Moises Acevedo-Perez v. LORETTA E. LYNCH, U.S. Attorney General

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0549n.06
No. 16-3188
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MOISES ACEVEDO-PEREZ,
Petitioner,
v.
LORETTA E. LYNCH, U.S. Attorney
General,
Respondent.
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ON PETITION FOR REVIEW
FROM THE UNITED STATES
BOARD OF IMMIGRATION
APPEALS
BEFORE: SUTTON and STRANCH, Circuit Judges; STEEH, District Judge.
PER CURIAM. Moises Acevedo-Perez petitions this court for review of an order of the
Board of Immigration Appeals (BIA) dismissing his appeal from the denial of his application for
cancellation of removal.
Acevedo-Perez, a native and citizen of Mexico, entered the United States without
inspection in 2000. In 2010, after his arrest for traffic violations, the Department of Homeland
Security served Acevedo-Perez with a notice to appear in removal proceedings, charging him
with removability as an alien present in the United States without being admitted or paroled. See
8 U.S.C. § 1182(a)(6)(A)(i). Acevedo-Perez appeared before an immigration judge (IJ) and
conceded removability. Acevedo-Perez subsequently applied for cancellation of removal on the
basis that his removal would result in exceptional and extremely unusual hardship to his United
 The Honorable George C. Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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No. 16-3188
Acevedo-Perez v. Lynch
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States citizen child, who has an ear condition that requires reconstructive surgery when she is
older. See 8 U.S.C. § 1229b(b)(1). After a hearing, the IJ denied Acevedo-Perez’s application
for cancellation of removal, finding that hardship would exist but would not rise to the level of
exceptional and extremely unusual hardship. On appeal, the BIA determined that the IJ properly
considered the relevant hardship factors with respect to Acevedo-Perez’s child and agreed that
Acevedo-Perez failed to establish eligibility for cancellation of removal.
This timely petition for review followed. The respondent contends that we should
dismiss Acevedo-Perez’s petition for lack of jurisdiction. This court lacks jurisdiction to review
the discretionary denial of an application for cancellation of removal. 8 U.S.C.
§ 1252(a)(2)(B)(i). We retain jurisdiction, however, to consider “constitutional claims or
questions of law.” 8 U.S.C. § 1252(a)(2)(D); see Montanez-Gonzalez v. Holder, 780 F.3d 720,
722 (6th Cir. 2015).
Acevedo-Perez argues that the BIA violated his due process rights in holding that he
failed to show that his removal would result in exceptional and extremely unusual hardship to his
child. “[T]he Fifth Amendment’s Due Process Clause mandates that removal hearings be
fundamentally fair and that a petitioner is entitled to a full and fair hearing.” Abdallahi v.
Holder, 690 F.3d 467, 472-73 (6th Cir. 2012). To succeed on his due process claim, Acevedo-
Perez must demonstrate that there was a defect in the removal proceeding and that he was
prejudiced by the defect. Id. at 472. Acevedo-Perez does not identify any defect in the removal
proceeding. Although he frames his argument as a constitutional claim, Acevedo-Perez
essentially challenges the agency’s discretionary determination that he failed to demonstrate the
requisite hardship, which we lack jurisdiction to review. See Ettienne v. Holder, 659 F.3d 513,
518-19 (6th Cir. 2011).

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Acevedo-Perez also argues that the BIA committed gross error in failing to apply its own
relevant precedents to the pertinent facts of his case. See Aburto-Rocha v. Mukasey, 535 F.3d
500, 503 (6th Cir. 2008) (stating that the BIA’s “adherence to precedent is a non-discretionary
act”). “[T]his court lacks jurisdiction over claims that can be evaluated only by engaging in
head-to-head comparisons between the facts of the petitioner’s case and those of precedential
decisions.” Ettienne, 659 F.3d at 518. By asserting that the BIA’s precedents suggest that a
petitioner whose United States citizen child has serious health problems would have a strong
case for cancellation of removal, Acevedo-Perez asks us to do exactly the sort of factual
comparison and reweighing in which we may not engage.
For the foregoing reasons, we DISMISS Acevedo-Perez’s petition for review.

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