[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10600

____________________

ROSENDO PONCE FLORES, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A077-460-794

____________________

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2 Opinion of the Court 21-10600

Before WILLIAM PRYOR, Chief Judge, and HULL and MARCUS, 

Circuit Judges.

HULL, Circuit Judge:

Rosendo Ponce Flores petitions for review of the Board of 

Immigration Appeals’s (“BIA”) order (1) affirming the Immigration 

Judge’s (“IJ”) denial of his application for cancellation of removal

and dismissing his appeal, and (2) denying his motion to reopen and 

remand his removal proceedings. Ponce Flores, a citizen of 

Mexico, conceded removability. This petition is about only his 

application for cancellation of his removal. The main grounds for 

both his appeal to the BIA and his motion to reopen were Ponce 

Flores’s claim that his counsel rendered ineffective assistance and 

denied him constitutional due process as to his cancellation-ofremoval application. 

After review and with the benefit of oral argument, we 

conclude as to the denial of Ponce Flores’s application that: 

(1) cancellation of removal is a purely discretionary form of relief 

from removal; (2) Ponce Flores does not have a constitutionally 

protected liberty interest in that purely discretionary relief; and 

(3) therefore, Ponce Flores’s constitutional due process claim is 

meritless, and we lack jurisdiction to entertain it under the 

Immigration and Nationality Act (“INA”) § 242(a)(2)(D), 8 U.S.C. 

§ 1252(a)(2)(D). To the extent Ponce Flores is challenging the BIA’s 

affirmance of the IJ’s determination that Ponce Flores has not 

satisfied the hardship requirement for eligibility for cancellation of 

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21-10600 Opinion of the Court 3

removal under INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1)(D), we also 

lack jurisdiction to review that factual finding. 

As to Ponce Flores’s ineffective assistance claims in his

motion to reopen and remand, we conclude that: (1) Ponce Flores 

cannot establish a constitutional due process violation based on the 

BIA’s denial of his motion to reopen because he does not have a

protected liberty interest in either discretionary cancellation of 

removal or in the granting of a motion to reopen; (2) the BIA 

properly followed its legal precedent in Matter of Lozada, 19 I. &

N. Dec. 637 (BIA 1988); and (3) to the extent Ponce Flores’s 

challenge to the denial of his motion to reopen rests on an 

argument that the BIA erred in ruling that he had not demonstrated 

that but for his counsel’s deficiencies he would have proved the 

requisite hardship, we lack jurisdiction to entertain this claim.

I. BACKGROUND 

A. Ponce Flores’s Unlawful Entry 

Ponce Flores, a native and citizen of Mexico, first entered 

the United States in either 1995 or 1996. In 1999, Ponce Flores was 

arrested on charges of alien smuggling after he and two other aliens 

crossed the border in Laredo, Texas. Ultimately, Ponce Flores pled 

guilty to unlawfully entering the United States, in violation of 8 

U.S.C. § 1325. Ponce Flores was removed to Mexico, but placed 

on five years’ probation without supervision and with the special 

condition that he did not return or attempt to return to the United 

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States. While in Mexico, Ponce Flores met and married Lizet

Cornejo. 

In 2004, Ponce Flores unlawfully re-entered the United 

States in Arizona without inspection. He and his wife settled in 

Naples, Florida, where he works. 

Ponce Flores and his wife have two daughters who were 

born in Naples and are U.S. citizens. Born in 2004, their oldest 

daughter, Nancy, was diagnosed with autism spectrum disorder 

and expressive language disorder. Born in 2012, their younger

daughter, Stephanie, does not have special needs. 

B. Initiation of Removal Proceedings in 2016 

In October 2016, Ponce Flores was arrested for domestic 

battery of his wife, although charges were never filed. He also had 

two traffic infractions for driving without a license and driving on 

a suspended license, but adjudication for both offenses was 

withheld. 

In November 2016, the Department of Homeland Security 

served Ponce Flores with a notice to appear that charged him with 

removability on two grounds: (1) under INA § 212(a)(6)(A)(i), 8 

U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States 

without having been admitted or paroled; and (2) under INA 

§ 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien not in 

possession of a valid entry document at the time of admission. At 

an initial hearing in November 2016, Ponce Flores conceded 

removability as charged. 

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Sometime in 2017, Lizet Cornejo and her daughters moved 

to Dallas, Texas. Ponce Flores remained in Naples, Florida. In 

Texas, his daughter Nancy began attending a school with a special 

program for autism. 

C. Application for Cancellation of Removal in 2018 

Later, Ponce Flores retained attorney Matus Varga to 

represent him. In January 2018, attorney Varga filed Ponce Flores’s 

application for cancellation of removal pursuant to INA 

§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1). That application claimed that 

Ponce Flores’s removal would result in exceptional and extremely 

unusual hardship to his U.S.-citizen daughter Nancy because of her 

autism. 

Attorney Varga filed multiple documents, such as: 

(1) documents about Nancy’s medical and educational needs; 

(2) medical records and reports from her doctors; (3) records from 

her elementary school in Florida and her middle school in Texas 

indicating she received special education services; (4) Ponce 

Flores’s tax returns for 2008 and 2011 to 2016; (5) notarized 

character letters from friends; and (6) a notarized letter from Lizet

Cornejo, stating that Nancy did not understand her father’s 

absence and suffered every day waiting for his return. 

At his 2018 merits hearing, Ponce Flores testified that he 

remained in Florida for his job and flew to Texas once a month to 

see his family. Ponce Flores admitted, however, that he was

arrested for (1) alien smuggling and convicted of illegal reentry and 

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(2) domestic abuse but those charges were dismissed. He also 

admitted that his family had received government assistance for 

Nancy’s therapy and health insurance. Contrary to his testimony, 

Ponce Flores’s application had indicated that he was never arrested 

or convicted of an offense and that no member of his family, 

including his children, received public assistance. 

D. IJ’s Denial of Cancellation of Removal 

In July 2018, the IJ’s decision denied Ponce Flores’s 

application for cancellation of removal. The IJ found that Ponce 

Flores’s testimony lacked credibility due to (1) inconsistencies 

between his hearing testimony and the information in his 

application and (2) his failure to provide corroborating evidence for 

key aspects of his testimony. 

