Fernando Oliveros Deras v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 29, 2021
• Docket: 20-12042
• Status: Unpublished

Opinion

USCA11 Case: 20-12042 Date Filed: 04/29/2021 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-12042 Non-Argument Calendar ________________________

Agency No. A093-318-690

FERNANDO OLIVEROS DERAS,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(April 29, 2021)

Before WILSON, JORDAN, and GRANT, Circuit Judges.

PER CURIAM: USCA11 Case: 20-12042 Date Filed: 04/29/2021 Page: 2 of 4

Fernando Oliverso Deras seeks review of the Board of Immigration Appeals’

final order affirming an Immigration Judge’s denial of his application for

cancellation of removal under 8 U.S.C. § 1229b(b). The BIA held that Mr. Deras’

application did not warrant discretionary relief, which is a decision over which this

Court lacks jurisdiction to review. See 8 U.S.C. § 1252(a)(2). We therefore dismiss

the petition.

I

Mr. Deras is a native and citizen of Mexico. In September of 2013, the

Department of Homeland Security served him with a notice to appear, in which he

was charged with being removable under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien

present in the United States without having been admitted or paroled; and under 8

U.S.C. § 1182(a)(7)(A)(i)(I), because he sought admission without a proper entry

document. At a removal hearing in January of 2015, Mr. Deras conceded both

charges of removability.

Mr. Deras then sought cancellation of the removal as a non-lawful permanent

resident under 8 U.S.C. § 1229b(b)(1). In March of 2018, the IJ issued a decision

denying cancellation of removal both because Mr. Deras had not shown exceptional

and extremely unusual hardship to his children, who were United States citizens, and

because he did not merit the relief as a matter of discretion. Mr. Deras appealed the

2 USCA11 Case: 20-12042 Date Filed: 04/29/2021 Page: 3 of 4

IJ’s decision, and the BIA upheld the determination that Mr. Deras did not merit

cancellation as a matter of discretion. The BIA determined that it was unnecessary

to address whether Mr. Deras had established sufficient hardship.

Mr. Deras now seeks our review of that BIA decision, and asserts that the BIA

erred in affirming the IJ’s conclusions. He argues that the IJ put undue weight on

his criminal history, which does not include any serious offenses, and that the

positive equities of his case—among them, the need to provide for his children—

outweigh the negative equities. The government argues in response that this Court

lacks jurisdiction over the petition for review because Mr. Deras has not raised any

legal or constitutional claim that would provide jurisdiction. Mr. Deras did not file

a reply brief.

II

We lack jurisdiction to review any order or judgment regarding relief under

certain provisions of the INA, including those concerning cancellation of removal

and adjustment of status. See INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i).

Notwithstanding that jurisdictional bar, we retain jurisdiction to review any petition

that raises a constitutional claim or question of law. See INA § 242(a)(2)(D), 8

U.S.C. § 1252(a)(2)(D).

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Here, the BIA agreed with the IJ’s determination that Mr. Deras’ application

for cancellation of removal did not warrant granting as a matter of discretion. That

discretionary determination is not reviewable, and Mr. Deras’ only argument on

appeal is that the facts of his case merit discretionary relief. See Patel v. Att’y Gen.,

971 F.3d 1258, 1279 (11th Cir. 2020) (en banc) (explaining that we lack jurisdiction

to review factual challenges to a denial of discretionary relief). See also Alhuay v.

U.S. Att’y Gen., 661 F.3d 534, 549-50 (11th Cir. 2011) (“what constitutes an

‘exceptional and extremely unusual hardship’ is itself a discretionary

determination”) (citation omitted). Mr. Deras has not raised any constitutional claim

or question of law that allows for judicial review of the BIA’s order.

III

We dismiss Mr. Deras’ petition because we lack jurisdiction to review it.

PETITION DISMISSED.