Reyna Garcia-Acuna v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 25, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-12713
Non-Argument Calendar
________________________
Agency No. A098-324-994
REYNA GARCIA-ACUNA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 25, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:

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Reyna Garcia-Acuna, a native and citizen of Mexico, seeks review of the
Bureau of Immigration Appeals’ (“BIA’s”) order affirming the Immigration
Judge’s (“IJ’s”) denial of cancellation of removal under 8 U.S.C. § 1229b(a) and
ordering her removed. For the reasons set forth below, we dismiss the petition in
part, and deny in part.
I.
The Immigration and Naturalization Service issued a Notice to Appear,
(“NTA”), charging that Garcia-Acuna was subject to removal under INA
§ 212(a)(6)(A)(i), as an alien who entered the United States without formal
admission or parole. Garcia-Acuna admitted the allegations contained in the NTA
and filed an application for cancellation of removal, indicating that her mother,
father, and three sisters were lawful permanent residents (“LPRs”), and that her
daughter and three grandchildren were United States citizens.
At a hearing before the IJ, Garcia-Acuna testified that she lived with her four
children, and that her six-year old daughter, Catherine, was an American citizen
who spoke English and Spanish. Garcia-Acuna also had four sisters and one
brother who lived in the United States. Garcia-Acuna testified that she lived close
to her parents and visited them three times a week to help care for them. She
explained that her father was diabetic and her mother had osteoporosis.
Pedro Garcia-Ocampo, Garcia-Acuna’s father, testified that his other
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daughters lived further away than Garcia-Acuna, and that the whole family was
together only on Saturdays and Sundays. Garcia-Ocampo stated that Garcia-Acuna
helped his wife, who could not do any work at home, by cooking her meals.
Garcia-Ocampo worked at a nursery 40 hours a week, earning 7 dollars an hour.
His wife did not work. Garcia-Ocampo stated that his other children lived in the
same city as him and helped him and his wife on weekends.
Gloria Garcia-Acuna, Garcia-Acuna’s sister, explained that she was
responsible for taking her father to his medical appointments, because she was the
one who had a driver’s license. She stated that Garcia-Acuna worked every day
but made time to go to her parents’ house to help them with chores, cooking,
cleaning, and laundry. She stated that her other three sisters did not drive and had
a lot of responsibilities with their own children. Gloria stated that she did not
work.
The IJ denied Garcia-Acuna’s application for cancellation of removal,
finding that her qualifying relatives would not suffer exceptional and extremely
unusual hardship if she were removed to Mexico, because other family members
remaining in the United States could “take up the slack” in caring for them.
Garcia-Acuna filed an appeal with the BIA, arguing that the IJ failed to
consider her parents’ health problems, advanced age, and poor financial situation,
and “failed to address the ‘totality of the burden’ standard.”
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The BIA determined that the IJ did not err in concluding that Garcia-Acuna
failed to demonstrate that her qualifying family members would suffer extreme and
unusual hardship if she were removed to Mexico. It noted that Catherine had no
medical or developmental issues and that Garcia-Acuna’s siblings lived near her
parents and could provide assistance. The BIA also pointed out that
Garcia-Acuna’s sister already took primary responsibility for her parents’ medical
issues. Based on these findings, the BIA dismissed Garcia-Acuna’s appeal.
II.
When examining a petition for review, we “must first consider whether we
have subject matter jurisdiction to hear the petition at all.” Resendiz-Alcaraz v.
U.S. Att’y Gen., 383 F.3d 1262, 1266 (11th Cir. 2004). We review subject matter
jurisdiction de novo. Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1231
(11th Cir. 2007).
Under 8 U.S.C. § 1229b, the Attorney General may cancel the removal of a
nonpermanent resident who establishes, inter alia, that removal would cause
“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). Section 1252(a)(2)(B)(i) of Title 8
provides that no court has jurisdiction to review “any judgment regarding the
granting of relief under section . . . 1229b . . . of this title.” 8 U.S.C.
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§ 1252(a)(2)(B)(i). Nevertheless, we retain jurisdiction to consider constitutional
claims or legal questions related to cancellation of removal. 8 U.S.C.
§ 1252(a)(2)(D); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221-22 (11th Cir.
2006). We have held that the BIA’s “exceptional and extremely unusual hardship
determination is a discretionary decision not subject to review.” Martinez, 446
F.3d at 1221.
III.
In her brief, Garcia-Acuna first argues that the BIA erred in finding that her
parents could rely on other family members to take care of them if she were
removed to Mexico. This argument is a purely factual argument, because it
challenges a factual finding made by the BIA. Although Garcia-Acuna attempts to
frame this issue as a legal argument by asserting that the BIA “mischaracterized”
the evidence, this argument is simply an invitation to reevaluate the evidence
presented to the IJ and determine whether the BIA’s factual conclusion, that other
members could care for Garcia-Acuna’s parents, was erroneous. Accordingly,
because this issue presents no legal or constitutional questions, we lack jurisdiction
to consider this argument. See 8 U.S.C. §§ 1252(a)(2)(B)(i), (a)(2)(D).
Next, Garcia-Acuna argues that the BIA failed to address the fact that her
parents lived below the poverty level. Garcia-Acuna cites no law that requires the
BIA to consider this factor when determining whether the petitioner’s removal
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would result in “exceptional and extremely unusual hardship.” Garcia-Acuna’s
argument that the BIA should have weighed this fact when making its discretionary
determination is not constitutional or legal in nature, and, therefore, we have no
jurisdiction to consider it. See 8 U.S.C. §§ 1252(a)(2)(B)(i), (a)(2)(D).
Finally, Garcia-Acuna argues that the BIA erred by ignoring the “totality of
the burden” standard set forth in In re Recinas, 23 I&N Dec. 467 (BIA 2002), in
deciding whether she met the “exceptional and extremely unusual hardship”
requirement. Assuming without deciding that this argument presents a question of
law and we have jurisdiction to review it, the issue is, nevertheless, meritless. The
BIA, in its order denying relief, cited Recinas in support of its determination that
Garcia-Acuna failed to show that her removal would result in “exceptional and
extremely unusual hardship.” Accordingly, we dismiss Garcia-Acuna’s petition in
part and deny the petition in part.
PETITION DISMISSED IN PART, DENIED IN PART.
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