to grant or deny discretionary applications for cancellation of

removal unless (as relevant here) the petitioner raises a genuine constitutional

claim or question of law. See 8 U.S.C. § 1252(a)(2)(B), (D). Because Alvarez

failed to raise a colorable legal question or constitutional issue on appeal, we

dismiss his petition for lack of jurisdiction.

I

Alvarez is a native and citizen of Mexico. He entered the United States in

2005 without inspection and has continuously remained in the country since. After

several arrests and convictions for traffic violations, the Department of Homeland

Security served Alvarez with a Notice to Appear, charging him as removable

pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) for being present in the United States

without being admitted or paroled after inspection by an Immigration Officer.

Alvarez admitted to the allegations in the Notice and conceded removability. He

then applied for a cancellation of removal and voluntary departure, which the IJ

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denied (and the Board affirmed) on the basis that Alvarez had failed to establish

good moral character under 8 U.S.C. § 1101(f)’s “catchall” provision. Alvarez

now petitions for review of the Board’s final order.

II

We review our own subject matter jurisdiction de novo. Gonzalez-Oropeza

v. U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). We review the Board’s

legal determinations de novo. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48

(11th Cir. 2010). The Board’s decision is reviewed as the final agency decision,

but we also review the IJ’s decision to the extent that the Board expressly adopts it.

Id. When the Board explicitly agrees with the IJ’s findings, “we review the

decisions of both the Board and the immigration judge as to those issues.” Id. at

948.

The Attorney General has discretion to cancel the removal of a non-

permanent resident alien if that alien (A) has been continuously physically present

for not less than 10 years; (B) has shown good moral character during that period;

(C) lacks certain criminal convictions; and (D) establishes that removal would

cause “exceptional and extremely unusual hardship” to a qualifying relative. 8

U.S.C. § 1229b(b). Several classes of persons are deemed not to be of good moral

character per se, see 8 U.S.C. § 1101(f), but the statute also provides a “catchall”

provision which explains that failure to fall within one of these classes doesn’t

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preclude a finding that the person is not of good moral character for other reasons,

id.; Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1210 (11th Cir. 2012).

Under the INA’s discretionary-decision bar, we lack jurisdiction to review

the Board’s decision to grant or deny discretionary applications for cancellation of

removal. See 8 U.S.C. § 1252(a)(2)(B); Gonzalez-Oropeza, 321 F.3d at 1332–33.

The Board’s determination that a person lacks good moral character under the

“catchall provision” is a discretionary decision. Jimenez-Galicia, 690 F.3d at

1210. We do, however, retain jurisdiction to review questions of law and

constitutional claims regarding discretionary determinations. See 8 U.S.C. §

1252(a)(2)(D). A question of law or constitutional claim must be “genuine,” and

“we must look hard at Petitioner’s actual arguments—not just his description of his

claims—to determine whether we have jurisdiction.” Jimenez-Galicia, 690 F.3d at

1209, 1211; see also Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1197 (11th

Cir. 2008) (noting that constitutional claims must be “non-frivolous”). While a

question of law requires “the application of an undisputed fact pattern to a legal

standard,” a discretionary decision “requires an adjudicator to make a judgment

call.” Bedoya-Melendez v. U.S. Att’y Gen., 680 F.3d 1321, 1324 (11th Cir. 2012)

(citations omitted).

Here, the agency made the discretionary decision that Alvarez failed to

establish good moral character under the catchall provision. In order for this Court

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to have jurisdiction, Alvarez must have raised a colorable legal question or

constitutional issue in his petition. See 8 U.S.C. § 1252(a)(2)(D). He didn’t. In

his brief, Alvarez explicitly argues that the Board improperly “gave substantial

weight to [a] one-sided narrative of the police report notwithstanding the consistent

testimony of Petitioner denying any wrongdoing.” Although Alvarez states that

the arrest report was “impermissible hearsay,” he doesn’t cite to any precedent in

support of his argument. And in fact, we have expressly held (as Alvarez concedes

in his brief) that police reports, though hearsay, are admissible in administrative

immigration proceedings. Garces v. U.S. Atty. Gen., 611 F.3d 1337, 1349 (11th

Cir. 2010). So, because we have already settled the question of the admissibility of

police reports in immigration proceedings, Alvarez has arguably raised a legal

question, but it isn’t a colorable one. Stated differently, although Alvarez attempts

to dress his appeal as a due process claim, “[a] petitioner may not create the

jurisdiction that Congress chose to remove simply by cloaking an abuse of

discretion argument in constitutional garb.” Arias v. U.S. Att’y Gen., 482 F.3d

1281, 1284 (11th Cir. 2007) (quoting Torres-Aguilar v. INS, 246 F.3d 1267, 1271

(9th Cir. 2001)).

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III

We lack jurisdiction to review Alvarez’s petition because he failed to raise a

colorable legal question or constitutional issue on appeal. Accordingly, we dismiss

his petition.

PETITION DISMISSED.