Norma A. Estrada v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 24, 2018
• Docket: 17-13357
• Status: Unpublished

Opinion

Case: 17-13357 Date Filed: 05/24/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13357 Non-Argument Calendar ________________________

Agency No. A087-649-781

NORMA A. ESTRADA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(May 24, 2018)

Before TJOFLAT, MARTIN and JILL PRYOR, Circuit Judges.

PER CURIAM: Case: 17-13357 Date Filed: 05/24/2018 Page: 2 of 4

Norma Estrada petitions for review of the Board of Immigration Appeals’

(“BIA”) order denying her motion to reopen removal proceedings. We lack

jurisdiction to review the BIA’s decision and therefore dismiss Estrada’s petition.

Estrada applied for cancellation of removal under Immigration and

Nationality Act (“INA”) § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), which grants the

Attorney General discretion to cancel a nonpermanent resident’s removal if she

shows that, among other things, she “has been a person of good moral character”

and her “removal would result in exceptional and extremely unusual hardship” to

her lawfully present child. The Immigration Judge (“IJ”) denied Estrada’s

application, citing Estrada’s lack of good moral character and failure to prove her

child would suffer exceptional and extremely unusual hardship if Estrada were

removed. The BIA agreed with the IJ’s character determination and dismissed

Estrada’s appeal without reviewing the IJ’s hardship determination. Estrada then

moved the BIA to reopen her removal proceedings under INA § 240(c)(7)(A)–(B),

8 U.S.C. § 1229a(c)(7)(A)–(B), based on new evidence that a doctor had begun

evaluating her daughter and believed her daughter might suffer from

“Autism/Asperger’s, ADD, Anxiety, and Dyslexia.”1 The BIA considered this

1 Estrada’s daughter had previously been diagnosed with “a learning disability which affected her speech and presented difficulties for her in communicating and writing.” Evidence of that learning disability was presented to the IJ. It is unclear how the pertinent evidence in this case, the daughter’s pending diagnoses, relates to Estrada’s good moral character. 2 Case: 17-13357 Date Filed: 05/24/2018 Page: 3 of 4

evidence “inconclusive” because the doctor’s evaluation was still in progress and

accordingly denied her motion. Estrada appeals this denial, arguing that the new

evidence was material to her case and could affect the outcome of her application

for cancellation of removal.

Under INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), we generally lack

jurisdiction to review discretionary BIA judgments granting or denying the

cancellation of removal pursuant to INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1).

Guzman-Munoz v. U.S. Attorney Gen., 733 F.3d 1311, 1313–14 (11th Cir. 2013).

Where a jurisdiction-stripping provision deprives us of jurisdiction to entertain the

appeal of a final order of removal, it also deprives us of jurisdiction to entertain an

attack on that order mounted through the filing of a motion to reopen. Id.

Jurisdictional bar notwithstanding, we may consider constitutional claims

and questions of law raised in a petition for review. INA § 242(a)(2)(D), 8 U.S.C.

§ 1252(a)(2)(D). Estrada, however, contends only that the BIA abused its

discretion in determining that her new evidence did not warrant the reopening of

her removal proceedings. A petitioner cannot create jurisdiction by framing an

abuse of discretion as a constitutional claim or other question of law. Jimenez-

Galicia v. U.S. Attorney Gen., 690 F.3d 1207, 1210–11 (11th Cir. 2012). The

cases Estrada cites that purport to hold otherwise relate neither to cancellation-of-

removal decisions under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), nor to the

3 Case: 17-13357 Date Filed: 05/24/2018 Page: 4 of 4

jurisdictional bar of INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). 2 We lack

jurisdiction to entertain Estrada’s petition.

PETITION DISMISSED.

2 See, e.g., Li v. U.S. Attorney Gen., 488 F.3d 1371 (11th Cir. 2007); Abdi v. U.S. Attorney Gen., 430 F.3d 1148 (11th Cir. 2005). 4