[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11147

Non-Argument Calendar

____________________

HECTOR ZAMUNDIO-ALUAREZ, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A200-276-565

____________________

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2 Opinion of the Court 21-11147

Before JILL PRYOR, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Petitioner Hector Zamudio-Alvarez1, a native and citizen of 

Mexico, seeks review of the final order by the Board of Immigration Appeals (the “BIA”) denying his application for cancellation of 

removal under INA § 240A(b), 8 U.S.C. § 1229b(b). As discussed

below, this Court lacks jurisdiction to review the BIA’s order denying Petitioner’s application. Accordingly, we dismiss Petitioner’s 

appeal. 

BACKGROUND 

Petitioner, a native and citizen of Mexico, claims he entered 

the United States in January 2001 in Arizona. It is undisputed that 

Petitioner entered without inspection. In June 2011, the Department of Homeland Security (“DHS”) served Petitioner with a notice to appear in removal proceedings. The notice charged Petitioner with being removable as an alien present in the United States 

without being admitted or paroled. 

Appearing before the IJ, Petitioner admitted the allegations 

in the notice to appear and conceded removability. However, Petitioner filed an application for cancellation of removal pursuant to 

1 Our docket refers to Petitioner as “Hector Zamundio-Aluarez” but we refer 

to him in this opinion by the name that appears on his birth certificate, “Hector 

Zamudio-Alvarez.”

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21-11147 Opinion of the Court 3

8 U.S.C. § 1229b(b), which authorizes cancellation when the removal of a deportable individual who has been continuously present in the United States for ten years would cause “exceptional and 

extremely unusual hardship” to a qualifying relative in the United 

States, assuming certain other requirements are met. Petitioner 

stated in his application that he satisfied the continuous presence 

requirement because he had lived in the United States since 2001 

and that his removal would cause extreme hardship for his children 

Aron Zamudio Frausto and Jared Zamudio Cortes, who are United 

States citizens and who at the time of Petitioner’s application were 

eight and four years old, respectively. In support of his application, 

Petitioner produced birth certificates for Aron and Jared, medical 

records indicating that Jared has a congenital condition in his left 

ear called cholesteatoma that had required surgery and treatment, 

tax documents, and letters of support, among other items. 

The IJ held a hearing on Petitioner’s application in September 2017. Petitioner, the sole witness at the hearing, testified that 

he entered the United States in January 2001 in Arizona. To establish Petitioner’s ten-year continuous presence in the United States, 

Petitioner’s attorney questioned him extensively about whether he 

had left the United States since his original entry in 2001. In his 

initial application for cancellation of removal, Petitioner indicated 

that he had “never” left the United States since he first arrived in 

2001. But in a revised application, Petitioner stated that he traveled 

to Mexico in May 2004 after his grandmother died, returning to the 

United States in June 2004, and that he traveled to Mexico again in 

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4 Opinion of the Court 21-11147

December 2004, returning to the United States in January 2005, 

both times reentering without inspection.

As the IJ noted during the hearing, Petitioner’s testimony regarding his travel to Mexico after 2001 was inconsistent and unclear. Petitioner testified that he left the United States to visit his 

mother in Mexico at least two times after he arrived in the United 

States in 2001, but he could not recall the length of his visits and he 

variously placed the dates of the visits in 2003, 2004, or 2005. At 

some point during his testimony, the IJ referred Petitioner to the 

statement in his written application that he had left the United 

States and traveled to Mexico in May 2004 for his grandmother’s 

funeral and that he had again left the United States and traveled to 

Mexico in December 2004 to visit his mother. Petitioner ultimately 

revised his testimony to suggest that he either traveled to Mexico 

in May 2004 for his grandmother’s funeral and returned in January 

2005, or that he visited Mexico for the funeral in May 2004 and returned to the United States within a few weeks, and that he visited 

Mexico a second time at the end of 2004 and returned to the United 

States in January 2005. The IJ confirmed during the hearing that, 

despite Petitioner’s claim to have arrived in the United States in 

2001, there were no documents establishing his presence here before May 2005.

