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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14297
Non-Argument Calendar
____________________
DERONG WANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-038-417
____________________
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2 Opinion of the Court 21-14297
Before BRANCH, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Derong Wang, a native and citizen of China, seeks review of
the final order of the Board of Immigration Appeals (“BIA”)
affirming the Immigration Judge’s (“IJ”) denial of his application for
cancellation of removal under the Immigration and Nationality Act
(“INA”). Wang argues that the IJ did not sufficiently consider the
evidence he submitted to show that his children would suffer
exceptional and extremely unusual hardship (“EEUH”), that the IJ
erred by finding he had a possible alternative means of obtaining
status in the United States, and that the BIA failed to give reasoned
consideration to his claim of hardship. Because we lack jurisdiction
over some of Wang’s arguments and the rest lack merit, we dismiss
Wang’s petition for review in part and deny it in part.
I. Background
Wang entered the United States without inspection on
September 15, 1999. In 2012, the Department of Homeland
Security (“DHS”) served Wang with a notice to appear, charging
him as removable under
8 U.S.C. § 1182(a)(6)(A)(i), “as an alien
present in the United States without being admitted or paroled.”
Wang conceded the charge of removability and applied for
cancellation of removal under 8 U.S.C. § 1229b(b)(1), claiming that
his removal would result in EEUH to his children, who are United
States citizens.
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At a hearing on Wang’s application for cancellation of
removal, Wang testified that he moved to New York after entering
the United States in 1999. He lived in New York until 2015, when
he moved to Georgia for his then-girlfriend Xia You. The two had
met in 2007, and Wang explained that Xia moved to New York for
a brief period in 2008 but moved back to Georgia later that year.
From 2008 to 2015, Wang lived in New York while Xia lived in
Georgia, although they would reunite for visits. During that time,
Xia worked part-time at a Chinese restaurant. Xia purchased the
restaurant in 2012. After Wang moved to Georgia, he married Xia
three years later. Wang testified that he has one biological
daughter, who was born in May 2008, and one adopted daughter,
who was born in January 2005. 1 Both of Wang’s daughters were
born in New York, and they are both United States citizens.
Now, Wang and Xia operate the restaurant together and are
the restaurant’s only employees. Wang works as the cook and is
“mainly responsible for the kitchen in the back,” and Xia receives
phone calls in the front and takes care of the children. Their
combined monthly income is about $2,500, and their monthly
household expenses are around $2,400 to $2,600. At the time of the
1 Xia is the mother of both of Wang’s daughters. Wang’s adopted daughter
was born to Xia in 2005 while Xia was in a prior relationship. When Wang
and Xia lived apart from 2008 to 2015, the children lived in Georgia with Xia.
Xia cared for the children and worked part-time, and Wang’s primary role was
to make money to support the family.
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hearing, Xia had A-5 status and was applying for permanent
residence in the United States, but the application process was very
slow. 2 Xia’s parents and three siblings all live in the United States,
and they all have green cards except for her sister.
Wang testified that if he were forced to return to China, the
restaurant would close and Xia, whose English is limited, would
have to find other restaurant work. And as the children’s caretaker,
Xia could work only part-time, which would not be enough “to
support the children and the house payment.” As for Wang, he
would make only $200 to $300 per month in China with his limited
education and skills, which would not be enough to support the
children. Wang explained that the children primarily speak English
with minimal Mandarin, that China would bar the children from
attending public school because they were United States citizens,
and that the family could not afford private school. The family
would also have to pay for private medical care for the children if
they went to China with Wang. Wang testified that Xia’s parents
were granted political asylum in the United States, which might
impact the family if they return to China.
Xia testified next and gave testimony consistent with
Wang’s. She added that she could not run the restaurant by herself
because she helped in the front of the restaurant and was not able
to run the kitchen. She could not afford to hire an employee to
2 Xia’s A-5 status refers to her status as an asylee: Xia’s father was granted
asylum, and Xia was granted derivative asylee status through her father.
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21-14297 Opinion of the Court 5
help. She testified that she did “not have sufficient education and
skill” to find another job and explained that if she had to work full
time, she would not be able to take care of their children. She did
not know when she would be eligible for permanent residence, but
she had to reapply for her A-5 card each year.
The IJ asked counsel when Xia’s visa would be current so
she could be eligible to become a permanent resident. DHS
informed the IJ that Xia had filed an I-485 application for
adjustment of status, which was denied in 2005, and filed another
I-485 in 2007, but it was unknown whether that second application
had been adjudicated.