The IJ denied Ponce Flores’s application because he failed to 

establish three of the four statutory requirements for eligibility for 

discretionary cancellation of removal under 8 U.S.C. § 1229b(b)(1). 

Under § 1229b(b)(1), the Attorney General “may cancel removal” 

of an alien “who is inadmissible or deportable” if he satisfies these 

four requirements for eligibility: (1) he has been continuously 

present in the United States for at least ten years; (2) he has been a 

“person of good moral character” during that period; (3) he has not 

been convicted of any specified criminal offenses; and (4) his 

“removal would result in exceptional and extremely unusual 

hardship” to a qualifying relative who is a U.S. citizen or lawful 

permanent resident. 8 U.S.C. § 1229b(b)(1)(A)-(D). The IJ found 

Ponce Flores failed to establish these three requirements for 

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eligibility: his continuous physical presence, his good moral 

character, or that his U.S.-citizen children will face exceptional and 

extremely unusual hardship as a result of his removal. Because the 

BIA focused on only the missing hardship requirement, we do too.

As to the hardship requirement for eligibility, the IJ 

acknowledged that Nancy’s autism was serious and lifelong. The 

IJ concluded, however, that Ponce Flores failed to establish 

(1) Nancy was currently enrolled in a special school or program in 

Texas, (2) the kind of relationship Ponce Flores had with Nancy 

given that she lived in Texas, (3) what financial assistance he 

provided her, (4) whether Nancy received subsidized medical 

assistance, and (5) whether Lizet Cornejo could work or had other 

means of support. The IJ stressed that Ponce Flores had not 

submitted corroborating documentation, such as affidavits from 

his wife or others, transportation receipts, wire transfers, or bank 

statements. 

E. BIA Appeal and Motion to Reopen Based on Ineffective 

Assistance 

After retaining new counsel, Ponce Flores appealed the IJ’s 

denial to the BIA. Ponce Flores’s appeal challenged the IJ’s findings 

that Ponce Flores (1) lacked credibility; (2) had not shown ten years 

of continuous physical presence; and (3) had not established the 

requisite hardship to his daughter Nancy. Ponce Flores contended

that but for counsel’s ineffective assistance, the IJ would not have 

made these findings. 

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Ponce Flores also moved to remand and reopen his 

cancellation-of-removal application due to attorney Varga’s 

ineffective assistance.1 Ponce Flores contended that the 

inconsistencies and missing evidence were a direct result of Varga’s 

failures to consult with Ponce Flores before completing and 

submitting his application, to communicate with and prepare 

Ponce Flores for his hearing, and to obtain and submit evidence to 

support Ponce Flores’s application. 

Ponce Flores attached to his motion new evidence, 

including (1) medical and educational reports and evaluations 

confirming Nancy’s learning disabilities and her continued 

placement in special education programs in Texas; (2) records

indicating Ponce Flores’s financial support for and involvement 

with his family in Texas; (3) documents about his monthly flights 

to Dallas; (4) his declaration summarizing his agreement with 

Varga and Varga’s deficient actions; (5) documents showing that 

Ponce Flores notified Varga of allegations of ineffective assistance

and Varga responded to those allegations; and (6) evidence that 

Ponce Flores filed a complaint with the Attorney Grievance 

Committee in New York, where Varga was admitted to practice 

law. Before the BIA, Ponce Flores argued: (1) his evidence 

complied with the BIA’s procedural requirements for ineffective 

1 Ponce Flores styled his motion as a “Motion to Remand Proceedings Due 

To Ineffective Assistance of Counsel.” He requested that the BIA “remand” 

his case. 

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assistance claims set forth in Matter of Lozada, 19 I. & N. Dec. 637 

(BIA 1988), and (2) he had shown the requisite prejudice to reopen 

his application for cancellation of removal. 

F. BIA Decision Affirming IJ and Denying Motion to Reopen 

In January 2021, the BIA dismissed Ponce Flores’s appeal of 

the IJ’s decision and denied his motion to reopen and remand his 

application for cancellation of removal for further consideration.2 

As to Ponce Flores’s ineffective assistance claim, the BIA 

concluded that (1) he had “identified deficiencies in his 

representation by former attorneys,” but (2) he had not shown 

prejudice “as a result of his former attorneys’ alleged 

ineffectiveness so as to have affected the outcome of these

proceedings.” As to the IJ’s hardship finding, the BIA “presum[ed]

without deciding” that Ponce Flores was credible, considered his 

2 Although Ponce Flores styled his motion as a motion to remand, his motion 

relied on new evidence of both attorney Varga’s ineffective assistance and 

Ponce Flores’s eligibility for cancellation of removal and sought additional 

proceedings to consider the new eligibility evidence. The BIA treated Ponce 

Flores’s motion as a “motion to reopen and remand.” See Chacku v. U.S. Att’y 

Gen., 555 F.3d 1281, 1286 (11th Cir. 2008) (“[I]f a motion to remand seeks to 

introduce evidence that has not previously been presented, it is generally 

treated as a motion to reopen under 8 C.F.R. § 1003.2(c).” (quotation marks

omitted)); Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992) (“[W]here a 

motion to remand is really in the nature of a motion to reopen . . . , it must 

comply with the substantive requirements for such motions.”). Further, 

where “a motion to remand seeks additional proceedings to introduce 

additional evidence, we apply the same standard of review as a motion to 

reopen.” Sow v. U.S. Att’y Gen., 949 F.3d 1312, 1317 (11th Cir. 2020).

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new evidence, and reviewed de novo the IJ’s hardship finding. 

After doing so, the BIA determined that Ponce Flores did not 

establish that his removal would result in exceptional and unusual 

hardship to his qualifying U.S.-citizen daughters. Ponce Flores thus 

had not shown his eligibility for cancellation of removal.

The BIA noted Ponce Flores’s hearing testimony that he had 

lived apart from his family for over a year, that he supported them 

financially and visited monthly, and that his daughters would 

remain in the United States with their mother even if Ponce Flores 

was removed to Mexico. The BIA concluded Ponce Flores had 

“established that his eldest daughter suffers from severe autism,” 

but stressed that Ponce Flores testified she was covered by statefunded health insurance in Texas. The BIA determined that “the 

record does not suggest she will lose that coverage or access to 

medication, treatment, or educational accommodations” upon 

Ponce Flores’s removal. 

