[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-13821

Non-Argument Calendar

________________________

Agency No. A205-007-783

IMBERT ROMERO-JAIMES,

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(August 6, 2021)

Before JORDAN, NEWSOM and GRANT, Circuit Judges.

PER CURIAM: 

USCA11 Case: 20-13821 Date Filed: 08/06/2021 Page: 1 of 7
2

Imbert Romero-Jaimes seeks review of the Board of Immigration Appeals’ 

order affirming the Immigration Judge’s denial of his application for cancellation 

of removal under Immigration and Nationality Act § 240A(b), 8 U.S.C. 

§ 1229b(b). He first argues that the IJ erred in finding that he was not continuously 

physically present in the United States for ten years. Romero-Jaimes also raises 

substantive-due-process and equal-protection challenges to the “exceptional and 

extremely unusual hardship” standard in INA § 240A(b), 8 U.S.C. § 1229b(b). We 

dismiss the petition in part and deny it in part. 

I

First up, Romero-Jaimes’s argument about the IJ’s finding on continuous 

physical presence. Because we review the IJ’s decision only to the extent the BIA 

adopts it as its own, Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th 

Cir. 2009), where an issue reached by the IJ doesn’t form a part of the BIA’s 

decision, that issue is not properly before us, Gonzales v. U.S. Att’y Gen., 820 F.3d 

399, 403 (11th Cir. 2016). 

Here, the IJ determined that Romero-Jaimes did not meet one of the 

necessary preconditions to be eligible for the discretionary relief of cancellation of 

removal under INA § 240A(b), 8 U.S.C. § 1229b(b)—that of continuous physical 

presence in the United States for at least ten years preceding an application for 

cancellation of removal. But the BIA did not adopt that ground for its decision. 

USCA11 Case: 20-13821 Date Filed: 08/06/2021 Page: 2 of 7
3

Instead, it said that it was not addressing the issue of continuous physical presence 

at all. So, because that issue formed no part of the BIA’s decision, it plays no part 

in our review. See Gonzalez, 820 F.3d at 403; Martinez v. U.S. Att’y Gen., 446 

F.3d 1219, 1221 n.2 (11th Cir. 2006). 

II

Next, we address Romero-Jaimes’s challenges to the constitutionality of the 

“exceptional and extremely unusual hardship” standard in INA § 240A(b), 8 

U.S.C. § 1229b(b). The Attorney General has discretion to grant cancellation of 

removal to an alien 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 

determining whether removal would result in such hardship, the BIA considers

various factors “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 country of return.” Matter of Monreal-Aguinaga, 23 I. & 

N. Dec. 56, 63 (BIA 2001). Because the decision to grant cancellation 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 at 1222. And as a general 

USCA11 Case: 20-13821 Date Filed: 08/06/2021 Page: 3 of 7
4

matter, issues not raised before the BIA are unexhausted, and we lack jurisdiction 

to consider them. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. 

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). But we may review 

constitutional claims and questions of law, INA § 242(a)(2)(D), 8 U.S.C. 

§ 1252(a)(2)(D), and “constitutional claims raised for the first time . . . 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, 868 

(11th Cir. 2018); see also Sundar v. I.N.S., 328 F.3d 1320, 1325 (11th Cir. 2003). 

Here, Romero-Jaimes’s initial challenge sounds in “substantive due 

process.” The Supreme Court has a “line of cases which interprets the Fifth and 

Fourteenth Amendments’ guarantee of ‘due process of law’ to include a 

substantive component, which forbids the government to infringe certain 

‘fundamental’ liberty interests at all, no matter what process is provided, unless the 

infringement is narrowly tailored to serve a compelling state interest.” Reno v. 