The IJ issued an oral decision denying Wang’s application
for cancellation of removal. Although the IJ found that Wang and
Xia were “credible witnesses” and that Wang met three of the four
requirements for cancellation, the IJ ultimately found that Wang
failed to meet “his burden to show [EEUH] to his two qualifying
relative children for two primary reasons.” First, the IJ found that
neither Wang nor Xia had provided “sufficient evidence to show
that [Xia] is ineligible to adjust her status, whereby [Wang] would
be also eligible to adjust his status by an alternative means.” The IJ
explained that “the BIA has long-found that if a Respondent has an
alternative means of adjusting his status in the United States, it
diminishes any hardship to his qualifying relatives.” Consequently,
because Wang failed to provide concrete evidence that Xia “would
be ineligible to adjust her status . . . , Wang ha[d] thus failed to show
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6 Opinion of the Court 21-14297
that the hardship to his qualifying relatives would rise to the level
of exceptional and extremely unusual.”
Second, the IJ found that, even if Xia were not eligible to
adjust her status to become a permanent resident, Wang still failed
to meet his burden of showing EEUH to his children. Specifically,
the IJ found that if Wang’s children remained in the United States
after Wang’s departure, they would “suffer the same hardship
commonly seen in these types of cases,” rather than EEUH. The IJ
noted that Xia had owned and operated the restaurant for several
years while Wang lived out of state, and despite the testimony that
they could not afford to hire an employee, there was no testimony
indicating that family members would not be able to help Xia run
the restaurant in Wang’s absence and no evidence “to verify that
the restaurant [would] be inoperable” without Wang. But even if
the restaurant closed, the IJ found that Xia had transferable skills,
no physical or mental impediments to working full-time, and
family in the United States who had helped her in the past with the
restaurant and her children. Moreover, the IJ stated that the
evidence showed that education and healthcare for the children
would only be more expensive in China—not unavailable—and
that Wang and Xia’s testimony about diminished economic
prospects did not rise to the level of EEUH.
Wang appealed to the BIA, challenging the determination
that he failed to demonstrate EEUH and that Xia’s A-5 status
constituted an available alternative means of adjusting his status
that diminished Wang’s hardship claim. Wang argued that he
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demonstrated EEUH through testimony that, if he were removed
and his family stayed in the United States, Xia would have to close
the restaurant because she could not operate it alone; that Xia
would not be able to find suitable employment to provide for two
children and pay for the family’s living and home expenses; and
that Wang’s two teenage daughters were emotionally dependent
on him and would suffer emotional hardship if he left the United
States. Wang also argued that, if the whole family returned to
China, they would have to pay for private medical care and private
school for the children, which they could not afford, and that the
children were familiar only with the United States. Additionally,
Wang argued that the IJ erred in finding that Xia’s status
constituted an available alternative means for Wang to adjust his
status, which diminished his hardship claim, because even if Xia
adjusted her status to become a permanent resident, it would not
improve Wang’s ability to obtain legal status.
The BIA affirmed the IJ’s decision and dismissed Wang’s
appeal. The BIA acknowledged Wang’s arguments that the IJ erred
by finding (1) that Wang had not established the requisite EEUH
based on financial difficulty (including not being able to operate
their restaurant), emotional hardship, and hardship to the children
if they went to China and (2) that Xia’s status created an alternative
means of immigration and diminished Wang’s hardship claim. As
to the latter argument, the BIA explained that the IJ did not find
that Xia’s status would directly result in immigration benefits for
Wang, but instead merely “noted the possibility that” Xia could
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become a permanent resident and file a visa petition on Wang’s
behalf, which would provide Wang an “alternative means of
obtaining” legal status. The BIA then noted that the IJ had
alternatively found that, even if Wang could not obtain status
through his wife, he had not established EEUH to his children.
The BIA concluded that, “[u]pon de novo review, [Wang
did] not qualify for cancellation of removal because he did not
show that his removal would result in [EEUH] to his [children].”
The BIA recognized that Wang’s family would experience hardship
if Wang were removed but concluded that the hardship did not rise
to the level of EEUH. The BIA ruled that the IJ properly considered
the evidence of hardship, including the children’s health, ages, and
lack of special educational needs; economic and financial issues;
and family separation. “In this case, when all factors are considered
in the aggregate,” the BIA explained, “[Wang] did not establish the
requisite hardship.” Accordingly, the BIA upheld the IJ’s decision
and dismissed Wang’s appeal.
Wang timely appealed.
II. Standard of Review and Applicable Law
The INA provides that the Attorney General may cancel the
removal of an alien who meets the four statutory requirements
enumerated in 8 U.S.C. § 1229b(b)(1). 3 The last of the four
3 In full, 8 U.S.C. § 1229b(b)(1) provides:
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21-14297 Opinion of the Court 9
criteria—and the one at issue in this case—requires an alien to
establish “that removal would result in exceptional and extremely
unusual hardship to the alien’s 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)(D).