The BIA also acknowledged that if Ponce Flores were 

removed, his daughters would likely suffer emotional hardship and 

would not have the “same standard of living in the United States.” 

Even considering all the hardship evidence and factors 

cumulatively, the BIA determined that Ponce Flores had “not 

demonstrated the requisite exceptional and extremely unusual 

hardship” to his daughters that was needed to establish eligibility 

for cancellation of removal. The BIA denied his motion to reopen 

and remand. The BIA declined to “reach whether [Ponce Flores] 

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satisfied the other statutory requirements” for eligibility for 

cancellation of removal. 

Ponce Flores timely filed a petition for review. In his 

petition, Ponce Flores argues that his former counsel’s ineffective 

assistance caused the IJ’s denial of his application for cancellation 

of removal and denied him constitutional due process. He also 

contends the BIA abused its discretion when it denied his motion 

to reopen and remand based on his former counsel’s ineffective 

assistance. 

IV. BIA DECISION AFFIRMING IJ’S DENIAL OF 

CANCELLATION OF REMOVAL

A. Standard of Review 

We review only the BIA’s decision as the final agency 

decision except to the extent the BIA adopts the IJ’s decision. Ayala 

v. U.S. Att’y Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). We review 

questions of law de novo. Id. at 948. We review our own subject 

matter jurisdiction de novo. Blanc v. U.S. Att’y Gen., 996 F.3d 

1274, 1277 (11th Cir. 2021).

B. Jurisdiction 

Congress has restricted our jurisdiction over certain 

immigration matters. Under 8 U.S.C. § 1252(a)(2)(B), this Court 

lacks jurisdiction “to review . . . any judgment regarding the 

granting of relief under section . . . 1229b” for cancellation of 

removal. INA § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i). This 

provision deprives us of jurisdiction “to review facts found as part 

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of discretionary-relief proceedings.” Patel v. Garland, 596U.S. ___, 

142 S. Ct. 1614, 1627 (2022), aff’g sub nom. Patel v. U.S. Att’y Gen., 

971 F.3d 1258 (11th Cir. 2020) (en banc). This jurisdictional bar 

includes the “exceptional and extremely unusual hardship” factual 

finding under § 1229b(b)(1)(D). Flores-Alonso v. U.S. Att’y Gen., 

36 F.4th 1095, 1099-1100 (11th Cir. 2022) (explaining that we can 

only review “any legal error with respect to the application of the 

law to those facts established in the BIA’s decision”).

Notwithstanding § 1252(a)(2)(B)’s jurisdictional bar, we 

retain jurisdiction to consider constitutional claims and questions 

of law. 8 U.S.C. § 1252(a)(2)(D); Patel, 971 F.3d at 1262. However, 

“a party may not dress up a claim with legal or constitutional 

clothing to invoke our jurisdiction.” Patel, 971 F.3d at 1272. “Such 

a claim must be colorable.” Id. We have said that for a claim to be 

“colorable,” it must be “non-frivolous,” see Alvarez Acosta v. U.S. 

Att’y Gen., 524 F.3d 1191, 1197 (11th Cir. 2008), and “have some 

possible validity,” Arias v. U.S. Att’y Gen., 482 F.3d 1281, 1284 n.2 

(11th Cir. 2007) (quotation marks omitted). “[W]here a 

constitutional claim has no merit[,] we do not have jurisdiction.” 

Arias, 482 F.3d at 1284 (cleaned up).

C. Constitutional Due Process Claim Based on Ineffective 

Assistance 

Here, Ponce Flores argues that but for his attorney Varga’s 

deficient performance, he would have successfully carried his 

burden to prove his eligibility for cancellation of removal and 

therefore he was deprived of his Fifth Amendment right to due 

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process of law. We lack jurisdiction to review Ponce Flores’s 

constitutional due process claim because it is wholly without merit 

and therefore not colorable. 

As we recognized in Mejia Rodriguez, when an alien retains 

counsel, an alien has a right to effective assistance of that counsel 

in the underlying removal proceedings. Mejia Rodriguez v. Reno, 

178 F.3d 1139, 1146 (11th Cir. 1999); see also Gbaya v. U.S. Att’y 

Gen., 342 F.3d 1219, 1221 (11th Cir. 2003). This is because a 

removal “proceeding implicates an alien’s liberty interest, which is 

protected by the Due Process Clause.” Mejia Rodriguez, 178 F.3d 

at 1146. This is Mejia Rodriguez’s first principle.

In contrast, “the failure to receive relief that is purely 

discretionary in nature does not amount to a deprivation of a 

liberty interest” and thus cannot deprive an alien of due process 

under the Fifth Amendment. Id. at 1146-48. This is Mejia 

Rodriguez’s second principle.

Specifically, in Mejia Rodriguez, this Court concluded that 

an alien is not deprived of due process where his counsel’s deficient 

performance prevented the alien from being eligible for 

discretionary relief from deportation. Id. at 1148. The alien in 

Mejia Rodriguez, much like Ponce Flores here, did not contest his 

grounds for deportation. Id. at 1146. Instead, Mejia Rodriguez 

sought a suspension of his deportation, an earlier form of 

discretionary relief that was the precursor to the cancellation of 

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removal that Ponce Flores now seeks.3 Id. at 1145-46. Mejia 

Rodriguez argued that but for his attorney’s ineffective assistance

during his deportation proceedings, “he would have been eligible 

for suspension of deportation.” Id. at 1146. 

This Court concluded that Mejia Rodriguez was not 

deprived of due process under the Fifth Amendment. Id. at 1148. 

