Edy Armando Santizo Castaneda v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10156
Non-Argument Calendar
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EDY ARMANDO SANTIZO CASTANEDA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A206-011-182
____________________
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2 Opinion of the Court 21-10156
Before JILL PRYOR, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
Edy Armando Santizo Castaneda seeks review of the Board
of Immigration Appeals’ order affirming the denial of his applica-
tion for cancellation of removal by an Immigration Judge IJ. He
asserts that the BIA erred by ignoring evidence that his son, who
had been diagnosed with post-traumatic stress disorder, would suf-
fer exceptional and extremely unusual hardship if he was removed
and by characterizing the hardships resulting from his removal as
no greater than with any family separation.
We review only the BIA’s decision, except to the extent that
the BIA expressly adopted or explicitly agreed with the opinion of
the IJ.
Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir.
2010). Our review as to subject matter jurisdiction is
de novo.
Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1283 (11th Cir. 2007).
Cancellation of removal has four requirements, including
“exceptional and extremely unusual hardship” to alien’s U.S. citi-
zen or lawful permanent resident spouse, parent, or child. 8 U.S.C.
§ 1229b(b). The Immigration & Nationality Act provides that an
order of removal is not judicially reviewable where that order is
against an alien who has applied for cancellation of removal under
8 U.S.C. § 1229b(b). 8 U.S.C. § 1252(a)(2)(B)(i). Notwithstanding
this prohibition, we retain jurisdiction to review colorable consti-
tutional claims or questions of law, including mixed questions of
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21-10156 Opinion of the Court 3
law and fact, raised upon a petition for review. 8 U.S.C.
§ 1252(a)(2)(D);
see Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1275–
76 (11th Cir. 2020) (
en banc) (noting that mixed questions regard-
ing the denial of discretionary relief are reviewable),
cert. granted,
141 S. Ct. 2850 (2021). An 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.
Fynn v. U.S. Att’y Gen., 752 F.3d
1250, 1253 (11th Cir. 2014) (quotation marks omitted);
Mutua v.
U.S. Att’y Gen., No. 20-13129, manuscript op. at 8 (11th Cir. Jan. 5,
2022).
Here, we lack jurisdiction to review Santizo’s purely factual
challenge to the BIA’s weighing of the evidence as to the “excep-
tional and extremely unusual hardship” requirement for cancella-
tion of removal. Santizo attempts to couch his claims as legal ones
but actually challenges the BIA’s exercise of discretion in which it
determined that he failed to show that his removal would not re-
sult in “exceptional and extremely unusual hardship” to his son. In
particular, Santizo asserts that the BIA “ignore[d] evidence that
[his] son had been diagnosed with PTSD.” Br. of Petitioner at 7–8.
Although the BIA did not explicitly mention his son’s PTSD, noth-
ing in the record indicates that the BIA completely ignored or was
unaware of his medical concerns. The BIA did not state that San-
tizo had not presented any evidence of hardship, and it discussed
and cited the IJ’s decision, which explicitly addressed Santizo’s
son’s PTSD. Thus, Santizo’s argument that the BIA did not
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4 Opinion of the Court 21-10156
consider evidence of his son’s PTSD is essentially an argument that
the BIA accorded too much weight to the evidence that his sons
would remain with their mother in the United States and too little
weight to evidence of his son’s PTSD in determining whether he
would suffer “exceptional and unusual hardship.” Santizo’s chal-
lenge to the BIA’s weighing of the evidence or factor-balancing was
a purely factual one that this Court lacks jurisdiction to review.
Pa-
tel, 971 F.3d at 1279. Accordingly, we dismiss the petition.
PETITION DISMISSED.
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