Alvaro Vazquez-Pulido v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Alvaro Uriel Vazquez-Pulido. Decision: Dismissed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 02/21/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11279
Non-Argument Calendar
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Agency No. A200-683-434

ALVARO URIEL VAZQUEZ-PULIDO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 21, 2017)
Before MARTIN, FAY and ANDERSON, Circuit Judges.
PER CURIAM:

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Alvaro Uriel Vazquez-Pulido petitions for review of the Board of
Immigration Appeals (“BIA”) order affirming the denial by the immigration judge
(“IJ”) of his application for cancellation of removal. We dismiss the petition for
lack of jurisdiction.
I. BACKGROUND
Vazquez-Pulido, a native and citizen of Mexico, illegally entered the United
States by walking across the international border near Nogales, Arizona, on April
30, 2000. Vazquez-Pulido was arrested for domestic violence on March 22, 2006,
and subsequently pled guilty to violating Ala. Code § 13A-6-132, domestic
violence in the third degree. The Department of Homeland Security Immigration
and Customs Enforcement (“ICE”) located Vazquez-Pulido while he was
incarcerated in Clanton, Alabama, after he was arrested on May 31, 2010, for his
failure to appear in connection with his domestic violence conviction.
In June 2010, ICE served Vazquez-Pulido with a Notice to Appear and
charged him as removable under the Immigration and Nationality Act (“INA”) §
212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), for being in the United States without
being admitted or paroled. After a change of venue, Vazquez-Pulido appeared
before an IJ, confirmed the charge of removal had been sustained, and sought
cancellation of removal. In his application for cancellation of removal, Vazquez-

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Pulido stated his removal would result in exceptional and extremely unusual
hardship to his spouse and two children, all of whom were United States citizens.
At the merits hearing, Vazquez-Pulido testified he continuously had
remained in the United States since his entry in April 2000. He began working as a
construction worker upon entry and currently was working as a remodeler for his
mother-in-law. He was active in his children’s lives, took them to school, helped
them with homework, and played with them. He testified he did not know whether
he would be able to find a job if he was deported back to Mexico. He had
contacted friends in Mexico, who told him it was hard to find work because
employers required the education equivalent of a high school diploma. He did not
know whether he would take his family to Mexico if he was deported and whether
he could support his family even if he secured employment. He confirmed his
children did not have health problems, and his relatives live in Mexico.
The IJ denied the application for cancellation of removal, because VazquezPulido failed to establish (1) he met the continuous physical presence requirement
and (2) his removal would result in exceptional and extremely unusual hardship to
his two children. On appeal, the BIA remanded the case to the Immigration Court
for further consideration of the continuous-physical-presence claim and a complete
analysis of the hardship claim. On remand, a second IJ fully examined VazquezPulido’s claims and found he had failed to demonstrate he had met the continuous3