The Court explained that because suspension of deportation was 

“an act of grace” committed to the “unfettered discretion” of the 

Attorney General, “even if an alien meets the statutory 

requirements for eligibility . . . , the alien [was] not in any way 

entitled to this exceptional remedy.” Id. at 1147 (quotation marks 

omitted). In fact, the “alien’s actual chances of receiving such 

discretionary relief are too speculative, and too far beyond the 

capability of judicial review, to conclude that the alien has actually 

suffered prejudice from being ineligible for suspension of 

deportation.” Id. at 1148 (stating “this Court cannot predict the 

subjective and fact-intensive judgments that the Attorney General 

3 Suspension of deportation had very similar eligibility requirements,

including continuous physical presence in the United States for a period of 

years, good moral character, and an “exceptional and extremely unusual 

hardship” to a qualifying relative who was a U.S. citizen. Mejia Rodriguez, 

178 F.3d at 1141 n.2 (quotation marks omitted). In 1996, the Illegal 

Immigration Reform and Immigrant Responsibility Act repealed the provision 

authorizing suspension of deportation and replaced it with a provision 

authorizing cancellation of removal. Id. at 1142 n.3; see also Pub. L. No. 104-

208, div. C, tit. III, subtit. A, §§ 304, 308(b)(7), 110 Stat. 3009-575, 3009-616 

(Sept. 30, 1996). 

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would make in deciding whether to grant extraordinary relief, such 

as the suspension of deportation”).

Consequently, this Court in Mejia Rodriguez held that “an 

attorney’s deficient representation does not deprive an alien of due 

process if the deficient representation merely prevents the alien 

from being eligible for suspension of deportation.” Id. Since Mejia 

Rodriguez, this Court has continued to apply this general rule to 

other forms of discretionary relief, including cancellation of 

removal. See, e.g., Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 548-49 

(11th Cir. 2011) (holding absence of interpreter at hearing on 

applications for waiver of removability and cancellation of removal 

did not violate due process given alien had “no cognizable due 

process interest because those forms of relief are discretionary”); 

Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th Cir. 2008) 

(holding alien’s due process claim based on BIA’s application of a 

former regulation could not prevail because he had “no 

constitutionally protected interest either in the granting of his 

motions [to reopen or for reconsideration] or in adjustment of 

status,” all discretionary forms of relief); Garcia v. Att’y Gen. of 

U.S., 329 F.3d 1217, 1223-24 (11th Cir. 2003) (holding alien’s due 

process claim based on counsel’s ineffective assistance in preparing 

application for waiver of excludability lacked merit because such 

waiver, “while guided by interpretive decisions, remains a purely 

discretionary form of relief”); Mohammed v. Ashcroft, 261 F.3d 

1244, 1247-51 (11th Cir. 2001) (holding that alien’s due process 

claim based on retroactive application of an amended statute that 

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effectively foreclosed cancellation of removal failed because he 

“ha[d] no constitutionally-protected right to discretionary relief 

from removal”).

Here, Ponce Flores sought cancellation of removal, a form 

of relief from removal that, like its predecessor suspension of 

deportation, is purely discretionary. See INA § 240A(b); 8 U.S.C. 

§ 1229b(b) (“The Attorney General may cancel removal . . . .”

(emphasis added)); Pereida v. Wilkinson, 592 U.S. ___, 141 S. Ct. 

754, 759 (2021) (explaining that while an alien facing removal may 

ask the Attorney General for cancellation, establishing the 

statutory requirements “still yields no guarantees; it only renders 

an alien eligible to have his removal order cancelled” and that the 

Attorney General has discretion “to grant or withhold that relief”). 

As such, under our precedent, Ponce Flores does not have a 

constitutionally protected liberty interest in obtaining cancellation 

of removal. See Mejia Rodriguez, 178 F.3d at 1148. Thus, Ponce 

Flores cannot show that his former counsel’s deficient performance 

deprived him of liberty without due process.

Ponce Flores, nonetheless, argues that this Court has 

“consistently reviewed due process claims based on ineffective 

assistance of counsel in connection with discretionary 

applications,” suggesting Mejia Rodriguez has been undermined. 

In this regard, Ponce Flores cites these four decisions: (1) Dakane 

v. United States Attorney General, 399 F.3d 1269 (11th Cir. 2005), 

(2) Sow v. United States Attorney General, 949 F.3d 1312 (11th Cir. 

2020), (3) Frech v. United States Attorney General, 491 F.3d 1277

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(11th Cir. 2007), and (4) Ali v. United States Attorney General, 643 

F.3d 1324 (11th Cir. 2011). We review each decision below.

For starters, none of these decisions held that an alien has a 

constitutionally protected liberty interest in purely discretionary 

relief from a removal order, such as cancellation of removal. None 

of these found a constitutional due process violation. Rather, to 

the extent the decisions review ineffective assistance claims, they 

did so in the context of a motion to reopen and based on an alien’s 

statutory right to have counsel present at the alien’s expense. 

Let’s begin with Dakane. Our Court in Dakane stated: “The 

sole issue before us in this appeal is whether Dakane was required 

to demonstrate in his motion to reopen that his counsel’s 

ineffective assistance prejudiced his removal proceedings.” 399 

F.3d at 1272. Our holding in Dakane was that: (1) “a petitioner 

claiming ineffective assistance of counsel in a motion for 

reconsideration must also show prejudice”; (2) “[p]rejudice exists 

when the performance of counsel is so inadequate that there is a 

reasonable probability that but for the attorney’s error, the 

outcome of the proceedings would have been different”; and 

(3) the BIA had not erred in determining Dakane failed to show 

prejudice. Id. at 1274-75. 

We recognize that Dakane in dicta also stated “[i]t is well 

established in this Circuit that an alien in civil deportation 

proceedings . . . has the constitutional right under the Fifth 

Amendment Due Process Clause right to a fundamentally fair 

hearing to effective assistance of counsel where counsel has been 

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obtained,” citing Gbaya v. United States Attorney General, 342 

F.3d 1219, 1221 (11th Cir. 2003). Id. at 1273. 

Dakane, however, added a clarifying footnote six to its 

Gbaya cite that points out (1) Dakane is an inadmissible alien; and 

(2) “inadmissible aliens such as Dakane have traditionally not been 

able to claim constitutional due process protections in exclusion 

proceedings”; but (3) “they are ensured a fundamentally fair 

hearing through statutory protections provided for by Congress”; 

and (4) “Congress has long recognized the importance of counsel 

in immigration proceedings as evidenced by the statutory right to 

presence of counsel under § 1362 of the INA.” Id. at 1273 n.6

(quotation marks omitted) (emphasis added). The Dakane Court 

then cited with approval Xu Yong Lu v. Ashcroft, 259 F.3d 127, 132 

(3d Cir. 2001), in which the Third Circuit concluded that an 

excludable alien facing exclusion enjoys a statutory right under 

§ 1362 to assistance of counsel at his expense and this is necessarily 

a right to effective assistance of that counsel. Dakane, 399 F.3d at 

1273 n.6; see also Flores-Panameno v. U.S. Att’y Gen., 913 F.3d 

1036, 1040 (11th Cir. 2019) (citing Gbaya for the principle that 

“8 U.S.C. § 1362 provides that aliens have the right to retain private 

counsel in their removal proceedings” and thus “the right to 

effective assistance of counsel” so retained).

