[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-10922

Non-Argument Calendar

________________________

Agency No. A201-263-388

FREDY ANDABLO GUTIERREZ, et al., 

 Petitioners,

 versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(September 28, 2020)

Before MARTIN, JILL PRYOR, and BRASHER, Circuit Judges.

PER CURIAM: 

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Petitioners, Fredy Andablo Gutierrez and Carolina Hernandez Herrera, seek 

review of a February 10, 2020 decision by the Board of Immigration Appeals (the 

“BIA”), dismissing their appeal of an Immigration Judge’s (“IJ”) denial of their 

applications for cancellation of removal. The IJ determined that Petitioners failed 

to establish (1) a ten-year continuous physical presence in the United States and 

(2) exceptional and extremely unusual hardship to their U.S. citizen children. The 

BIA adopted and affirmed the IJ’s decision. After careful review, we dismiss the 

petition for lack of jurisdiction. 

I.

Petitioners are natives and citizens of Mexico. They entered the United 

States without being admitted or paroled by an immigration officer. On October 

11, 2011, the Department of Homeland Security served Petitioners with notices to 

appear in immigration court. The notice charged Petitioners under 8 U.S.C. 

§ 1182(a)(6)(A)(i) as removable aliens present in the United States without being 

admitted or paroled. 

At an immigration court hearing in September 2015, Petitioners, represented 

by counsel, conceded removability as charged but indicated they would apply for 

cancellation of removal. Following a hearing, the IJ issued a written decision 

denying Petitioners’ applications for cancellation of removal. The IJ determined 

that Petitioners showed neither the required ten years’ continuous physical 

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presence in the United States, nor an exceptional and extremely unusual hardship 

to their U.S. citizen children. 

Petitioners timely appealed the IJ’s decision to the BIA. On February 10, 

2020, the BIA adopted and affirmed the IJ’s decision. The BIA concluded that 

(1) the IJ’s factual finding that the Petitioners failed to demonstrate a ten-year 

continuous physical presence was not clearly erroneous, and (2) the IJ applied the 

correct legal standard in concluding the Petitioners’ children would not experience 

exceptional and extremely unusual hardship upon their removal. Following the

BIA’s affirmance, Petitioners filed the instant petition for review.

II.

For the reasons below, we conclude that we lack jurisdiction and that the 

petition is due to be dismissed. 

We review de novo the issue of whether we have subject matter jurisdiction

over a petition for review of a BIA decision. Martinez v. U.S. Att’y Gen., 446 

F.3d 1219, 1221 (11th. Cir. 2006). In Patel v. United States Attorney General, ---

F.3d ---, 2020 WL 4873196 (11th Cir. Aug. 19, 2020) (en banc), this Court held

that all eligibility determinations listed under Immigration and Nationality Act 

(“INA”) § 242(a)(2)(B)(i), 8 U.S.C. § 1252(a)(2)(B)(i), which concerns “[d]enials 

of discretionary relief,” are precluded from judicial review, except to the extent 

constitutional claims or questions of law are presented. Id. at *1, *15; 8 U.S.C. 

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§ 1252(a)(2)(B). Among the five enumerated categories of discretionary relief

Patel insulated from review is one that pertains to orders denying cancellation of 

removal, which is the basis of this petition. See Patel, 2020 WL 4873196, at *1; 

INA §§ 240A(b), 242(a)(2)(B)(i), 8 U.S.C. §§ 1229b(b), 1252(a)(2)(B)(i). 

Therefore, in keeping with Patel, we review this petition only to the extent it 

presents colorable constitutional claims and questions of law. INA § 242(a)(2)(D), 

8 U.S.C. § 1252(a)(2)(D); Patel, 2020 WL 4873196, at *1; Arias v. U.S. Att’y 

Gen., 482 F.3d 1281, 1284 (11th. Cir. 2007) (per curiam) (holding that 

constitutional and legal claims must be colorable to invoke jurisdiction). 

Section 1229b authorizes the Attorney General to cancel the removal of a 

nonpermanent noncitizen who is inadmissible or deportable from the United States 

if the noncitizen: (1) has been continuously physically present in the United States 

for at least ten years; (2) has been a person of good moral character during that 

period; (3) has not been convicted of certain enumerated offenses; and

(4) establishes that removal would result in exceptional and extremely unusual 

hardship to his spouse, parent, or child, who is a citizen of the United States. INA 

§ 240A(b)(1), 8 U.S.C. § 1229b(b)(1) (emphasis added).

Here, the eligibility determination regarding Petitioners’ 10-year continuous 

presence in the United States is not reviewable because Petitioners raise a purely 

factual question. In particular, Petitioners disagree with the IJ’s resolution of 

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conflicting evidence, and the absence of evidence, against their position. Because 

Petitioners were served with notices to appear in 2011, Petitioners were required to 

establish that they were continuously present since 2001 to be eligible for 

cancellation of removal. See INA § 240A(b)(1), 8 U.S.C. § 1229b(b)(1), (d)(1) 

(requiring a showing of a ten-year continuous presence starting from ten years 

prior to service of the notice to appear); 8 U.S.C. § 1229a(c)(4)(A) (explaining that 

noncitizen bears the burden of proof in their application seeking relief from 

removal). The IJ found inconsistencies in Andablo Gutierrez’s evidence 

supporting his presence, as he attested to working for Buchanan Hardwood 

Flooring from 2004 to 2008, but the letter submitted from the company indicated

he worked there from 2001 to 2004. As for Hernandez Herrera, the IJ noted she

failed to provide any documentation of her presence in the United States before 

2006. Thus, the IJ concluded the Petitioners had not met their burden on the 

continuous presence requirement. The BIA affirmed this determination. 

Because Petitioners have not raised any legal or constitutional challenge to 

the finding of insufficient evidence of physical presence in the country, judicial 

review of this issue is precluded. See Patel, 2020 WL 4873196, at *13–15

(holding that even non-discretionary decisions, such as determinations of the 

physical presence requirement, are shielded from judicial review). 

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This ruling is dispositive. Because the IJ found, and the BIA affirmed, that 

Petitioners failed to establish their continuous presence, and because we cannot 

review that determination, their application for cancellation of removal necessarily 

fails. See 8 U.S.C. § 1229b(b)(1). We need not address Petitioners’ challenges to

the determination of their hardship claim, as Petitioners do not qualify for relief in 

any event. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S. Ct. 200, 201 (1976) 

(“As a general rule courts and agencies are not required to make findings on issues 

the decision of which is unnecessary to the results they reach.”). Therefore, we 

dismiss the petition. 

PETITION DISMISSED.

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