USCA11 Case: 20-13961 Date Filed: 11/03/2021 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13961
Non-Argument Calendar
____________________
NAUN RIGOBERTO SAUCEDA MARTINEZ,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-612-769
____________________
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2 Opinion of the Court 20-13961
Before JILL PRYOR, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Nuan Rigoberto Sauceda Martinez, a native and citizen of
Honduras, seeks review of the Board of Immigration Appeals’
(“BIA”) final order adopting and affirming the Immigration
Judge’s (“IJ”) denial of his application for cancellation of removal
on the ground that Sauceda Martinez did not show that his
removal would result in exceptional and extremely unusual
hardship to his U.S. citizen son. 1 Sauceda Martinez argues that
the IJ and the BIA violated his due process rights and incorrectly
applied the exceptional and extremely unusual hardship standard
by requiring him to prove that the requisite hardship was
1 The Attorney General may cancel the removal of an inadmissible or
removable alien and adjust the status of the alien to that of a lawful
permanent resident 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 [certain specified offenses]; 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.
8 U.S.C. § 1229b(b)(1).
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20-13961 Opinion of the Court 3
“unconscionable.” 2 After review, we dismiss the petition for lack
of jurisdiction.
I. Background
Sauceda Martinez entered the United States without
inspection in December 2003. In 2014, the Department of
Homeland Security served Sauceda Martinez with a notice to
appear, charging him as removable for being an alien present in
the United States without being admitted or paroled. Sauceda
Martinez conceded removability and sought cancellation of
removal under 8 U.S.C. § 1229b(b)(1). In his application, he
asserted that his removal would result in exceptional and
extremely unusual hardship to his minor son, Ever Sauceda
Bardales, who is a U.S. citizen.
In relevant part, at the merits hearing on his application for
cancellation of removal, Sauceda Martinez testified that Ever,
born in 2007, was his only child. Sauceda Martinez’s relationship
with Ever’s mother ended in 2011, and Ever lives with his mother
and his stepfather in Washington, D.C. Sauceda Martinez, who
lives in Florida, visits Ever twice a year and calls him every day.
Sauceda Martinez testified that he provides $350-400 in monthly
child support for Ever, but he does so voluntarily and not
pursuant to a court order. Sauceda Martinez explained that
2Sauceda Martinez acknowledges in his petition for review that, under
8
U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to review the IJ’s decision as to
whether to grant cancellation of removal.
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4 Opinion of the Court 20-13961
Ever’s mother told him that she would not send Ever to visit if
Sauceda Martinez were removed to Honduras “because it’s very
dangerous” and Sauceda Martinez would have to wait for Ever to
turn 18 and then Ever could make his own decision about visiting.
Sauceda Martinez did not believe that he would be able to
provide any monetary support for Ever if he were returned to
Honduras because the pay is so low there. When Sauceda
Martinez talked to Ever about Sauceda Martinez’s possible
deportation, Ever stated he would “be very sad” and he would
miss his father. Sauceda Martinez stated that if he were removed
it would negatively affect his son emotionally and financially.
Following the merits hearing, the IJ issued an oral decision
denying the application for cancellation of removal. In his
decision, the IJ explained that, for cancellation of removal
purposes,
[t]o establish exceptional and extremely unusual
hardship, an applicant must demonstrate that a
qualifying relative would suffer hardship that is
substantially different from or beyond that which
would ordinarily be expected to result from the
alien’s deportation. However, he need not show
that such hardship would be “unconscionable.”
As to Sauceda Martinez’s showing of hardship, the IJ noted that
because Sauceda Martinez was 37 years old, in good health, and
had worked as a welder for 14 years, there was nothing to show
that he would be unable to work and support his child from
Honduras. The IJ further explained that the economic detriment
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20-13961 Opinion of the Court 5
resulting from adverse conditions and the loss of, or difficulty
finding, employment in Honduras were normal consequences of
deportation and did not justify cancellation of removal. The IJ
acknowledged that Ever’s separation from Sauceda Martinez
would undoubtedly cause a hardship, but that this type of
hardship was a normal result of deportation and Sauceda
Martinez failed to provide evidence establishing “that his son
would suffer hardship that is substantially different from or
beyond that which would normally be expected from the
deportation of an alien with close family members here.”