Our point is that Dakane does not undermine Mejia

Rodriguez’s holding that aliens do not have a constitutionally

protected liberty interest in discretionary relief from removal and 

do not have a constitutional due process right to effective assistance 

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of counsel in connection with discretionary applications. Instead, 

Dakane involved a statutory protection. While Ponce Flores elides 

this distinction, it is a critical one. Our Court has not permitted a 

constitutional due process claim based on the denial of

discretionary relief like cancellation of removal. So Ponce Flores’s 

argument that he can raise a constitutional due process claim based 

on ineffective assistance of counsel fails.4

Ponce Flores’s citation to Sow fares no better. Sow 

presented himself at the Mexico border, seeking asylum for his fear 

of returning to Guinea. Sow, 949 F.3d at 1314. After a merits 

hearing where Sow was represented by counsel, the IJ denied his 

asylum application. Id. at 1314-16. The IJ stated that Sow “should, 

in fact, be given asylum based upon past persecution,” if it were not 

for the evidentiary issues that Sow’s attorney had allegedly 

4 Notably too, Gbaya cites Mejia Rodriguez, and Gbaya states only that, “It is 

well established that ‘[a]liens enjoy the right to the effective assistance of 

counsel in deportation proceedings.’” 342 F.3d at 1221 (quoting Mejia

Rodriguez, 178 F.3d at 1146) (alteration in original). While both Dakane and 

Gbaya quote this first principle in Mejia Rodriguez, those decisions do not 

quote the equally well established second principle in Mejia Rodriguez about 

discretionary relief like cancellation of removal at issue here. Indeed, the 

quotes in both Dakane and Gbaya reference deportation, not discretionary 

relief from deportation.

In any event, Dakane and Gbaya involve applications for asylum, 

which is different from other forms of discretionary relief. We need not reach 

and thus do not opine on what constitutional due process rights a petitioner 

may have in connection with an asylum application.

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disregarded. Id. at 1319. Sow, represented by new counsel, 

appealed to the BIA and filed a motion to remand based on 

ineffective counsel, which the BIA denied. Id. at 1316-17. In Sow, 

this Court reviewed only whether the BIA had abused its discretion 

in denying a motion to reopen based on ineffective assistance, 

concluding that it had. See id. at 1313 (quotation marks omitted).

Our Court in Sow did not need to speculate as to whether 

the outcome may have been different if counsel had performed

adequately because “[t]he IJ’s uniquely direct statement 

confirm[ed] that it would have.” Id. at 1319. Sow did not address, 

or even mention, whether the alien had a constitutionally

protected liberty interest in discretionary relief from removal.

Ponce Flores also cites Ali, which involved a discretionary 

waiver under INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H). 643 

F.3d at 1327. The alien claimed that his counsel’s decision to 

concede removability was ineffective assistance. Id. at 1329-30. 

The ineffective assistance alleged in Ali was not in connection with 

his waiver application. Ali does not undermine Mejia Rodriguez’s 

holding that an alien has no liberty interest in a purely discretionary 

form of relief.

Ponce Flores’s last case, Frech, is equally inapposite. The 

alien in Frech sought adjustment of status under § 202 of the 

Nicaraguan Adjustment and Central American Relief Act of 1997, 

a mandatory form of relief if the eligibility requirements are met. 

491 F.3d at 1278-79 & n.1. Frech did not address either 

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21-10600 Opinion of the Court 21

discretionary relief from removal or a claim of ineffective assistance 

of counsel. 

The alien in Frech challenged the IJ’s denial of his motion 

for a change of venue from Miami to Houston. Id. at 1279. Frech’s 

home, business, retained attorney, and witnesses were in Houston. 

Id. at 1279-80. After the IJ denied the venue motion, Frech’s Texas 

counsel moved to withdraw and the IJ granted that motion. Id. at 

1280. At the merits hearing in Miami, Frech appeared pro se, and 

the IJ denied adjustment of status and the relief Frech sought based 

on hardship to his family. Id. The BIA affirmed. Id.

In his petition for review, Frech argued the denial of his 

venue motion denied him constitutional due process because it 

deprived him of his right to be represented by the counsel of his 

choice and the ability to present evidence. Id. at 1281-82. Our

Court stated that the deprivation of an alien’s right to counsel of 

his choice in removal proceedings “would, under certain 

circumstances, constitute a due process violation.” Id. at 1282

(emphasis added). Yet our Court skipped over what those 

circumstances might be and whether they were met. This Court 

denied Frech’s petition because he “ha[d] not shown that he was 

substantially prejudiced by any due process violation.” Id.

(explaining Frech had not shown the dismissal of his attorney in 

Texas “was related to the location of the hearing” or that he had 

“sought a continuance thereafter for the purpose of obtaining 

another attorney” in Florida).

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Nothing in Frech (or Dakane, Sow, or Ali) undermines Mejia

Rodriguez and our subsequent decisions squarely holding that an 

alien does not have a constitutionally protected liberty interest in 

purely discretionary forms of relief like cancellation of removal.5

Because Ponce Flores’s constitutional due process claim—

even if based on ineffective assistance—is meritless, it is not 

colorable. Accordingly, we lack jurisdiction under 8 U.S.C.

§ 1252(a)(2)(D) to review the BIA’s denial of Ponce Flores’s 

application for cancellation of removal. See Acosta Alvarez, 524 

F.3d at 1197; Arias, 482 F.3d at 1284 n.2.6 

D. Hardship Requirement 

Although not raised as a separate argument, Ponce Flores’s 

petition does assert that the BIA erred in finding that, even 

assuming he was credible, “he did not establish the requisite 

hardship to his daughters.” Ponce Flores claims “the BIA failed to 

consider all hardship factors in the aggregate,” which he contends 

violated Matter of Monreal-Aguinaga, 23 I & N. Dec. 56, 63-64 (BIA 

2001). 

