Francisco Francisco-Pedro v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 3, 2020
• Docket: 20-11474
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11474 Non-Argument Calendar ________________________

Agency No. A206-471-961

FRANCISCO FRANCISCO-PEDRO,

Petitioner,

versus

UNITED STATES ATTORNEY GENERAL,

Respondent. ________________________

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

(December 3, 2020)

Before MARTIN, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Francisco Francisco-Pedro, a native and citizen of Guatemala, seeks review

of a Board of Immigration Appeals decision affirming denial of his application for

cancellation of removal. Francisco-Pedro argues that the Immigration Judge USCA11 Case: 20-11474 Date Filed: 12/03/2020 Page: 2 of 5

erroneously concluded that he had failed to establish that his removal would cause a

qualifying relative to suffer an exceptional and extremely unusual hardship. Because

Francisco-Pedro has not argued any constitutional or legal error, only a discretionary

one, we lack jurisdiction over his petition. Upon consideration, the petition is

DISMISSED.

BACKGROUND

We presume familiarity with the factual and procedural history and describe

it below only to the extent necessary to address the issues raised in this appeal.

The Department of Homeland Security issued a notice to appear to Francisco-

Pedro, charging that he was removable because he was present in the country without

having been admitted or paroled and without a valid entry document. Francisco-

Pedro sought to avoid removal by filing an application for cancellation of removal

and adjustment of status. He argued that his removal would cause his citizen son,

now sixteen, to suffer exceptional and extremely unusual hardship from his father’s

removal. At a preliminary hearing, Francisco-Pedro admitted to the Department’s

allegations and conceded he was removable as charged.

At the merits hearing, Francisco-Pedro testified that in 2000 he entered the

United States. He was in his mid-teens at the time. His parents and siblings remained

in Guatemala where they are farmers. Soon after entering the United States, he began

living with his partner. They had a son together. Francisco-Pedro’s main concern for

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his son is that he would not have access to the same medical care and educational

opportunities in Guatemala. Francisco-Pedro testified that his son is a good student.

He also testified that his son sometimes gets sick but has no specific medical

problems.

On direct examination, Francisco-Pedro testified that, if removed, he would

not bring his son and partner with him to Guatemala because he would not be able

to support them, they would not have accommodations, and his son does not speak

much Spanish. On cross-examination, Francisco-Pedro stated that, if removed, he

would take his son and partner with him, but they would experience hardship.

The Immigration Judge denied Francisco-Pedro’s application for cancellation

of removal in a written decision. The Immigration Judge found that Francisco-Pedro,

if removed, would leave his son in the United States. The Immigration Judge also

found that although Francisco-Pedro had been continuously present in the United

States for more than ten years and had good moral character, he had not established

that the emotional or financial toll on his son would rise to the requisite level of

exceptional and unusual hardship. The Board summarily affirmed the decision. This

appeal followed.

DISCUSSION

Francisco-Pedro asks us to revisit the Immigration Judge’s discretionary

determination that he failed to establish that the emotional or financial toll on his

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citizen son would rise to the requisite level of exceptional and unusual hardship. The

government responds that this Court does not have jurisdiction to review an

Immigration Judge’s discretionary decisions. We review our own subject matter

jurisdiction de novo. Jeune v. Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016). When

the Board summarily affirms an Immigration Judge’s decision, the affirmed decision

“becomes the final removal order subject to review.” Sepulveda v. U.S. Att’y Gen.,

401 F.3d 1226, 1230 (11th Cir. 2005).

The Attorney General, in his discretion, may grant cancellation of removal to

an applicant who (1) has been physically present in the United States for at least ten

years, (2) “has been a person of good moral character,” (3) has not been convicted

of certain crimes, and (4) establishes his “removal would result in exceptional and

extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the

United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. §

1229b(b)(1). The Immigration Judge found that Francisco-Pedro met all of these

criteria except for exceptional and extremely unusual hardship to a family member.

This discretionary decision, like all discretionary decisions by the

Department, lies beyond our appellate jurisdiction. 8 U.S.C. § 1252(a)(2)(B)(i). Our

review is limited to constitutional claims and questions of law raised by challenges

to the agency’s decisions. 8 U.S.C. § 1252(a)(2)(D). Section 1252(a)(2)(D) “does

not restore our jurisdiction” where the Board affirms an Immigration Judge’s order

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“due to the petitioner’s failure to demonstrate the requisite hardship.” Alhuay v. U.S.

Att’y Gen., 661 F.3d 534, 549–50 (11th Cir. 2011). “[S]uch challenges are not

constitutional claims or questions of law because what constitutes an ‘exceptional

and extremely unusual hardship’ is itself a discretionary determination.” Id. at 550.

Such is the case here. Francisco-Pedro’s only argument is that we should

review the Immigration Judge’s conclusion that he failed to demonstrate the

requisite level of hardship. He neither argues that the Immigration Judge applied the

wrong legal standard nor that his constitutional rights were violated. As we have

previously held, whether circumstances constitute an exceptional and extremely

unusual hardship is a discretionary determination, over which we have no

jurisdiction.

CONCLUSION

Because we have no jurisdiction over an Immigration Judge’s discretionary

determinations, the petition is DISMISSED.