United States Court of Appeals

for the Fifth Circuit

No. 22-60108

Summary Calendar

Melina Darzzete Guillen-Perez, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

Agency No. A208 896 120

ON REMAND FROM THE UNITED STATES

SUPREME COURT

United States Court of Appeals

Fifth Circuit

FILED

January 2, 2024

Lyle W. Cayce

Clerk

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Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:*

The Supreme Court vacated the prior opinion in this case and 

remanded for further consideration in light of Santos-Zacaria v. Garland, 

143 S. Ct. 1103 (2023). We again deny the petition for review.

Melina Guillen-Perez, a native and citizen of Mexico, entered the 

United States in 2004. The Department of Homeland Security charged her 

in 2016 with removability on the ground that she was present without 

admission or parole. See 8 U.S.C. § 1182(a)(6)(A)(i). Guillen-Perez 

appeared before an immigration judge (“IJ”), admitted the allegations, and 

conceded removability. She then applied for cancellation of removal and, in 

the alternative, voluntary departure.1

Following a hearing on the merits, the IJ held that Guillen-Perez did 

not qualify for cancellation of removal because she had not demonstrated that 

her removal would cause exceptional and extremely unusual hardship to her 

United States citizen child, Karla. The IJ granted Guillen-Perez’s alternative 

request for voluntary departure. Guillen-Perez appealed to the Board of 

Immigration Appeals (“BIA”), which affirmed the IJ’s decision without 

opinion. She filed a timely petition for review, challenging the IJ’s and BIA’s 

hardship determination. The government contends that this court lacks 

jurisdiction to consider Guillen-Perez’s challenge to the hardship 

determination under this court’s recent decision in Castillo-Gutierrez v. 

Garland, 43 F.4th 477 (5th Cir. 2022).

* 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opinion should not be published and is not precedent except under the limited 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.

1 Guillen-Perez also sought withholding of removal and protection under the 

Convention Against Torture, but she withdrew that application at the merits hearing.

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When the BIA affirms the IJ without opinion, as it did here, this court 

reviews the IJ’s decision. See Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 

2003). In order to be eligible for cancellation of removal under § 1229b(b)(1), 

an applicant must demonstrate, inter alia, “that removal would result in 

exceptional and extremely unusual hardship to [her] spouse, parent, or child, 

who is a citizen of the United States or an alien lawfully admitted for 

permanent residence.” Under 8 U.S.C. § 1252(a)(2)(B), this court is 

prohibited from reviewing “any judgment regarding the granting of relief 

under section . . . 1229b.” However, nothing in the statute “shall be 

construed as precluding review of constitutional claims or questions of law.” 

§ 1252(a)(2)(D). In Trejo v. Garland, this court stated that the BIA’s 

hardship determination is not subject to the jurisdictional bar in 

§ 1252(a)(2)(B). 3 F.4th 760, 766–67 (5th Cir. 2021).

The Supreme Court recently held in Patel v. Garland that the 

§ 1252(a)(2)(B) jurisdictional bar applies to “authoritative decisions.” 

142 S. Ct. 1614, 1621–22 (2022). And in Castillo-Gutierrez, this court held 

that Patel abrogated Trejo. 43 F.4th at 481 (“Patel makes clear that the BIA’s 

determination that a citizen would face exceptional and extremely unusual 

hardship is an authoritative decision which falls within the scope of 

§ 1252(a)(2)(B)(i) and is beyond [this court’s] review.”). Castillo-Gutierrez

dictates that Guillen-Perez’s challenge to the BIA’s hardship determination 

be dismissed for lack of jurisdiction under § 1252(a)(2)(B)(i).

Guillen-Perez also argues that the IJ violated her due process rights by 

failing to appropriately weigh the hardship factors, denying her the 

opportunity to review evidence before the merits hearing, and failing to act 

as a neutral factfinder. This court retains jurisdiction to review 

“constitutional claims or questions of law” raised in a petition for review. 

§ 1252(a)(2)(D). Guillen-Perez did not make any due process arguments 

before the BIA, and so failed to exhaust the issue as required by 8 U.S.C. 

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§ 1252(d)(1). The Supreme Court held in Santos-Zacaria, 143 S. Ct. at 1111–

16, that failure to exhaust under § 1252(d)(1) is not jurisdictional, contrary to 

the prior caselaw of this circuit. But the fact remains that Guillen-Perez failed 

to exhaust on this issue, and the Government identified this failure in its brief 

on appeal. “We . . . therefore decline to reach” the due process issue. 

Carreon v. Garland, 71 F.4th 247, 257 (2023).

The petition for review is DENIED.

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