5 While we take time to review these cases cited by Ponce Flores, we point 

out Mejia Rodriguez was decided in 1999, and these decisions came later. 

Under our prior panel precedent rule, we are bound by Mejia Rodriguez. See

Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

6 Later on, we discuss Ponce Flores’s motion to reopen filed before the BIA 

and his ineffective assistance of counsel claim under the BIA’s precedent in 

Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).

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To the extent Ponce Flores is challenging the BIA’s decision 

affirming the IJ’s hardship determination, we lack jurisdiction to 

review this issue. Under our binding precedent, this Court lacks 

jurisdiction to review the denial of cancellation of removal

grounded on the fact-based finding that the alien failed to show 

exceptional and extremely unusual hardship to a qualifying 

relative. See Patel, 971 F.3d at 1279 (“[A]ll eligibility 

determinations for the five enumerated categories of discretionary 

relief are barred from review.”); Flores-Alonso, 36 F.4th at 1100. 

Further, in Flores-Alonso, this Court held that an argument

like the one Ponce Flores makes here—that the BIA failed to 

consider all the hardship factors in the aggregate “in the way that 

Matter of Monreal-Aguinaga instructs it to do, even though it cited 

the proper legal standard”—does not present a legal question this 

Court has jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). 36 

F.4th at 1100. “As long as the BIA cites and proceeds to apply the 

proper legal standard, . . . we cannot make legal error out of an 

inherently subjective determination of whether an applicant’s 

relatives will experience exceptional and extremely unusual 

hardship.” Id.

In Ponce Flores’s appeal, the BIA cited Matter of MonrealAguinaga, among other BIA precedents pertaining to the showing 

of hardship, and explicitly stated it had “consider[ed] all of the 

hardship factors in this case cumulatively, including the hardships

that may result from the medical, economic, and emotional 

factors.” Hence, as to the hardship requirement for eligibility, 

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24 Opinion of the Court 21-10600

Ponce Flores has not raised a legal question that we have 

jurisdiction to review.7

V. BIA’S DECISION DENYING MOTION TO REOPEN 

CANCELLATION-OF-REMOVAL APPLICATION 

Ponce Flores argues that the BIA abused its discretion in 

denying his motion to reopen and remand based on attorney 

Varga’s ineffective assistance before the IJ. Ponce Flores contends 

the BIA (1) failed to follow its own precedent in Lozada, and (2) 

erred in determining he had not shown prejudice as a result of that 

ineffective assistance. Ponce Flores also seeks to revisit his 

constitutional due process claims and the BIA’s hardship 

determination in denying his motion to reopen. 

“The decision to grant or deny a motion to reopen . . . is 

within the discretion of the BIA, 8 C.F.R. § 1003.2(a), and we have 

recognized that this discretion is very broad.” Scheerer, 513 F.3d 

at 1253 (quotation marks omitted). “The BIA may deny a motion 

7 Ponce Flores also argues the IJ erred in finding he did not establish 

continuous physical presence because the deficient notice to appear did not 

trigger the “stop-time rule” and the IJ’s adverse credibility finding is not 

supported by substantial evidence. The BIA, however, explicitly declined to 

reach these other grounds that the IJ found warranted denial of Ponce Flores’s 

application, and “[w]e do not consider issues that were not reached by the 

BIA.” See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). In 

addition, because Ponce Flores’s failure to satisfy the requisite hardship 

element is alone sufficient to deny his application, we also need not address 

these other grounds.

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21-10600 Opinion of the Court 25

to reopen, if the alien fails to establish a prima facie case” of 

eligibility for relief. Butalova v. U.S. Att’y Gen., 768 F.3d 1179, 1182 

(11th Cir. 2014). The movant “bears a heavy burden” in showing 

that reopening is warranted because “motions to reopen are 

disfavored, especially in removal proceedings.” Zhang v. U.S. Att’y 

Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).

A. Standard of Review 

We review the BIA’s denial of a motion to reopen removal 

proceedings for an abuse of discretion. Jiang v. U.S. Att’y Gen., 568 

F.3d 1252, 1256 (11th Cir. 2009). “Our review is limited to 

determining whether the BIA exercised its discretion in an arbitrary 

or capricious manner.” Id. “The BIA abuses its discretion when it 

misapplies the law in reaching its decision.” Ferreira v. U.S. Att’y 

Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). We review de novo our 

own subject matter jurisdiction. Blanc, 996 F.3d at 1277. 

B. Jurisdiction 

“Generally, we have jurisdiction to review the denial of a 

motion to reopen.” Butalova, 768 F.3d at 1182. 

However, when direct review of the underlying order is 

barred by one of the INA’s jurisdiction-stripping provisions, we 

also lack “jurisdiction to entertain an attack on that order mounted 

through” a motion to reopen. Patel v. U.S. Att’y Gen., 334 F.3d 

1259, 1262 (11th Cir. 2003) (concluding 8 U.S.C. § 1252(a)(2)(C)’s 

criminal-alien bar deprived this Court of jurisdiction to review the 

denial of a motion to reopen based on a state court’s nunc pro tunc

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26 Opinion of the Court 21-10600

order modifying the alien’s sentence); see also Butalova, 768 F.3d 

at 1183-84 (concluding 8 U.S.C. § 1252(a)(2)(B)(ii) deprived this 

Court of jurisdiction to review the BIA’s denial of a motion to 

reopen seeking discretionary relief as a battered spouse under 8 

U.S.C. § 1154(a)(1)(A)(iii)); Guzman-Munoz v. U.S. Att’y Gen., 733 

F.3d 1311, 1313-14 (11th Cir. 2013) (concluding 8 U.S.C. 

§ 1252(a)(2)(B)(i) deprived this Court of jurisdiction to review the 

BIA’s denial of a motion to reopen seeking discretionary special 

cancellation of removal as the battered spouse of a Cuban national 

under 8 U.S.C. § 1229b(b)(2)). 

