USCA11 Case: 20-13306 Date Filed: 03/24/2021 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 20-13306 Non-Argument Calendar ________________________ Agency No. A200-969-976 RAMIRO MARTINEZ-SANTOS, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (March 24, 2021) Before LUCK, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: Ramiro Martinez-Santos seeks review of the Board of Immigration Appeals’s final order affirming the immigration judge’s denial of his application for USCA11 Case: 20-13306 Date Filed: 03/24/2021 Page: 2 of 4 cancellation of removal under Immigration and Nationality Act § 240A(b), 8 U.S.C. § 1229b(b). He makes three arguments. He argues (1) that the BIA’s previous interpretation of “exceptional and extremely unusual hardship” is not based on a permissible construction of the statute; (2) that Section 1229b(b) violates the Fifth Amendment’s due process clause by requiring him to establish the hardship of others and punishing family members for their “own lack of disability, or lack of sickness, or their own lack of poverty”; and (3) that it violates the Fifth Amendment’s equal protection clause by focusing solely on the hardship to a qualifying relative as opposed to the alien himself. We limit our review to the BIA’s decision, reviewing the immigration judge’s decision to the extent that the BIA expressly adopts it. Perez-Zenteno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). Issues that the BIA did not reach are not properly before us. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Issues the petitioner did not raise before the BIA are unexhausted; we lack jurisdiction to consider them. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir. 2006). But “constitutional claims raised for the first time [in this Court] that address issues beyond the power of the BIA to address in adjudicating an individual’s case may not require exhaustion.” Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 867–68 (11th Cir. 2018); see also Sundar v. I.N.S., 328 F.3d 1320, 1325 (11th Cir. 2003) (holding that the exhaustion 2 USCA11 Case: 20-13306 Date Filed: 03/24/2021 Page: 3 of 4 requirement applies to claims regarding the BIA’s application of its own precedent and emphasizing that the claim at issue was “not a constitutional challenge to the INA itself or a due process claim that could not be resolved by a BIA decision.” 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). Because that decision is discretionary, we lack jurisdiction to review it. INA § 242(a)(2)(B), 8 U.S.C. § 1252(a)(2)(B); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1222 (11th Cir. 2006). But we may review de novo “colorable” constitutional …
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