Sauceda Martinez appealed to the BIA, arguing that he
showed exceptional and extremely unusual hardship, that the IJ
did not weigh properly all of the relevant factors, and that he was
not required to show that the hardship would be
“unconscionable.” The BIA adopted and affirmed the IJ’s decision
and dismissed the appeal, finding that the IJ properly considered
the relevant factors related to hardship, and the BIA “agree[d] that
the child’s hardship would not be substantially beyond that
typically resulting from a family member’s removal.” The BIA
noted that, “[a]s significant a hardship as it is, family separation in
and of itself does not meet the high standard of exceptional and
extremely unusual hardship.” Accordingly, the BIA dismissed the
appeal. We now turn to the claim raised in Sauceda Martinez’s
petition for review.
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6 Opinion of the Court 20-13961
II. Discussion
Sauceda Martinez argues that the IJ and the BIA violated
his due process rights and misapplied the exceptional and
extremely unusual hardship standard by requiring him to show
that the hardship would be unconscionable.
We review only the decision of the BIA, except to the
extent that it adopts the IJ’s decision or expressly agrees with the
IJ’s reasoning. Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 403
(11th Cir. 2016). When the BIA explicitly agrees with the findings
of the IJ, we will review the decisions of both the BIA and the IJ as
to those issues. Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 948 (11th
Cir. 2010). “We review constitutional challenges, including
alleged due process violations, de novo.” Alhuay v. U.S. Att’y
Gen.,
661 F.3d 534, 548 (11th Cir. 2011) (quotation omitted).
As Sauceda Martinez concedes,
8 U.S.C. § 1252(a)(2)(B)(i)
precludes our review of “any judgment regarding the granting of
relief under . . . [8 U.S.C. §] 1229b”—including cancellation of
removal.
8 U.S.C. § 1252(a)(2)(B)(i); see also Patel v. U.S. Att’y
Gen.,
971 F.3d 1258, 1272 (11th Cir. 2020) (en banc), cert. granted,
141 S. Ct. 2850 (2021) (No. 20-979). Notwithstanding this
jurisdictional bar, however, we retain jurisdiction to consider
“constitutional claims or questions of law.”
8 U.S.C.
§ 1252(a)(2)(B), (D). Constitutional claims or questions of law
must be colorable, though, and “a party may not dress up a claim
with legal or constitutional clothing to invoke [this Court’s]
jurisdiction.” Patel, 971 F.3d at 1272 (en banc). Furthermore,
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20-13961 Opinion of the Court 7
“[w]here a constitutional claim has no merit . . . we do not have
jurisdiction.” See Gonzalez-Oropeza v. U.S. Att’y Gen.,
321 F.3d
1331, 1333 (11th Cir. 2003), overruled on other grounds by Patel,
971 F.3d at 1275–78 (en banc).
In order to establish exceptional and extremely unusual
hardship to a qualifying relative for purposes of cancellation of
removal, “the hardship to an alien’s relatives . . . must be
substantially beyond the ordinary hardship that would be
expected when a close family member leaves this country.” In re
Monreal-Aguinaga,
23 I. & N. Dec. 56, 62 (BIA 2001) (quotation
omitted). This standard requires that cancellation of removal be
“limited to ‘truly exceptional’ situations.”
Id. at 62. Nevertheless,
although the standard is high, it is “less than ‘unconscionable.’”
Id. at 60.
Having reviewed the record, we conclude that the IJ and
the BIA identified and applied the correct legal standard in this
case. The IJ identified the exceptional and extremely unusual
hardship standard and cited to several BIA decisions applying that
correct standard. The IJ also stated expressly that Sauceda
Martinez “need not show that [the requisite] hardship would be
‘unconscionable.’” Nothing in the record supports Sauceda
Martinez’s claim that the IJ erroneously required him to show
that the hardship would be unconscionable. Rather, the record
establishes that the IJ applied the correct standard, and the BIA
adopted and affirmed the IJ’s decision. Thus, because Sauceda
Martinez’s constitutional due process claim has no merit, we lack
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8 Opinion of the Court 20-13961
jurisdiction to review the petition. Gonzalez-Oropeza,
321 F.3d at
1333. Accordingly, we dismiss the petition.
PETITION DISMISSED.