As to the hardship prong of the INA § 1229b(b) analysis, Petitioner testified, consistent with the supporting documents he 

filed, that he has two children—Aron (eight years old at the time of 

the hearing) and Jared (four years old at the time of the hearing)—

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21-11147 Opinion of the Court 5

who were born in the United States. Petitioner stated that both 

children lived with their mothers in the Atlanta area, and that Petitioner did not live with the children or either mother, but that he 

saw both children regularly and paid child support in the amount 

of $300 for each child per month. Petitioner confirmed that his 

children would not go with him to Mexico if he was removed but 

would remain in the United States with their mothers. Petitioner 

testified that his older child, Aron, took medication for hyperactivity but was otherwise healthy. He stated that his younger child, 

Jared, had an ear condition (cholesteatoma) that had required two 

surgeries, and that might require a third surgery and additional 

monitoring and treatment.

On cross-examination, Petitioner admitted that he had been 

convicted of disorderly conduct in 2011. Petitioner explained that 

the victim of his offense was the mother of his older child, Aron, 

and that the offense had occurred when Petitioner had grabbed the 

victim by the arms and left a mark while the two were having an 

altercation about money. 

Following the hearing, Petitioner moved to supplement the 

record with a letter from his child Jared’s doctor explaining what 

cholesteatoma is and how it is treated. The IJ granted the motion 

and considered the supplemental evidence from Jared’s doctor. Per 

the doctor’s letter, cholesteatoma is an abnormal growth of skin 

cells in the middle ear that can damage the bones and other structures of the ear and that can cause hearing loss and infections if it is 

not treated.

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The IJ subsequently issued a written decision concluding 

that Petitioner was not eligible for cancellation of removal, denying 

his application, and ordering that he be removed to Mexico. In 

support of the decision, the IJ found that Petitioner was not credible because his testimony at the hearing was inconsistent as to how 

many times and when he entered and left the United States and he 

failed to provide corroborating evidence. In the alternative, the IJ 

determined that Petitioner did not demonstrate ten years of continuous physical presence in the United States or an exceptional 

and extremely unusual hardship to a qualifying relative, both of 

which are required to obtain cancellation of removal under 

§ 1229b(b). 

Specifically as to physical presence, the IJ noted that Petitioner had admitted taking two trips to Mexico in 2004 and 2005, 

and that he had presented no evidence showing the length of those 

trips, which was necessary to establish his continuous physical presence in the United States for ten years prior to May 22, 2014, the 

date Petitioner filed his application for cancellation. Regarding 

hardship, the IJ concluded that Petitioner had failed to show his 

children would suffer “exceptional and extremely unusual hardship” if he were removed to Mexico. The IJ emphasized that Aron 

and Jared would continue to live with their mothers in the United 

States after Petitioner’s removal, that Aron was healthy and doing 

well other than medically regulated hyperactivity, that Jared’s doctor had not identified any current problems arising from his cholesteatoma other than the affected hearing on his left side, and that 

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21-11147 Opinion of the Court 7

Jared would be able to retain access to Medicaid and any further 

needed treatments despite Petitioner’s removal. The IJ acknowledged that Aron and Jared would miss Petitioner but observed that 

family separation does not generally establish exceptional and extremely unusual hardship because separation is frequent in removal proceedings. Further, the IJ noted that Petitioner had not 

shown he would be unable to find employment or that he could 

not continue to help financially support his children from Mexico. 

Petitioner appealed the IJ’s decision to the BIA, which affirmed the denial of his application. In accordance with the IJ’s decision, the BIA concluded that Petitioner could not show that his 

return to Mexico would result in exceptional and extremely unusual hardship to his children, Aron and Jared. To qualify for relief 

under INA § 1229b(b), the BIA explained, Petitioner had to show 

that his removal would result in hardship that is “substantially beyond” the hardship ordinarily associated with an individual’s ordered departure from the United States. Based on Petitioner’s testimony, the BIA concluded that Petitioner had not satisfied that 

standard, observing more specifically that Petitioner had “not 

demonstrated how his children’s minor health issues would be affected by his removal.” Because it affirmed the IJ on the hardship 

prong of the analysis, the BIA did not consider the IJ’s alternative 

finding that Petitioner’s testimony was not credible and that he did 

not meet his burden to prove the requisite ten years of continuous 

physical presence in the United States. 

