# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 60127 Summary Calendar

**Adolfo Garcia**

**- Flores,** 

Petitioner **,**

versus **Merrick Garland,** U.S. Attorney General **,** Respondent

**.**

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A200 226 583

Before **Barksdale, Willett,** and **Duncan,** Circuit Judges

**. Per Curiam**  **:** *
Adolfo Garcia

- Flores , a native and citizen of Mexico , petitions for review of the Board of Immigration Appeals ’ (BIA) dismiss ing his appeal of the Immigration Judge ’s (IJ) denying his applications for : cancellation of removal ; and post

- conclusion voluntary departure. He contends t he BIA

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 22, 2021 Lyle W. Cayce Clerk Case: 20-60127 Document: 00516024268 Page: 1 Date Filed: 09/22/2021No. 20

- 60127

2 violated his due

- process rights concerning discretionary relief from removal and erred by affirming the IJ’s : denial of cancellation of removal ; denial of voluntary departure ; and conclusion t hat Garcia was ineligible for cancellation of removal because he failed to establish the requisite level of hardship

. O ur court generally lacks jurisdiction to review the BIA’s denial of discretionary relief , including cancellation of removal and voluntary departure

. See 8 U.S.C. § 1252(a)(2)(B)(i) ; Sung v

. Keisler , 505 F.3d 372, 377 (5th Cir

. 2007) (cancellation of removal); Sattani v. Holder , 749 F.3d 368, 372

– 73 (5th Cir. 2014) (voluntary departure). This jurisdictional bar , however, does not apply to review of the BIA’s non
- discretionary de cision an applicant is ineligible for discretionary relief. Trejo v. Garland , 3 F.4th 760, 767

– 68, 773 (5th Cir. 2021 ) (“[T]he decision that is shielded from judicial review by § 1252(a)(2)(B)(i)” is “wheth er to actually grant cancellation to a qualifying alien”

. (citations omitted) ). T he BIA’s factual findings are reviewed for substantial evidence; its legal conclusions, de novo

. Lopez

- Gomez v. Ashcroft , 263 F.3d 442, 444 (5th Cir. 2001). D ue
- process challenges are also reviewed de novo. De Zavala v. Ashcroft , 385 F.3d 879, 883 (5th Cir. 2004). Accordingly, our court lack s jurisdiction to review Garcia’s cancellation

- of

- removal and voluntary

- departure challenges. His cancellation

- of

- remov al challenge falls squarely within § 1252(a)(2)(B)(i)’s ambit. Similarly, a lthough § 1252 (a)(2)(D) allows “review of constitutional claims or questions of law raised upon a petition for review ” , Garcia’s voluntary

- departure challenge does not raise a con stitutional or legal question

. H e, instead, contests the IJ’s factual conclusions and exercise of discretion

. See Sattani , 749 F.3d at 373 (explaining factual dispute insufficient to establish jurisdiction)

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3 On the other hand , our court has jurisdiction to consider Garcia’s

c hallenge to the BIA’s decision he is in eligible for cancellation of removal. To be eligible for this discretionary relief , applicant must establish, inter alia , his removal would cause a qualifying relative to suffer an “exceptional and extremely unusual hardship”. 8 U.S.C. § 1229 b (b)(1)(d ). In Matter of Andazola

- Rivas , 23 I. & N. Dec. 319, 324 (B.I.A. 2002), t he BIA explained that, although an applicant ’s status as an unmarried mother with asthma would put her at a di sadvantage in Mexico, this “common ” fact pattern did not satisfy the exceptional

- and

- extremely

- unusual

- hardship standard , noting “almost every case will present some particular hardship”. Like the applicant in Matter of Andazola

- Rivas , Garcia’s wife’s hardships do not constitute extreme hardship warranting cancel l ation.
As for Garcia’s due

- process claim, an order of removal will be found wanting on due

- process grounds if petitioner establishes his deportation proceedings were fundament ally unfair , constituting a denial of “ the opportunity to be heard or present evidence”

. Toscano

- Gil v. Trominski , 210 F.3d 470, 474 (5th Cir. 2000) ( noting petitioner given requisite opportunity )

. But, “ d iscretionary relief from removal, including an ap plication for an adjustment of status, is not a liberty or property right that requires due process protection”

. Ahmed v. Gonzales , 447 F.3d 433, 440 (5th Cir. 2006) (cit ations omitted ) (holding petitioner failed to raise due

- process claim)

. Accordingly, the BIA’s denial of Garcia’s request for discretionary relief from removal “does not rise to the level of a constitutional violation”

. Hernandez

- Castillo v. Sessions , 875 F.3d 199, 20 6 (5th Cir. 2017) (quoting Altamirano

- Lopez v. Gonzales , 435 F.3d 547, 550 (5th Cir. 20 0 6 ) ) (same)

. **D ISMISSED**  in part **; D**  **ENIE D**  in part

**.** Case: 20-60127 Document: 00516024268 Page: 3 Date Filed: 09/22/2021