Guzman-Munoz is particularly instructive because it 

addressed a motion to reopen proceedings in which the alien, like 

Ponce Flores, unsuccessfully sought discretionary cancellation of 

removal under § 1229b(b) and then filed a motion to reopen with 

the BIA. 733 F.3d at 1312. The alien in Guzman-Munoz sought 

special cancellation of removal as a battered spouse under 

§ 1229b(b)(2), rather than regular cancellation of removal under 

§ 1229b(b)(1). Id. As in Ponce Flores’s case, review of the 

underlying order denying Guzman-Munoz’s application was 

barred by § 1252(a)(2)(B)(i). See id. at 1313. Under these 

circumstances, this Court concluded it also lacked jurisdiction to 

review the BIA’s denial of Guzman-Munoz’s motion to reopen her 

cancellation of removal proceedings and dismissed her petition. Id.

at 1314. 

In doing so, we stressed that § 1252(a)(2)(B)(i) strips this 

Court of jurisdiction to review “judgments ‘regarding the granting 

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of relief under section . . . 1229b.’” Id. at 1313 (emphasis added) 

(quoting 8 U.S.C. § 1252(a)(2)(B)(i)). We reasoned that 

“§ 1252(a)(2)(B)(i) does not speak in terms of final orders, prima 

facie cases, or motions to reopen. Instead, § 1252(a)(2)(B)(i) simply 

bars review of discretionary agency judgments granting or denying 

relief under § 1229b.” Id. at 1313-14 (emphasis added). To hold 

otherwise would permit an “end-run” whereby petitioners “would 

be able to obtain appellate-court jurisdiction simply by raising 

§ 1229b arguments on motions to reopen.” Id. at 1314.

Finally, although we noted that we “retain[ed] jurisdiction 

to review constitutional challenges” under § 1252(a)(2)(D), 

Guzman-Munoz had “raise[d] no such challenge.” Id. Applying 

these principles, we examine the extent to which we have 

jurisdiction to consider Ponce Flores’s challenge to the denial of his 

motion to reopen based on ineffective assistance.

C. Constitutional Due Process Claims 

To the extent Ponce Flores contends the BIA abused its 

discretion in denying his motion to reopen because his counsel’s 

ineffective assistance deprived him of constitutional due process 

under the Fifth Amendment, we lack jurisdiction to review this 

claim mounted through a motion to reopen for the same reasons 

we cannot review this claim directly. Because Ponce Flores has no 

protected liberty interest in discretionary cancellation of removal, 

his Fifth Amendment due process claim is not colorable for 

purposes of 8 U.S.C. § 1252(a)(2)(D). See supra Section IV.C. To 

hold otherwise would permit an end-run around the jurisdictionUSCA11 Case: 21-10600 Document: 35-1 Date Filed: 04/05/2023 Page: 27 of 34
28 Opinion of the Court 21-10600

stripping provisions of 8 U.S.C. § 1252(a)(2)(B)(i) and (a)(2)(D), 

which together bar us from reviewing any judgment regarding the 

granting of cancellation of removal under § 1229b(b), except where 

a colorable constitutional claim is presented. See Guzman-Munoz, 

733 F.3d at 1314. 

To the extent Ponce Flores contends the BIA’s own denial 

of his motion to reopen itself deprived him of constitutional due 

process, that claim also lacks merit. An alien cannot establish a 

Fifth Amendment due process violation based on the BIA’s denial 

of a motion to reopen because an alien in those circumstances has 

no constitutionally protected liberty interest in the granting of a 

motion to reopen. See Scheerer, 513 F.3d at 1253 (“Because 

Scheerer has no constitutionally protected interest either in the 

granting of his motions [to reopen and to reconsider] or in 

adjustment of status, he cannot establish a due process violation 

based on the BIA’s decisions.”); Butalova, 768 F.3d at 1183 (“An 

alien, however, does not have a constitutionally protected interest 

in discretionary forms of relief, such as the granting of a motion to 

reopen.”).

Having determined Ponce Flores’s ineffective assistance 

claim raises no colorable due process violation that we can review, 

we consider whether his ineffective assistance claim otherwise 

presents a reviewable legal question.

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D. Ineffective Assistance Claim Under Matter of Lozada 

Examination of our jurisdiction over an ineffective 

assistance claim requires some background about that type of 

claim. Under § 1362, Ponce Flores has a right to counsel at his own 

expense and therefore is entitled to effective assistance of the 

counsel he retains. Dakane, 399 F.3d at 1273 (citing 8 U.S.C. 

§ 1362).8 The BIA permits an alien to seek to reopen removal 

proceedings based on a claim of ineffective assistance of his 

retained counsel. Id.; Matter of Lozada, 19 I. & N. Dec. at 638-39. 

To do so, the BIA requires the alien to meet three procedural 

requirements and show prejudice resulting from counsel’s 

deficiencies. Matter of Lozada, 19 I. & N. Dec. at 639-40; Gbaya, 

342 F.3d at 1223 (“The BIA does not abuse its discretion by filtering 

ineffective assistance of counsel claims through the screening 

requirements of Lozada . . . .”). 

Procedurally, Lozada requires that an ineffective assistance 

claim be supported by: (1) an affidavit attesting to the relevant facts 

about the agreement with former counsel about actions to be taken 

and former counsel’s representations in that regard; (2) evidence 

that former counsel was informed of the allegations and provided 

an opportunity to respond and of former counsel’s response, if any; 

and (3) evidence as to whether the alien filed a complaint against 

8 While Dakane involved an inadmissible alien, § 1362 does not distinguish 

between inadmissible and removable aliens. See 8 U.S.C. § 1326.

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former counsel with the appropriate disciplinary authorities. 19 I. 

& N. Dec. at 639. 

“[I]n addition to substantial, if not exact, compliance with 

the procedural requirements of Lozada, a petitioner claiming 

ineffective assistance of counsel . . . must also show prejudice.” 

Dakane, 399 F.3d at 1274 & n.7 (citing Matter of Lozada, 19 I. & N. 

Dec. at 640). Under Lozada’s prejudice component, “[p]rejudice 

exists when the performance of counsel is so inadequate that there 

is a reasonable probability that but for the attorney’s error, the 

outcome of the proceedings would have been different.” Id. at 

1274. 

With this background, our threshold question is whether we 

have jurisdiction to review the BIA’s denial of Ponce Flores’s 

ineffective assistance claim. Ponce Flores argues he raises these 

two reviewable legal questions: (1) the BIA erred in suggesting he 

failed to comply with Lozada’s procedural requirements, when in 

fact he fully complied; and (2) the BIA erred in its Lozada prejudice 

determination. 

