Romulo Pinto v. U.S. Attorney General


USCA11 Case: 21-10610 Date Filed: 11/03/2021 Page: 1 of 5 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-10610 Non-Argument Calendar ____________________ ROMULO PINTO,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 ____________________ USCA11 Case: 21-10610 Date Filed: 11/03/2021 Page: 2 of 5 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). USCA11 Case: 21-10610 Date Filed: 11/03/2021 Page: 3 of 5 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.” …

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