Veronica Alonso-Diaz v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 22, 2019
• Docket: 18-13732
• Status: Unpublished

Opinion

Case: 18-13732 Date Filed: 07/22/2019 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13732 Non-Argument Calendar ________________________

Agency No. A205-006-539

VERONICA ALONSO-DIAZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

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

(July 22, 2019)

Before TJOFLAT, JORDAN, and GRANT, Circuit Judges.

PER CURIAM: Case: 18-13732 Date Filed: 07/22/2019 Page: 2 of 7

Veronica Alonso-Diaz, a native and citizen of Mexico, seeks review of a

Board of Immigrations Appeals (“BIA”) decision dismissing her appeal from the

denial of her application for cancellation of removal. Alonso-Diaz argues that the

immigration judge (“IJ”) erred in determining that she was not credible and in

finding that she had not met the ten-year physical-presence requirement for

cancellation of removal. We dismiss the petition for lack of jurisdiction.

I.

Alonso-Diaz entered the United States without admission or parole on an

unknown date. In 2011, the Department of Homeland Security (“DHS”) served

her with a Notice to Appear, which charged her with being removable as an alien

present in the United States without admission or parole. She conceded

removability and applied for cancellation of removal on the ground that her

removal would cause “exceptional and extremely unusual hardship” to her son,

who is a United States citizen. 8 U.S.C. § 1229b(b)(1)(D).

Alonso-Diaz testified at her removal hearing, answering questions posed by

her attorney, counsel for DHS, and the IJ. The IJ found that she was not credible

in light of factual discrepancies in information she provided about her marriage

and residency, contradictions between representations she made in her application

for cancellation of removal and her hearing testimony, and her admission that she

had used her sister’s Social Security number to file her taxes and had falsely

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claimed her nieces and nephews as dependent children on her tax returns. After

giving little or no weight to Alonso-Diaz’s testimony and the conflicting

documentation regarding the duration of her residency in the United States, the IJ

denied her application for cancellation of removal because she had not met her

burden of showing that she had been continuously present in the United States for

ten years. As an alternative ground for denial, the IJ also found that her removal

would not cause exceptional or extremely unusual hardship to a United States

citizen family member. The BIA agreed with the IJ’s findings and dismissed

Alonso-Diaz’s appeal, and this petition for review followed.

II.

Under the Immigration and Nationality Act, the Attorney General has the

discretion to cancel the removal of an alien who, among other things, has been

physically present in this country continuously for at least ten years and has shown

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

immediate family member who is a United States citizen or lawful permanent

resident. 8 U.S.C. § 1229b(b)(1)(A)–(D). We lack jurisdiction to review the

agency’s denial of this discretionary relief, except to the extent that the petitioner

raises constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(B) & (D);

Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 1209 (11th Cir. 2012). Our

jurisdiction is further limited to claims for which “the alien has exhausted all

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administrative remedies available to the alien as of right” by raising the claims

before the BIA. 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463

F.3d 1247, 1250 (11th Cir. 2006).

We are obligated to consider our own jurisdiction as a threshold question.

Madu v. U.S. Att’y Gen., 470 F.3d 1362, 1365 (11th Cir. 2006). Whether we have

subject-matter jurisdiction is a question of law that we decide de novo. Arias v.

U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007).

A.

Alonso-Diaz first contends that, in determining that she had not been present

in the United States for ten years, the IJ failed to give “reasoned consideration” to

the evidence and instead viewed the inconsistencies between various documents

and her testimony in the most negative light. Although she characterizes this claim

as a legal question, her real argument is that the IJ gave too much weight to the

discrepancies in the evidence and too little weight to her hearing testimony when

making his credibility determination, which in turn influenced his conclusion that

she had not been present in the United States as long as she claimed. In

considering whether we have subject-matter jurisdiction, “we must look hard at

Petitioner’s actual arguments—not just [her] description of [her] claims.” Jimenez-

Galicia, 690 F.3d at 1211. A challenge to “the agency’s credibility determination

and the relative weight accorded to the evidence” really is nothing more than “a

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‘garden-variety abuse of discretion argument’ that is insufficient to state a legal

claim over which we have jurisdiction under § 1252(a)(2)(D).” Fynn v. U.S. Att’y

Gen., 752 F.3d 1250, 1253 (11th Cir. 2014) (quoting Alvarez Acosta v. U.S. Att’y

Gen., 524 F.3d 1191, 1196–97 (11th Cir. 2008)).

B.

Next, Alonso-Diaz argues that the IJ misapplied 8 U.S.C. § 1229a(c)(4)(B)

(“Sustaining burden”) by concluding that she did not meet the physical-presence

requirement without first requesting that she provide additional evidence

corroborating her testimony that she had been in the United States since May 2001.

Even if the cited statute could be interpreted to support this argument, we lack

jurisdiction to consider the claim because she did not raise it on appeal to the BIA.

Although she challenged the IJ’s determination that she had not met the ten-year

requirement, she did not argue that the IJ should have requested—or even that she

should have been allowed to submit—supplemental evidence first. “A petitioner

has not exhausted a claim unless he has both raised the ‘core issue’ before the BIA

and also set out any discrete arguments he relies on in support of that claim.”

Jeune v. U.S. Atty. Gen., 810 F.3d 792, 800 (11th Cir. 2016) (internal citations

omitted).

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Because Alonso-Diaz does not raise any legal or constitutional claim for

which she has exhausted her administrative remedies, we dismiss her petition for

lack of jurisdiction.

PETITION DISMISSED.

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JORDAN, Circuit Judge, concurring in the judgment.

The immigration judge and the BIA ruled, in the alternative, that Ms. Alonso-Diaz failed

to show that her removal would cause extreme hardship to her child, who is a U.S. citizen. I would

dismiss Ms. Alonso-Diaz’s petition on the ground that this ruling is unreviewable, and not reach

the other issues. See 8 U.S.C. § 1252(a)(2)(B)(i); Martinez v. U.S. Atty. General, 446 F.3d 1219,

1221-23 (11th Cir. 2006).