Romulo Pinto v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10610
Non-Argument Calendar
____________________
ROMULO PINTO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A203-653-980
____________________
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2 Opinion of the Court 21-10610
Before WILSON, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Romulo Pinto seeks review of the Board of Immigration Ap-
peals’s (“BIA”) order affirming the Immigration Judge’s denial of
his application for cancellation of removal pursuant to the Immi-
gration and Nationality Act (“INA”) § 240A(b), 8 U.S.C. § 1229b(b).
The government has moved to dismiss Pinto’s petition for lack of
jurisdiction, asserting that (1) the Immigration Judge’s hardship de-
termination is a “purely discretionary” decision that we lack juris-
diction to review, and (2) Pinto, in any event, failed to exhaust his
administrative remedies. Pinto contends that we retain jurisdiction
over mixed questions of law and fact, including the determination
of one’s statutory eligibility for relief. As to the merits of his peti-
tion, he contends that the Immigration Judge mostly focused on
his family’s medical issues and failed to weigh any other favorable
or adverse factors, contravening BIA precedent as required by due
process.
We review our own subject matter jurisdiction
de novo.
Lin
v. U.S. Att’y Gen., 881 F.3d 860, 866 (11th Cir. 2018). When the
BIA affirms the IJ’s decision without opinion under 8 C.F.R.
§ 1003.1(e)(4), we review the Immigration Judge’s decision as the
final Agency determination.
Yang v. U.S. Att’y Gen., 418 F.3d 1198,
1201 (11th Cir. 2005).
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21-10610 Opinion of the Court 3
Generally, we lack jurisdiction over “any judgment” regard-
ing cancellation of removal under INA § 240A(b), 8 U.S.C.
§ 1229b(b), including any statutory “eligibility determinations.”
INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i);
Patel v. U.S. Att’y
Gen., 971 F.3d 1258, 1279 (11th Cir. 2020) (
en banc),
cert. granted,
Patel v. Garland, 141 S. Ct. 2850 (2021). However, we retain juris-
diction over “constitutional claims or questions of law.” INA
§ 242(a)(2)(D), 8 U.S.C. § 1252(a)(2)(D). In
Patel, we rejected the
government’s contention that this jurisdictional bar applies to “dis-
cretionary determinations,” as opposed to “non-discretionary de-
terminations,” that underlie an alien’s removal order, and we over-
ruled our precedent that distinguished between “discretionary”
and “non-discretionary decisions” in this context. 971 F.3d at 1262,
1276-79. We clarified that we lack jurisdiction over “factual chal-
lenges to denials of” cancellation of removal, but we retain juris-
diction over “constitutional and legal challenges to the denial of
that relief, including review of mixed questions of law and fact.”
Id. at 1275-77, 1279. However, we have jurisdiction only over col-
orable constitutional or legal claims, and “a party may not dress up
a claim with legal or constitutional clothing to invoke our jurisdic-
tion.”
Id. at 1272.
While we retain jurisdiction over final orders of removal, we
“may review a final order of removal only if . . . the alien has ex-
hausted all administrative remedies available to the alien as of
right.” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). The exhaustion re-
quirement is jurisdictional and precludes review of a claimant’s
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4 Opinion of the Court 21-10610
argument that was not presented to the BIA.
Lin, 881 F.3d at
867-68. We have applied the exhaustion requirement in cases
where the BIA summarily affirmed the Immigration Judge without
opinion.
Alim v. Gonzales, 446 F.3d 1239, 1242, 1253 (11th Cir.
2006). Although not stringent, exhaustion requires that the peti-
tioner “previously argued the core issue now on appeal before the
BIA.”
Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir.
2015) (quotation marks omitted). “Though exhaustion does not
require a petitioner to use precise legal terminology or provide a
well-developed argument” in support of his claims, “it does require
that [he] provide information sufficient to enable the BIA to review
and correct any errors below.”
Id. (quotation marks omitted, first
alteration adopted). Except for purely legal questions, “the BIA
cannot review and correct errors without the petitioner first
providing [his] argument’s relevant factual underpinnings.”
Id. at
1298. Further, merely identifying an issue to the BIA is insufficient
to exhaust a petitioner’s claims, as the petitioner must also “set out
any discrete arguments [that] he relies on in support of” those
claims.
Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016).
The Attorney General has discretion to grant cancellation of
removal to a nonpermanent resident who shows, among other
things, that “removal would result in exceptional and extremely
unusual hardship to the alien’s . . . child, who is a citizen of the
United States.” INA § 240A(b)(1)(D), 8 U.S.C. § 1229b(b)(1)(D). In
deciding whether removal would result in such hardship, the BIA
has held that Immigration Judges should consider various factors
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21-10610 Opinion of the Court 5
“in the aggregate,” including “the ages, health, and circumstances
of [the] qualifying [relative],” whether the alien has “a qualifying
child with very serious health issues, or compelling special needs in
school,” and whether the qualifying relative would experience “[a]
lower standard of living or adverse country conditions in the coun-
try of return.”
In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63-64
(BIA 2001). Other factors include economic loss, inability to
reestablish comparable economic stability in the new country, and
the loss of a family support system.
In re Gonzalez Recinas,
23 I. & N. Dec. 467, 471 (BIA 2002).
As an initial matter, because the BIA affirmed the Immigra-
tion Judge without opinion, we review the Immigration Judge’s de-
cision as the final Agency decision. Here, Pinto’s petition is subject
to dismissal for failing to exhaust his administrative remedies. In
his brief before us, Pinto makes specific, discrete arguments about
the Immigration Judge that were not presented to the BIA in his
notice of appeal (“NOA”), and Pinto failed to file a brief with the
BIA. Merely identifying the issue of whether the Immigration
Judge abused her discretion in denying his application, without any
supporting argument, is insufficient to exhaust his claims. Accord-
ingly, we grant the government’s motion, and we dismiss Pinto’s
petition for lack of jurisdiction.
The government’s motion to dismiss for lack of jurisdiction
is hereby GRANTED, and Pinto’s petition is DISMISSED.
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