Case: 19-11274 Date Filed: 12/19/2019 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11274
Non-Argument Calendar
________________________
Agency No. A094-376-744
NICOLAS CABALLERO-PINEDA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(December 19, 2019)
Before MARTIN, ROSENBAUM, and TJOFLAT, Circuit Judges.
PER CURIAM:
Case: 19-11274 Date Filed: 12/19/2019 Page: 2 of 4
Nicolas Caballero-Pineda, a native and citizen of El Salvador, challenges
whether the Board of Immigration Appeals (“BIA”) applied the appropriate legal
standard in affirming the Immigration Judge’s (“IJ”) discretionary denial of his
application for special-rule cancellation of removal pursuant to the Nicaraguan
Adjustment and Central American Relief Act (“NACARA”).1 Because we
determine that the BIA applied the appropriate legal standard, we dismiss his
petition.
In its review, the BIA determined that the IJ erred by applying the incorrect
hardship standard in evaluating Caballero-Pineda’s eligibility for NACARA
relief, 2 a finding that neither party disputes. The BIA, however, affirmed the
denial of NACARA relief based on its de novo review of the IJ’s decision. The
BIA, like the IJ, was unpersuaded that Caballero-Pineda’s equities were
outweighed by his lack of candor throughout the process and affirmed the IJ’s
1
The BIA also affirmed the IJ’s denial of Caballero-Pineda’s applications for
cancellation of removal, asylum, withholding of removal, and Convention Against Torture relief.
Caballero-Pineda does not challenge those holdings in this appeal.
2
A NACARA cancellation applicant must prove that the applicant: “(1) is not
inadmissible for having committed a crime of moral turpitude; (2) has been physically and
continuously present in the United States for at least the seven years before applying for special-
rule cancellation; (3) has been a person of good moral character during those seven years; and (4)
establishes that removal would result in extreme hardship to the alien or to the alien’s spouse,
parent, or child, who is a citizen or legal permanent resident of the United States.” Jimenez-
Galicia v. U.S. Att’y Gen.,
690 F.3d 1207, 1208 n.1 (11th Cir. 2012). There is a rebuttable
presumption that a NACARA cancellation applicant has satisfied the extreme hardship standard,
which the IJ failed to apply. See 8 C.F.R. § 1240.64(d)(1) (“An applicant . . . shall be presumed
to have established that deportation or removal from the United States would result in extreme
hardship to the applicant or to his or her spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.”).
2
Case: 19-11274 Date Filed: 12/19/2019 Page: 3 of 4
discretionary decision to deny relief. Caballero-Pineda argues that the BIA erred
by affirming the IJ’s denial of his petition because the IJ did not deny his petition
on discretionary grounds, but rather denied his petition based on a misapplication
of the hardship standard.
Before considering the merits of a petition, we “must first consider whether
we have subject matter jurisdiction to hear the petition at all.” Resendiz–Alcaraz v.
U.S. Att’y Gen.,
383 F.3d 1262, 1266 (11th Cir. 2004). Section 202(f) of
NACARA contains a jurisdiction-stripping provision that provides that “[a]
determination by the Attorney General as to whether the status of any alien should
be adjusted under this section is final and shall not be subject to review by any
court.” Ortega v. U.S. Att’y Gen.,
416 F.3d 1348, 1350 (11th Cir. 2005).
Therefore, we generally lack jurisdiction to review a decision as to whether an
applicant’s status should be adjusted under NACARA. Frech v. U.S. Att’y Gen.,
491 F.3d 1277, 1280 (11th Cir. 2007). We, however, retain jurisdiction to review
all “constitutional claims or questions of law raised upon a petition for review.” 8
U.S.C. § 1252(a)(2)(D); Frech,
491 F.3d 1281. We can only review Caballero-
Pineda’s petition for review if he presents a genuine, colorable constitutional or
legal claim.
Jimenez-Galicia, 690 F.3d at 1209. Caballero-Pineda claims that the
BIA applied the wrong legal standard, which is a question of law that we have
3
Case: 19-11274 Date Filed: 12/19/2019 Page: 4 of 4
jurisdiction to review. Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 799 (11th Cir.
2016).
The BIA did not apply the wrong legal standard in reviewing Caballero-
Pineda’s petition for NACARA relief. Under 8 C.F.R. § 1003.1(d)(3)(i)-(ii), the
BIA reviews factual findings for clear error and questions of discretion de novo.
Here, the BIA accepted the IJ’s findings that there were several positive equities in
Caballero-Pinera’s favor, including his length of residence in the United States, his
family ties, his employment history, and the hardship that his removal would cause
to his family and himself. The BIA also accepted the IJ’s findings and credibility
determination related to Caballero-Pinera’s lack of candor throughout the
proceedings. The BIA, like the IJ,3 then determined that the equities did not
outweigh Caballero-Pinera’s lack of candor. The BIA applied the appropriate legal
standard. Accordingly, we dismiss Caballero-Pineda’s petition for review.
PETITION DISMISSED.
3
The BIA would have been justified in making its own discretionary determination even
if the IJ had not provided an alternate, discretionary reason to deny relief. See Palaez v. U.S.
Att’y Gen., 373 F. App’x 37, 41 (11th Cir. 2010) (“[E]ven though the IJ did not deny Palaez’s
application as a matter of discretion, the BIA’s decision to do so did not violate his right to due
process.”).
4