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Petitioner appeals the BIA’s denial of his application for cancellation of removal. In his appellate briefing, Petitioner identifies 

one issue for appeal: whether his application should have been denied “for lack of exceptional and extremely unusual hardship?” In 

support of his argument that the application should not have been 

denied on that ground, Petitioner insists that, contrary to the IJ and 

the BIA’s decision, he has satisfied the exceptional and extremely 

unusual hardship standard by producing medical evidence concerning his child Aron’s hyperactivity and his child Jared’s ear condition. 

DISCUSSION 

I. Standard of Review 

“When the BIA issues a decision” in a case arising under the 

INA, “we review only that decision, except to the extent the BIA 

expressly adopts the IJ’s decision.” Lopez v. U.S. Att’y Gen., 504 

F.3d 1341, 1344 (11th Cir. 2007). When the BIA expressly adopts 

or agrees with the IJ’s decision, we review the IJ’s decision as well 

as the BIA’s decision “to the extent of the agreement.” Gonzalez 

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

We review our own subject matter jurisdiction de novo. 

Blanc v. U.S. Att’y Gen., 996 F.3d 1274, 1277 (11th Cir. 2021). Congress has expressly eliminated our jurisdiction to review a “judgment regarding the granting of relief under section . . . 1229b”—the 

provision Petitioner invokes in this case to obtain cancellation of 

removal—except to the extent that such review involves 

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21-11147 Opinion of the Court 9

“constitutional claims or questions of law.” 8 U.S.C. 

§ 1252(a)(2)(B)(i), (D). See also Patel v. Garland, 142 S. Ct. 1614, 

1627 (2022) (holding that “[f]ederal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under” 

the provisions enumerated in 8 U.S.C. § 1252(a)(2)(B)(i), including 

§ 1229b(b)). Although the Court retains jurisdiction to consider 

constitutional claims and questions of law that arise in the context 

of a discretionary cancellation of removal decision, such claims 

must be “colorable” for the Court to exercise its jurisdiction. See 

Patel v. U.S. Att’y Gen., 971 F.3d 1258, 1272 (11th Cir. 2020) (en 

banc), aff’d, Patel v. Garland, 142 S. Ct. 1614 (2022). A petitioner 

“may not dress up a claim with legal or constitutional clothing to 

invoke our jurisdiction.” Id. 

II. Analysis 

Petitioner’s appeal in this case runs headlong into the jurisdictional bar applicable to the BIA’s decision to deny discretionary 

relief under § 1229b. See 8 U.S.C. § 1252(a)(2)(B)(i). As discussed, 

pursuant to § 1229b, the agency is authorized to cancel the removal 

and adjust the status of a deportable individual who can establish, 

among other things, that his “removal would result in exceptional 

and extremely unusual hardship” to a qualifying relative who is a 

United States citizen or lawful permanent resident. See 8 U.S.C. 

§ 1229b(b)(1). The BIA affirmed the IJ’s denial of Petitioner’s application for relief under that provision on the ground that Petitioner 

failed to establish that his children, the United States citizens whom 

Petitioner claimed as qualifying relatives, would suffer exceptional 

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10 Opinion of the Court 21-11147

and extremely unusual hardship if he were removed to Mexico. 

The only argument Petitioner asserts on appeal is that the BIA 

erred in weighing the evidence as to that issue and that his children 

will, in fact, suffer such hardship upon his removal. That is not an 

argument we have jurisdiction to consider. See Patel, 142 S. Ct. at 

1627. 

Indeed, Petitioner entirely ignores the jurisdictional bar in 

his appellate briefing. On its face, Petitioner’s argument on appeal 

concerns solely the IJ’s and the BIA’s weighing of the evidence concerning the hardship his children allegedly would suffer upon his 

removal, and whether such hardship qualifies as exceptional and 

extremely unusual. Petitioner frames his claim neither as constitutional nor legal. Rather, he directly challenges the agency’s factual 

determination after weighing the evidence that Petitioner’s children would not suffer exceptional and extremely unusual hardship 

as a result of his removal. As such, Petitioner’s appeal is an unreviewable challenge to the denial of cancellation of removal, and it 

must be dismissed. See id. 

CONCLUSION 

For the foregoing reasons, we DISMISS Petitioner’s appeal 

for lack of jurisdiction. 

PETITION DISMISSED

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