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physical-presence requirement; even presuming he had met that eligibility
requirement, he had failed to meet his burden of proving his children would suffer
an exceptional and extremely unusual hardship if he was removed.
Vazquez-Pulido appealed the IJ’s remand decision. The BIA conducted a de
novo review and dismissed Vazquez-Pulido’s appeal. The BIA agreed VazquezPulido did not establish any of his qualifying relatives would face exceptional and
extremely unusual hardship upon his removal to Mexico. The BIA noted: (1)
Vazquez-Pulido was undecided about whether his two children would return to
Mexico with him if he was removed; (2) even if removed, his two children would
have access to education in Mexico; (3) the children were in good health; (4)
Vazquez-Pulido was in good health; and (5) Vazquez-Pulido had a skill set to
secure employment in Mexico. The BIA also noted the children were young;
Vazquez-Pulido’s relatives lived in Mexico, which would ease the transition; and
the record did not establish the children would suffer exceptional and extremely
unusual hardship if relocated to Mexico. Alternatively, the BIA determined, if the
children remained in the United States, Vazquez-Pulido’s wife could provide for
them, and her extended family might offer additional support.
On petition for review, Vazquez-Pulido argues the BIA erred in interpreting
and applying the INA provision regarding credibility findings. Because there was
no adverse credibility finding, the BIA should have accepted his testimony as true.
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Therefore, the BIA should have found his uncontroverted testimony established the
requisite hardship for cancellation of removal. He asserts the BIA failed to
consider salient facts; consequently, the BIA did not properly conduct a
cumulative-hardship analysis. He also contends the BIA and IJ were
fundamentally unfair in discarding his testimony and documentary evidence;
absent controverting evidence, his testimony and evidence established he met the
requirements for cancellation of removal.
II. DISCUSSION
“When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopted the IJ’s decision.” Rodriguez v. U.S. Att’y
Gen., 735 F.3d 1302, 1308 (11th Cir. 2013). We review jurisdictional questions,
legal issues, and constitutional claims de novo. Rivas v. U.S. Att’y Gen., 765 F.3d
1324, 1328 (11th Cir. 2014), cert. denied, Rivas v. Holder, 135 S. Ct. 1414 (2015).
We are precluded from reviewing certain discretionary decisions pursuant to INA §
242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). See INA § 242(a)(2)(B), 8 U.S.C. §
1252(a)(2)(B). The INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B), jurisdictional
bar provides we lack jurisdiction to review any judgment regarding cancellation of
removal, or any other decision or action (other than asylum) the INA leaves to the
discretion of the Attorney General or the Secretary of Homeland Security. Id.; see
also Kucana v. Holder, 558 U.S. 233, 247, 130 S. Ct. 827, 836-37 (2010)
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(recognizing the jurisdiction-stripping provisions of the INA bar “review of
discretionary decisions only when Congress itself set out the Attorney General’s
discretionary authority in the statute”). Notwithstanding the discretionary-decision
bar, we retain jurisdiction to review constitutional challenges or questions of law
raised in a petition for review. INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); see
also Butalova v. U.S. Att’y Gen., 768 F.3d 1179, 1183 (11th Cir. 2014).
An alien, however, cannot invoke INA § 242(a)(2)(D), 8 U.S.C. §
1252(a)(2)(D), to give us jurisdiction to consider “constitutional” claims that mask
a claim of abuse of discretion. See Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284
(11th Cir. 2007). Similarly, an alien cannot present a challenge to evidentiary
sufficiency as a meaningful question of law. Garcia v. Att’y Gen. of U.S., 329 F.3d
1217, 1222 (11th Cir. 2003). A “garden-variety abuse of discretion argument” the
BIA or IJ failed to weigh properly the factual scenario the alien presented does not
present a legal question. Jimenez-Galicia v. U.S. Att’y Gen., 690 F.3d 1207, 121011 (11th Cir. 2012) (citation and internal quotation marks omitted).
An alien may cancel his removal from the United States and adjust his status
to lawful permanent resident if he (1) has continuous physical presence in the
United States for ten years, (2) is of good moral character, (3) has not committed
one of a number of specified crimes, and (4) shows his qualifying relative will
suffer “exceptional and extremely unusual hardship” upon his removal. INA §
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240A(b), 8 U.S.C. § 1299b(b). Whether the requisite hardship has been shown is a
discretionary decision we cannot review. See Gonzalez-Oropeza v. U.S. Att’y
Gen., 321 F.3d 1331, 1332-33 (11th Cir. 2003).
Because the BIA issued its own opinion and did not expressly adopt any
portion of the IJ’s decision, we review only the BIA’s decision. Rivas, 765 F.3d at
1328. To the extent Vazquez-Pulido challenges the IJ’s finding on continuing
physical presence, that issue is not before this court, because the BIA did not reach
it. See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Although
Vazquez-Pulido argued before the BIA he was deprived of due process, his
argument is abandoned because it was not raised in his petition to this court.
Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
The other arguments Vazquez-Pulido raises are barred by the discretionarydecision bar. INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B). Although he frames
his arguments in terms of legal error or fairness concerns, the gravamen of his
arguments is the BIA erred in its weighing of the evidence as to hardship. Arias,
482 F.3d at 1284; Garcia, 329 F.3d at 1222. These evidentiary claims are not
questions of law or constitutional challenges but are abuse-of-discretion
arguments, which we are barred from reviewing. INA § 242(a)(2)(B), 8 U.S.C.
§ 1252(a)(2)(B); INA § 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D); Jimenez-Galicia,

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690 F.3d at 1210-11. Consequently, we lack jurisdiction over Vazquez-Pulido’s
challenges to the BIA decision denying his application for cancellation of removal.
PETITION DISMISSED.

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