When the BIA issues a decision regarding the cancellation of
removal, “we review only that decision, except to the extent that
the BIA expressly adopts the IJ’s decision.” Rodriguez v. U.S. Att’y
Gen.,
735 F.3d 1302, 1308 (11th Cir. 2013); Gonzalez v. U.S. Att’y
Gen.,
820 F.3d 399, 403 (11th Cir. 2016) (explaining that “[w]here
the BIA agrees with the IJ’s reasoning, we review the decisions of
The Attorney General may cancel removal of, and adjust to
the status of an alien lawfully admitted for permanent
residence, an alien who is inadmissible or deportable from the
United States if the alien—
(A) has been physically present in the United States for
a continuous period of not less than 10 years
immediately preceding the date of such application;
(B) has been a person of good moral character during
such period;
(C) has not been convicted of an offense under section
1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject
to paragraph (5); and
(D) establishes that removal would result in
exceptional and extremely unusual hardship to the
alien’s spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for
permanent residence.
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both the BIA and the IJ to the extent of the agreement” and where
“the BIA [does] not expressly adopt the IJ’s decision or rely on its
reasoning, we . . . review only the BIA decision”). We do not
consider issues or findings from the IJ that were not reached by the
BIA. See Gonzalez,
820 F.3d at 403. Moreover, we review
jurisdictional questions, constitutional claims, and questions and
conclusions of law de novo, and we review factual determinations
under the substantial evidence test. Id.; Rivas v. U.S. Att’y Gen.,
765 F.3d 1324, 1328 (11th Cir. 2014).
Under the INA’s discretionary decision bar, we lack
jurisdiction to review “any judgment regarding the granting of”
cancellation of removal, except to the extent that a petitioner raises
a constitutional claim or question of law.
8 U.S.C.
§ 1252(a)(2)(B)(i), (D); see Patel v. Garland,
142 S. Ct. 1614, 1627
(2022) (holding that “[f]ederal courts lack jurisdiction to review
facts found as part of discretionary-relief proceedings under . . . the
. . . provisions enumerated in § 1252(a)(2)(B)(i),” one of which is
cancellation of removal). “[A] party may not dress up a claim with
legal or constitutional clothing to invoke our jurisdiction.” Mutua
v. U.S. Att’y Gen.,
22 F.4th 963, 968 (11th Cir. 2022) (quotation
omitted). Thus, “[a]n argument couched as a legal question that
essentially challenges the agency’s weighing of evidence is a
garden-variety abuse of discretion argument that does not state a
legal or constitutional claim.”
Id. (quotation omitted).
Nevertheless, we have jurisdiction to determine whether
the BIA gave reasoned consideration to an alien’s claim because
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21-14297 Opinion of the Court 11
that raises a question of law. Perez-Guerrero v. U.S. Att’y Gen.,
717 F.3d 1224, 1231 (11th Cir. 2013); Farah v. U.S. Att’y Gen.,
12
F.4th 1312, 1327 (11th Cir. 2021). “A reasoned-consideration
examination does not look to whether the agency’s decision is
supported by substantial evidence.” Jeune v. U.S. Att’y Gen.,
810
F.3d 792, 803 (11th Cir. 2016). “Rather, it looks to see whether the
agency has ‘consider[ed] the issues raised and announce[ed] its
decision in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted.’”
Id. (quoting
Seck v. U.S. Att’y Gen.,
663 F.3d 1356, 1364 (11th Cir. 2011)). The
BIA must consider, but need not discuss, all the evidence submitted
to it. Ali v. U.S. Att’y Gen.,
931 F.3d 1327, 1333–34 (11th Cir. 2019).
III. Discussion
On appeal, Wang argues that (1) the IJ failed to correctly
analyze the cumulative effect of the hardship factors on Wang’s
children; (2) the IJ erred by finding that Wang had an alternative
means of adjusting his status in the United States; and (3) the BIA
failed to provide reasoned consideration of Wang’s claim. We
deny Wang’s petition because we either lack jurisdiction to
consider his arguments or because his enumeration of error lacks
merit.