As to the procedural requirements, the BIA cited the proper 

legal standard for ineffective assistance claimsfrom its own Lozada. 

Although the proper legal standard is a reviewable legal question, 

we cannot make a legal error out of a BIA factual determination 

that the evidence did or did not satisfy Lozada’s three procedural 

requirements. See Alvarez Acosta, 524 F.3d at 1196-97. Whether 

in fact Ponce Flores’s particular evidence was sufficient to satisfy or 

substantially comply with the BIA’s Lozada procedural 

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requirements does not present a legal question that this Court has 

jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). 

Alternatively, and in any event, the BIA did not find that 

Ponce Flores failed to comply with Lozada’s procedural 

requirements. The BIA instead concluded that “even if [it] were to 

find [Ponce Flores] had complied with the Lozada requirements, 

[Ponce Flores] must also establish he suffered prejudice as a result 

of his former attorneys’ alleged ineffectiveness.” The BIA then 

found that Ponce Flores had “identified deficiencies in his 

representation by former attorneys,” but concluded he had not 

shown he suffered prejudice as a result. In short, there is no merit 

to Ponce Flores’s claim that the BIA committed legal error with 

respect to Lozada’s three procedural requirements.

As for the BIA’s prejudice determination, the BIA presumed 

Ponce Flores’s credibility and reviewed all the evidence, including 

his new evidence, de novo. The BIA then determined he “ha[d] 

not demonstrated that but for the deficiency in his prior counsels’ 

representation, he would have met his burden of proof to 

demonstrate the requisite hardship to his qualifying relative 

children.” As a result, Ponce Flores had not demonstrated he 

“suffered prejudice as a result of his former attorneys’ alleged 

ineffectiveness so as to have affected the outcome of these

proceedings.” 

In other words, the BIA’s analysis of Lozada’s prejudice 

prong was commensurate with its de novo hardship 

determination. Stated another way, the BIA reviewed de novo all 

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32 Opinion of the Court 21-10600

of Ponce Flores’s new evidence and made its own determination 

that this new evidence still would not satisfy Ponce Flores’s burden 

to show the requisite hardship to his daughters under 

§ 1229b(b)(1)(D). 

As already discussed, under Flores-Alonso we lack 

jurisdiction to review directly the BIA’s hardship determination 

under § 1229b(b)(1)(D). 36 F.4th at 1099-1100. Therefore, we are 

also barred by § 1252(a)(2)(B)(i) from reviewing a challenge to the 

BIA’s hardship determination made in denying a motion to reopen. 

See Guzman-Munoz, 733 F.3d at 1314. The question then 

becomes, do we have jurisdiction to review the BIA’s prejudice 

determination under Lozada when it turned on the BIA’s de novo 

hardship determination based on Ponce Flores’s new evidence? 

Of course, whether the BIA applied the correct prejudice 

standard is a legal question we retain jurisdiction to review under 

§ 1252(a)(2)(D). In this case, there is no dispute that the BIA 

correctly stated the prejudice standard from Lozada. The BIA 

accepted all of Ponce Flores’s evidence and determined it would 

not have affected “the outcome of these proceedings.” Because the 

BIA applied the proper legal standards, it did not abuse its 

discretion. See Ferreira, 714 F.3d at 1243. 

Ponce Flores’s argument isolates the BIA’s finding that he 

failed to meet his burden of proof as to hardship. He claims the 

BIA abused its discretion because his new evidence established the 

requisite hardship and that the outcome of his proceedings would 

have been different. The first problem for Ponce Flores is that his 

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“argument that the BIA abused its discretion by failing to weigh an 

alien’s factual scenario presents a ‘garden-variety abuse of 

discretion argument—which can be made by virtually every alien

subject to a final removal order—[and] does not amount to a legal 

question under § 1252(a)(2)(D).’” Butalova, 768 F.3d at 1183 

(alteration in original) (quoting Alvarez Acosta, 524 F.3d at 1196-

97). 

The second problem for Ponce Flores’s particular case is that 

whether an alien carries his burden to show the requisite hardship 

under § 1229b(b)(1)(D) is a factual finding that § 1252(a)(2)(B)(i) 

deprives us of jurisdiction to review. See Flores-Alonso, 36 F.4th 

at 1099-1100. And, because the BIA’s denial of Ponce Flores’s 

ineffective assistance claim raised in his motion to reopen rested 

solely upon, and was commensurate with, the BIA’s fact-based 

hardship determination, we conclude § 1252(a)(2)(B)(i) deprives us 

of jurisdiction to review the BIA’s prejudice determination under 

the circumstances of this case. 

Ponce Flores relies on Sow, where the alien’s motion to 

remand was based on ineffective assistance, and we reviewed the 

BIA’s prejudice determination and reversed. See Sow, 949 F.3d at 

1318-19 (concluding “Sow established that counsel’s deficiencies 

prejudiced his case” and that “the unique facts of Sow’s case present 

the rare situation where we must find that the BIA was arbitrary 

and capricious in exercising its discretion” in denying his motion to 

remand). 

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Sow does not help Ponce Flores because there was no 

§ 1229b(b)(1) hardship determination at the heart of the BIA’s 

ruling in that case. The relief Sow sought was asylum, which is 

specifically exempted from the jurisdiction-stripping provision at 

issue here. Id. at 1314. Specifically, § 1252(a)(2)(B) deprives courts 

of jurisdiction to review “any other decision or action” by the 

Attorney General that the INA specifies is in the Attorney General’s 

discretion “other than the granting of relief under section 1158(a),” 

which is the asylum statute. See 8 U.S.C. § 1252(a)(2)(B)(ii). There 

was no jurisdiction-stripping provision in Sow to bar this Court’s 

review of the BIA’s prejudice determination.

In sum, to the extent Ponce Flores’s challenge to the denial 

of his motion to reopen rests on an argument that the BIA erred in 

ruling that he had not demonstrated that but for his counsel’s 

deficient performance, he would have proved the requisite 

hardship under § 1229b(b)(1)(D), we lack jurisdiction to entertain 

this claim under § 1252(a)(2)(B)(i). 

PETITION DISMISSED IN PART AND DENIED IN 

PART. 

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