Gheorghe Voicu v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 10, 2018
• Docket: 17-14556
• Status: Unpublished

Opinion

Case: 17-14556 Date Filed: 07/10/2018 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14556 Non-Argument Calendar ________________________

Agency No. A073-710-551

GHEORGHE VOICU,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(July 10, 2018)

Before NEWSOM, HULL, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 17-14556 Date Filed: 07/10/2018 Page: 2 of 6

Gheorghe Voicu petitions for review of the Board of Immigration Appeals’

dismissal of his appeal from the Immigration Judge’s denial of his application for

cancellation of removal. Specifically, he challenges the BIA’s discretionary

determination that he failed to show that his daughter would suffer “exceptional

and extremely unusual hardship” if he were removed. We dismiss the petition for

lack of jurisdiction. 1

I

Voicu is a native and citizen of Romania who entered the United States in

1994 on a non-immigrant visa that expired that same year, and he has remained

ever since. His daughter, Michelle Alice Voicu, was born in the United States in

2002.

In 2007, the Department of Homeland Security issued Voicu a notice to

appear, which charged him as removable for overstaying his non-immigrant visa,

in violation of 8 U.S.C. § 1227(a)(1)(B). At a hearing before an IJ, Voicu

conceded removability. He later applied for cancellation of removal under 8

U.S.C. § 1229b(b)(1). Voicu alleged in his application that his removal would

result in “exceptional and extremely unusual hardship” on his daughter, who is a

U.S. citizen. In support of that application, he submitted a report from a clinical

psychologist and psychoanalyst, who concluded that if Voicu’s daughter were

1 We review de novo questions of subject matter jurisdiction. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006). 2 Case: 17-14556 Date Filed: 07/10/2018 Page: 3 of 6

separated from her father, she would develop Separation Anxiety Disorder and

would be deprived of the special education classes available to her in the United

States.

An IJ denied Voicu’s application for cancellation of removal because he

determined that Voicu did not demonstrate that his removal would result in

exceptional and extremely unusual hardship to his daughter. The BIA adopted and

affirmed the IJ’s determination that Voicu failed to establish exceptional and

extremely unusual hardship to his daughter, but remanded because Voicu had not

received proper notice regarding a voluntary departure bond.

On remand, Voicu submitted an updated application for cancellation of

removal. In support of that application, Voicu submitted various documents and

testimony reflecting that his daughter had experienced seizures. The IJ again

concluded that Voicu had failed to demonstrate that his daughter would suffer

extreme and exceptionally unusual hardship as a result of his removal. In

particular, he found that although there was evidence that Voicu’s daughter

suffered from various symptoms and had been taking prescription medicine, there

was no formal diagnosis in the record, and the medicine had been obtained from

Canada and was not prescribed for her. The IJ also noted that while Voicu had

several years to take his daughter for a diagnosis, she was not taken until just a few

weeks before testimony was given in Voicu’s immigration case. He further

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concluded that if Voicu were removed, his daughter could stay in the United States

with her mother, who had been granted a stay of removal.

Voicu appealed that decision to the BIA, and the BIA dismissed the appeal.

The BIA concluded that the IJ had correctly considered and weighed the evidence,

and that the IJ had correctly found that Voicu had not shown medical or

educational issues that rose to the level of exceptional and extremely unusual

hardship. It declined to disturb the IJ’s “determination that the daughter could

remain in the United States with her mother rather than moving to Romania with

her father,” despite the fact that her mother did not have permanent legal status in

the United States. This appeal followed.

II

The Immigration and Nationality Act gives the Attorney General discretion

to cancel the removal of an alien who “demonstrates … exceptional and extremely

unusual hardship to his or her spouse, parent, or child, who is a U.S. citizen or

permanent resident.” Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir.

2006) (citing 8 U.S.C. § 1229b(b)(1)). But under the INA’s discretionary-decision

bar, we lack jurisdiction to review certain discretionary decisions of the BIA,

including orders denying cancellation of removal. 8 U.S.C. § 1252(a)(2)(B)

(preventing courts from reviewing “any judgment regarding the granting of relief

under section … 1229b”). We have specifically held that an “exceptional and

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extremely unusual hardship determination is a discretionary decision not subject to

review.” Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1333 (11th Cir.

2003). We retain jurisdiction to review such a decision only where the petition

presents “colorable” constitutional claims or questions of law. Arias v. U.S. Att’y

Gen., 482 F.3d 1281, 1284 (11th Cir. 2007); see also 8 U.S.C. § 1252(a)(2)(D).

But we do not have jurisdiction “to consider ‘garden-variety abuse of discretion’

arguments about how the BIA weighed the facts in the record,” even if couched as

a legal question. Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1210–11

(11th Cir. 2012) (quoting Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d 1191, 1196–

97 (11th Cir. 2008)); see also Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 549–50

(11th Cir. 2011).

In his brief to this Court, Voicu argues that “[t]he IJ and the BIA committed

legal error in their findings of fact that [his] U.S. citizen daughter was not

diagnosed with epilepsy,” and that “[t]he IJ and the BIA committed legal error

when they held that [he] did not meet his burden of establishing exceptional and

extremely unusual hardship ….” Br. of Appellant at 8, 14. Those arguments,

although couched in terms of “legal error,” merely attempt to challenge the BIA’s

finding that Voicu’s daughter would not suffer exceptional and extremely unusual

hardship if he were removed, and therefore cannot be reviewed by this Court. See

Alhuay, 661 F.3d at 550; Gonzalez-Oropeza, 321 F.3d at 1333. Voicu also argues

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that the BIA failed to give “reasoned consideration” to his claims, Br. of Appellant

at 17, but that is merely a “garden variety abuse of discretion” argument, which we

do not have jurisdiction to consider. Jimenez-Galicia, 690 F.3d at 1210–11.

Accordingly, we dismiss the petition for lack of jurisdiction.

DISMISSED.