USCA11 Case: 20-13823 Date Filed: 04/21/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13823
Non-Argument Calendar
____________________
PAUL RIVERA-ROJO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A200-683-972
____________________
USCA11 Case: 20-13823 Date Filed: 04/21/2022 Page: 2 of 6
2 Opinion of the Court 21-12273
Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges.
PER CURIAM:
Raul Rivera-Rojo (“Petitioner”), a native and citizen of Mex-
ico, petitions for review of the order of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of
cancellation of removal under 8 U.S.C. § 1229b(b). The IJ con-
cluded that Petitioner failed to demonstrate that his removal would
cause his four United States citizen children to suffer “exceptional
and extremely unusual hardship,” as required to qualify for relief
under section 1229b(b). On appeal, Petitioner challenges the con-
stitutionality of the “exceptional and extremely unusual hardship”
standard. No reversible error has been shown; we dismiss the pe-
tition in part and deny the petition in part.
When the BIA issues a summary affirmance of the IJ’s deci-
sion without an opinion -- as the BIA did in this case -- we review
the IJ’s decision as the agency’s final removal order. See Mendoza
v. U.S. Att’y Gen.,
327 F.3d 1283, 1284 n.1 (11th Cir. 2003).
We lack jurisdiction to review the BIA’s denial of an applica-
tion for cancellation of removal “except to the extent that such re-
view involves constitutional claims or questions of law.” See
8
U.S.C. § 1252(a)(2)(B)(i), (D); Patel v. U.S. Att’y Gen.,
971 F.3d
1258, 1262 (11th Cir. 2020) (en banc). We review constitutional
challenges de novo. See Ali v. U.S. Att’y Gen.,
443 F.3d 804, 808
(11th Cir. 2006).
USCA11 Case: 20-13823 Date Filed: 04/21/2022 Page: 3 of 6
21-12273 Opinion of the Court 3
Petitioner contends that the “exceptional and extremely un-
usual hardship” standard violates the Fifth Amendment’s Equal
Protection and Due Process Clauses. Under this hardship standard,
Petitioner says eligibility for relief is conditioned upon the pre-ex-
isting circumstances of an applicant’s immediate- family members
instead of being conditioned upon the applicant’s own conduct or
characteristics. Petitioner says this statutory classification is unrea-
sonable and arbitrary and, thus, fails under rational-basis review.
Petitioner also asserts that the hardship standard violates a pur-
ported fundamental liberty interest in family members living to-
gether and penalizes United States citizen family members who
lack sufficient medical or financial difficulties to render a non-citi-
zen family member eligible for relief. *
In addressing Petitioner’s equal protection argument, we ap-
ply a rational-basis standard of review. See Resendiz-Alcaraz v.
Ashcroft,
383 F.3d 1262, 1271 (11th Cir. 2004) (given Congress’s
“plenary power to pass legislation concerning the admission and
exclusion of aliens, federal classifications that distinguish among
* Petitioner also contends that the BIA’s precedential decisions interpreting
the “exceptional and extremely unusual hardship” standard for cancellation of
removal are inconsistent with the statute’s plain language. Because Petitioner
never raised this statutory-interpretation argument in his appeal to the BIA,
we lack jurisdiction to consider the argument for the first time on appeal. See
Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006)
(concluding that we lack jurisdiction to consider claims raised in a petition for
review unless the petitioner has exhausted his administrative remedies by first
raising the argument on appeal to the BIA).
USCA11 Case: 20-13823 Date Filed: 04/21/2022 Page: 4 of 6
4 Opinion of the Court 21-12273
groups of aliens are subject only to rational basis review.” (citation
omitted)). Under rational-basis review, a challenged legislative
classification “is accorded a ‘strong presumption of validity.’”
Id.
We will uphold a legislative classification against an equal protec-
tion challenge “if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification.”
Id. The
petitioner bears the burden of showing that the legislative classifi-
cation is not rationally related to a legitimate government purpose.
Id. at 1271-72.
Petitioner has failed to satisfy the requisite burden of proof.
Congress has articulated a rational basis for adopting the “excep-
tional and extremely unusual hardship” standard for cancellation
of removal. See H.R. Conf. Rep. 104-828, at 213-14 (1996) (Conf.
Rep.). Congress explained that cancellation of removal should be
limited to “truly exceptional cases,” consistent with the country’s
fundamental immigration laws and policies.
Id. In the interest of
conforming with the country’s immigration policies -- and in re-
sponse to the “weakening” of the former “extreme hardship” stand-
ard -- Congress adopted the heightened “exceptional and extremely
unusual hardship” standard “to emphasize that the alien must pro-
vide evidence of harm to his spouse, parent, or child substantially
beyond that which ordinarily would be expected to result from the
alien’s deportation.”
Id. Given Congress’s stated legitimate gov-
ernment purpose, the heightened hardship standard -- and the clas-
sification based on hardship to an applicant’s family members -- sur-
vives rational-basis scrutiny.
USCA11 Case: 20-13823 Date Filed: 04/21/2022 Page: 5 of 6
21-12273 Opinion of the Court 5
Petitioner has also failed to establish a violation of due pro-
cess. We have said that an applicant “has no constitutionally pro-
tected interest in purely discretionary forms of relief” and, thus, can
establish no due process violation stemming from the denial of
such discretionary relief. See Scheerer v. U.S. Att’y Gen.,
513 F.3d
1244, 1253 (11th Cir. 2008) (rejecting a due-process challenge to the
BIA’s discretionary denial of a petitioner’s motions to reopen and
for reconsideration). Because cancellation of removal is the kind
of purely discretionary form of relief to which Petitioner has no
protected liberty interest, Petitioner can show no violation of his
due process rights. See Martinez v. U.S. Att’y Gen.,
446 F.3d 1219,
1222-23 (11th Cir. 2006) (determining that the BIA’s determination
about whether a petitioner satisfies the “exceptional and extremely
unusual hardship” standard for cancellation of removal is a “purely
discretionary decision”). Nor can Petitioner establish a violation of
the due process rights of his United States citizen children: Peti-
tioner’s children have no constitutionally- protected interest in
having Petitioner continue to reside in the United States. See Gon-
zalez-Cuevas v. I.N.S.,
515 F.2d 1222, 1224 (5th Cir. 1975) (conclud-
ing that the deportation of the parent of a United States citizen child
violates no constitutional right of the citizen child).
Because Petitioner’s equal protection and due process argu-
ments fail on the merits, we deny in part the petition for review.
To the extent Petitioner raises an unexhausted statutory-interpre-
tation argument, we dismiss in part the petition.
USCA11 Case: 20-13823 Date Filed: 04/21/2022 Page: 6 of 6
6 Opinion of the Court 21-12273
PETITION DISMISSED IN PART AND DENIED IN
PART.