Flores, 507 U.S. 292, 301–02 (1993). But aliens do not have a constitutionally 

protected liberty interest in purely discretionary forms of relief, such as 

cancellation of removal. Scheerer v. U.S. Att’y Gen., 513 F.3d 1244, 1253 (11th 

USCA11 Case: 20-13821 Date Filed: 08/06/2021 Page: 4 of 7
5

Cir. 2008). As such, Romero-Jaimes’s substantive-due-process argument cannot 

succeed. Id.1

Next up, his equal-protection challenge. The Supreme Court has held that 

“the Due Process Clause of the Fifth Amendment contains an equal protection 

component prohibiting the United States from invidiously discriminating between 

individuals or groups.” Washington v. Davis, 426 U.S. 229, 239 (1976). RomeroJaimes contends that the “exceptional and extremely unusual hardship” standard 

violates this equal-protection component of the Fifth Amendment. Though the 

exact shape of his argument isn’t crystal clear, he appears to contend that the

hardship standard is unconstitutional because it distinguishes between qualifying 

relatives like his family members—i.e., U.S. citizens and lawful permanent 

residents—and removeable aliens like himself.

That argument is unpersuasive. Although the principle of equal protection 

means that “all persons similarly circumstanced shall be treated alike . . . the 

Constitution does not require things which are different in fact or opinion to be 

1 To the extent Romero-Jaimes argues that the denial of cancellation of removal violates the 

substantive-due-process rights of his U.S. citizen family members, that argument is unavailing. 

See Gonzalez-Cuevas v. Immigr. & Naturalization Serv., 515 F.2d 1222, 1224 (5th Cir. 1975) 

(“Legal orders of deportation to their parents do not violate any constitutional right of citizen 

children[.]”); Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) 

(adopting decisions of the former Fifth Circuit as binding precedent); cf. Bakran v. Sec’y, United 

States Dep’t of Homeland Sec., 894 F.3d 557, 565 (3d Cir. 2018) (“[N]o court has recognized 

that a citizen spouse has a constitutional right to have his or her alien spouse reside in the United 

States[.]”).

USCA11 Case: 20-13821 Date Filed: 08/06/2021 Page: 5 of 7
6

treated in law as though they were the same.” Plyler v. Doe, 457 U.S. 202, 216 

(1982) (cleaned up). Particularly for purposes of immigration law, aliens and 

citizens are not “similarly circumstanced.” Rather, as the Supreme Court has 

explained, the “whole of Title 8 of the United States Code, regulating aliens and 

nationality, is founded on the legitimacy of distinguishing between citizens and 

aliens.” Mathews v. Diaz, 426 U.S. 67, 78 n.12 (1976). To the extent that 

Romero-Jaimes’s equal-protection challenge goes to the distinction made between 

citizens and aliens, then, it is unavailing. 

So far as his equal-protection challenge goes instead to the distinctions made 

between different classes of aliens—i.e., between those whose family members 

meet the hardship standard and those that don’t—that challenge also fails. 

Statutory classifications of immigrants are subject to minimal scrutiny. Rivas v. 

U.S. Att’y Gen., 765 F.3d 1324, 1328–29 (11th Cir. 2014). Under this standard, the 

alien has the burden of showing that the government regulation at issue is either 

arbitrary or unreasonable and is not rationally related to the government’s purpose. 

Id. We will uphold the classification if there is “any reasonably conceivable state 

of facts that could provide a rational basis for the classification.” Resendiz-Alcaraz 

v. U.S. Att’y Gen., 383 F.3d 1262, 1271 (11th Cir. 2004) (quotation marks 

omitted). 

USCA11 Case: 20-13821 Date Filed: 08/06/2021 Page: 6 of 7
7

Romero-Jaimes hasn’t carried his burden of proof on this front. The

“exceptional and extremely unusual hardship standard” in INA § 240A(b), 8 

U.S.C. § 1229b(b), survives this review because it is reasonably conceivable that 

Congress chose to limit cancellation of removal to truly exceptional cases as a 

response to a weakening of the then-extant standard for this form of relief. See, 

e.g., Miranda v. U.S. Att’y Gen., 632 F. App’x 997, 999 (11th Cir. 2015); MendezGutierrez v. U.S. Att’y Gen., 2021 WL 2209841, at *3 (11th Cir. June 1, 2021).

2 

PETITION DISMISSED IN PART, DENIED IN PART.

2 To the extent Romero-Jaimes is instead advancing a challenge to the correctness of the BIA’s 

interpretation of the statute—rather than the constitutionality of the statute itself—that issue is 

unexhausted and we lack jurisdiction to consider it. Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 

1297 (11th Cir. 2015).

USCA11 Case: 20-13821 Date Filed: 08/06/2021 Page: 7 of 7