First, Wang argues that the IJ did not provide an “adequate
analysis of the cumulative effect of [the hardship] factors on [his]
daughters.” But because the BIA issued a decision regarding the
cancellation of removal in this case, “we review only [the BIA’s]
decision, except to the extent that the BIA expressly adopts the IJ’s
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decision.” Rodriguez,
735 F.3d at 1308. Here, the BIA engaged in
a de novo review of whether Wang met the EEUH requirement
and did not expressly adopt the IJ’s analysis. Accordingly, Wang’s
argument that the IJ did not properly analyze the hardship factors
is not properly before us. 4 See Gonzalez,
820 F.3d at 403; Malu v.
U.S. Att’y Gen.,
764 F.3d 1282, 1289 (11th Cir. 2014).
Second, Wang’s argument that the IJ erred by finding that
Wang’s hardship claim was diminished because he had a possible
alternative means to obtaining status in the United States fails for
the same reason. Wang again challenges the decision of the IJ—
not the BIA. Because the BIA never expressly adopted or relied on
the IJ’s alternative-means finding, that finding is not properly
before us for review. 5 See Gonzalez,
820 F.3d at 403 (reviewing
4 Additionally, to the extent Wang argues that the IJ applied the wrong legal
standard, we lack jurisdiction to consider his claim because he failed to raise it
before the BIA. Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1250
(11th Cir. 2006) (explaining that, “absent a cognizable excuse or exception, we
lack jurisdiction to consider claims that have not been raised before the BIA”
(quotation omitted)). And to the extent Wang challenges the IJ’s or the BIA’s
weighing of the hardship factors, we lack jurisdiction over such claims.
Martinez v. U.S. Att’y Gen.,
446 F.3d 1219, 1222 (11th Cir. 2006) (explaining
that we lack jurisdiction to review the BIA’s EEUH determinations); Flores-
Alonso v. U.S. Att’y Gen.,
36 F.4th 1095, 1099–100 (11th Cir. 2022).
5 As a reminder, although the BIA summarized the IJ’s findings—including the
IJ’s alternative finding that Xia may provide Wang with an alternative pathway
to status—the BIA conducted a de novo review and concluded that Wang
failed to demonstrate EEUH without relying on any alternative-means
finding.
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21-14297 Opinion of the Court 13
“only the BIA decision” where the “BIA did not expressly adopt the
IJ’s decision or rely on its reasoning”).
Third, Wang’s argument that the BIA failed to provide
reasoned consideration of his claim lacks merit. Unlike his other
two enumerations of error, Wang’s third argument is properly
before us because he contends that the BIA did not reasonably
consider his claim—which is a question of law that we can review.
8 U.S.C. § 1252(a)(2)(D); Perez-Guerrero,
717 F.3d at 1231. We
have explained that “the [BIA] does not need to do much” to
reasonably consider a petitioner’s claim. Ali,
931 F.3d at 1333. “We
just need to be left with the conviction that the [BIA] has heard and
thought about the case and not merely reacted.”
Id. (quotation
omitted) (alterations adopted); Farah, 12 F.4th at 1327 (“To
determine whether the [BIA] gave reasoned consideration to a
petition, we inquire only whether the [BIA] considered the issues
raised and announced its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and not
merely reacted.” (quotation omitted)). We have held that the BIA’s
analysis was sufficient to show reasoned consideration when it
listed the basic facts of the case, referred to relevant statutory and
regulatory authority, and accepted several grounds on which the IJ
denied the petitioner’s request for relief. Bing Quan Lin v. U.S.
Att’y Gen.,
881 F.3d 860, 874–75 (11th Cir. 2018). On the other
hand, the BIA fails to give reasoned consideration to a claim when
it “misstates the contents of the record, fails to adequately explain
its rejection of logical conclusions, or provides justifications for its
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decision which are unreasonable and which do not respond to any
arguments in the record.”
Id. at 874 (quotation omitted).
Here, Wang argues that the BIA did not reasonably consider
his claim because “the BIA’s conclusion as to whether [Wang’s
children] would suffer the requisite hardship consisted of two short
and conclusory paragraphs.” We disagree and conclude that the
BIA’s discussion was sufficient to show that the BIA heard and
thought about Wang’s arguments and the evidence in his case.
The BIA acknowledged Wang’s arguments about various hardship
factors, explicitly noting his arguments about being unable to
operate the restaurant, financial difficulties, and the emotional
hardship that the children would suffer if they accompanied Wang
to China. It then cited the applicable statutory and regulatory
authority and relevant BIA decisions and concluded that Wang’s
asserted hardship factors, when considered in the aggregate, did
not meet the EEUH standard. In other words, the BIA’s discussion
showed that the BIA gave reasoned consideration to Wang’s claim.
See Bing Quan Lin,
881 F.3d at 874–75.
IV. Conclusion
For the foregoing reasons, we dismiss in part Wang’s
petition because Wang’s first two arguments are not properly
before us, and we deny in part Wang’s petition because the BIA
gave reasoned consideration to Wang’s claim.
PETITION DISMISSED IN PART AND DENIED IN
PART.
