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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14556
Non-Argument Calendar
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Agency No. A073-710-551
GHEORGHE VOICU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 10, 2018)
Before NEWSOM, HULL, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Gheorghe Voicu petitions for review of the Board of Immigration Appeals’
dismissal of his appeal from the Immigration Judge’s denial of his application for
cancellation of removal. Specifically, he challenges the BIA’s discretionary
determination that he failed to show that his daughter would suffer “exceptional
and extremely unusual hardship” if he were removed. We dismiss the petition for
lack of jurisdiction. 1
I
Voicu is a native and citizen of Romania who entered the United States in
1994 on a non-immigrant visa that expired that same year, and he has remained
ever since. His daughter, Michelle Alice Voicu, was born in the United States in
2002.
In 2007, the Department of Homeland Security issued Voicu a notice to
appear, which charged him as removable for overstaying his non-immigrant visa,
in violation of
8 U.S.C. § 1227(a)(1)(B). At a hearing before an IJ, Voicu
conceded removability. He later applied for cancellation of removal under 8
U.S.C. § 1229b(b)(1). Voicu alleged in his application that his removal would
result in “exceptional and extremely unusual hardship” on his daughter, who is a
U.S. citizen. In support of that application, he submitted a report from a clinical
psychologist and psychoanalyst, who concluded that if Voicu’s daughter were
1
We review de novo questions of subject matter jurisdiction. Martinez v. U.S. Att’y Gen.,
446
F.3d 1219, 1221 (11th Cir. 2006).
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separated from her father, she would develop Separation Anxiety Disorder and
would be deprived of the special education classes available to her in the United
States.
An IJ denied Voicu’s application for cancellation of removal because he
determined that Voicu did not demonstrate that his removal would result in
exceptional and extremely unusual hardship to his daughter. The BIA adopted and
affirmed the IJ’s determination that Voicu failed to establish exceptional and
extremely unusual hardship to his daughter, but remanded because Voicu had not
received proper notice regarding a voluntary departure bond.
On remand, Voicu submitted an updated application for cancellation of
removal. In support of that application, Voicu submitted various documents and
testimony reflecting that his daughter had experienced seizures. The IJ again
concluded that Voicu had failed to demonstrate that his daughter would suffer
extreme and exceptionally unusual hardship as a result of his removal. In
particular, he found that although there was evidence that Voicu’s daughter
suffered from various symptoms and had been taking prescription medicine, there
was no formal diagnosis in the record, and the medicine had been obtained from
Canada and was not prescribed for her. The IJ also noted that while Voicu had
several years to take his daughter for a diagnosis, she was not taken until just a few
weeks before testimony was given in Voicu’s immigration case. He further
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concluded that if Voicu were removed, his daughter could stay in the United States
with her mother, who had been granted a stay of removal.
Voicu appealed that decision to the BIA, and the BIA dismissed the appeal.
The BIA concluded that the IJ had correctly considered and weighed the evidence,
and that the IJ had correctly found that Voicu had not shown medical or
educational issues that rose to the level of exceptional and extremely unusual
hardship. It declined to disturb the IJ’s “determination that the daughter could
remain in the United States with her mother rather than moving to Romania with
her father,” despite the fact that her mother did not have permanent legal status in
the United States. This appeal followed.
II
The Immigration and Nationality Act gives the Attorney General discretion
to cancel the removal of an alien who “demonstrates … exceptional and extremely
unusual hardship to his or her spouse, parent, or child, who is a U.S. citizen or
permanent resident.” Martinez v. U.S. Att’y Gen.,
446 F.3d 1219, 1221 (11th Cir.
2006) (citing 8 U.S.C. § 1229b(b)(1)). But under the INA’s discretionary-decision
bar, we lack jurisdiction to review certain discretionary decisions of the BIA,
including orders denying cancellation of removal.
8 U.S.C. § 1252(a)(2)(B)
(preventing courts from reviewing “any judgment regarding the granting of relief
under section … 1229b”). We have specifically held that an “exceptional and
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extremely unusual hardship determination is a discretionary decision not subject to
review.” Gonzalez-Oropeza v. U.S. Att’y Gen.,
321 F.3d 1331, 1333 (11th Cir.
2003). We retain jurisdiction to review such a decision only where the petition
presents “colorable” constitutional claims or questions of law. Arias v. U.S. Att’y
Gen.,
482 F.3d 1281, 1284 (11th Cir. 2007); see also
8 U.S.C. § 1252(a)(2)(D).
But we do not have jurisdiction “to consider ‘garden-variety abuse of discretion’
arguments about how the BIA weighed the facts in the record,” even if couched as
a legal question. Jimenez-Galicia v. U.S. Att’y Gen.,
690 F.3d 1207, 1210–11
(11th Cir. 2012) (quoting Alvarez Acosta v. U.S. Att’y Gen.,
524 F.3d 1191, 1196–
97 (11th Cir. 2008)); see also Alhuay v. U.S. Att’y Gen.,
661 F.3d 534, 549–50
(11th Cir. 2011).
In his brief to this Court, Voicu argues that “[t]he IJ and the BIA committed
legal error in their findings of fact that [his] U.S. citizen daughter was not
diagnosed with epilepsy,” and that “[t]he IJ and the BIA committed legal error
when they held that [he] did not meet his burden of establishing exceptional and
extremely unusual hardship ….” Br. of Appellant at 8, 14. Those arguments,
although couched in terms of “legal error,” merely attempt to challenge the BIA’s
finding that Voicu’s daughter would not suffer exceptional and extremely unusual
hardship if he were removed, and therefore cannot be reviewed by this Court. See
Alhuay,
661 F.3d at 550; Gonzalez-Oropeza,
321 F.3d at 1333. Voicu also argues
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that the BIA failed to give “reasoned consideration” to his claims, Br. of Appellant
at 17, but that is merely a “garden variety abuse of discretion” argument, which we
do not have jurisdiction to consider. Jimenez-Galicia, 690 F.3d at 1210–11.
Accordingly, we dismiss the petition for lack of jurisdiction.
DISMISSED.
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