United States Court of Appeals

for 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) dismissing his appeal of 

the Immigration Judge’s (IJ) denying his applications for: cancellation of 

removal; and post-conclusion voluntary departure. He contends the BIA

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 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: 09/22/2021
No. 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 that Garcia was ineligible for 

cancellation of removal because he failed to establish the requisite level of 

hardship.

Our 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 decision 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 “whether to actually grant cancellation to a 

qualifying alien”. (citations omitted)). The 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). Due-process challenges are 

also reviewed de novo. De Zavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 

2004).

Accordingly, our court lacks jurisdiction to review Garcia’s 

cancellation-of-removal and voluntary-departure challenges. His 

cancellation-of-removal challenge falls squarely within § 1252(a)(2)(B)(i)’s 

ambit. Similarly, although § 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 constitutional or legal 

question. He, 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).

Case: 20-60127 Document: 00516024268 Page: 2 Date Filed: 09/22/2021
No. 20-60127

3

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

challenge to the BIA’s decision he is ineligible 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. § 1229b(b)(1)(d). In Matter of 

Andazola-Rivas, 23 I. & N. Dec. 319, 324 (B.I.A. 2002), the BIA explained 

that, although an applicant’s status as an unmarried mother with asthma 

would put her at a disadvantage 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 cancellation.

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 fundamentally 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, “discretionary relief from removal, including an application 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) 

(citations 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, 206 (5th Cir. 2017) (quoting

Altamirano-Lopez v. Gonzales, 435 F.3d 547, 550 (5th Cir. 2006)) (same).

DISMISSED in part; DENIED in part.

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