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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11474
Non-Argument Calendar
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Agency No. A206-471-961
FRANCISCO FRANCISCO-PEDRO,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(December 3, 2020)
Before MARTIN, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Francisco Francisco-Pedro, a native and citizen of Guatemala, seeks review
of a Board of Immigration Appeals decision affirming denial of his application for
cancellation of removal. Francisco-Pedro argues that the Immigration Judge
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erroneously concluded that he had failed to establish that his removal would cause a
qualifying relative to suffer an exceptional and extremely unusual hardship. Because
Francisco-Pedro has not argued any constitutional or legal error, only a discretionary
one, we lack jurisdiction over his petition. Upon consideration, the petition is
DISMISSED.
BACKGROUND
We presume familiarity with the factual and procedural history and describe
it below only to the extent necessary to address the issues raised in this appeal.
The Department of Homeland Security issued a notice to appear to Francisco-
Pedro, charging that he was removable because he was present in the country without
having been admitted or paroled and without a valid entry document. Francisco-
Pedro sought to avoid removal by filing an application for cancellation of removal
and adjustment of status. He argued that his removal would cause his citizen son,
now sixteen, to suffer exceptional and extremely unusual hardship from his father’s
removal. At a preliminary hearing, Francisco-Pedro admitted to the Department’s
allegations and conceded he was removable as charged.
At the merits hearing, Francisco-Pedro testified that in 2000 he entered the
United States. He was in his mid-teens at the time. His parents and siblings remained
in Guatemala where they are farmers. Soon after entering the United States, he began
living with his partner. They had a son together. Francisco-Pedro’s main concern for
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his son is that he would not have access to the same medical care and educational
opportunities in Guatemala. Francisco-Pedro testified that his son is a good student.
He also testified that his son sometimes gets sick but has no specific medical
problems.
On direct examination, Francisco-Pedro testified that, if removed, he would
not bring his son and partner with him to Guatemala because he would not be able
to support them, they would not have accommodations, and his son does not speak
much Spanish. On cross-examination, Francisco-Pedro stated that, if removed, he
would take his son and partner with him, but they would experience hardship.
The Immigration Judge denied Francisco-Pedro’s application for cancellation
of removal in a written decision. The Immigration Judge found that Francisco-Pedro,
if removed, would leave his son in the United States. The Immigration Judge also
found that although Francisco-Pedro had been continuously present in the United
States for more than ten years and had good moral character, he had not established
that the emotional or financial toll on his son would rise to the requisite level of
exceptional and unusual hardship. The Board summarily affirmed the decision. This
appeal followed.
DISCUSSION
Francisco-Pedro asks us to revisit the Immigration Judge’s discretionary
determination that he failed to establish that the emotional or financial toll on his
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citizen son would rise to the requisite level of exceptional and unusual hardship. The
government responds that this Court does not have jurisdiction to review an
Immigration Judge’s discretionary decisions. We review our own subject matter
jurisdiction de novo. Jeune v. Att’y Gen.,
810 F.3d 792, 799 (11th Cir. 2016). When
the Board summarily affirms an Immigration Judge’s decision, the affirmed decision
“becomes the final removal order subject to review.” Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1230 (11th Cir. 2005).
The Attorney General, in his discretion, may grant cancellation of removal to
an applicant who (1) has been physically present in the United States for at least ten
years, (2) “has been a person of good moral character,” (3) has not been convicted
of certain crimes, and (4) establishes his “removal would result in exceptional and
extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent residence.” 8 U.S.C. §
1229b(b)(1). The Immigration Judge found that Francisco-Pedro met all of these
criteria except for exceptional and extremely unusual hardship to a family member.
This discretionary decision, like all discretionary decisions by the
Department, lies beyond our appellate jurisdiction. 8 U.S.C. § 1252(a)(2)(B)(i). Our
review is limited to constitutional claims and questions of law raised by challenges
to the agency’s decisions. 8 U.S.C. § 1252(a)(2)(D). Section 1252(a)(2)(D) “does
not restore our jurisdiction” where the Board affirms an Immigration Judge’s order
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“due to the petitioner’s failure to demonstrate the requisite hardship.” Alhuay v. U.S.
Att’y Gen.,
661 F.3d 534, 549–50 (11th Cir. 2011). “[S]uch challenges are not
constitutional claims or questions of law because what constitutes an ‘exceptional
and extremely unusual hardship’ is itself a discretionary determination.”
Id. at 550.
Such is the case here. Francisco-Pedro’s only argument is that we should
review the Immigration Judge’s conclusion that he failed to demonstrate the
requisite level of hardship. He neither argues that the Immigration Judge applied the
wrong legal standard nor that his constitutional rights were violated. As we have
previously held, whether circumstances constitute an exceptional and extremely
unusual hardship is a discretionary determination, over which we have no
jurisdiction.
CONCLUSION
Because we have no jurisdiction over an Immigration Judge’s discretionary
determinations, the petition is DISMISSED.
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