IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-60324

Summary Calendar

HERIBERTO CRUZ-VIZCARRA,

Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A200 775 855

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Heriberto Cruz-Vizcarra, a citizen of Mexico, petitions for review of a 

decision of the Board of Immigration Appeals (BIA) dismissing his appeal from 

a decision of the Immigration Judge (IJ) who denied his application for 

cancellation of removal under 8 U.S.C. § 1229b(b). In his application, CruzVizcarra alleged that his removal would cause an exceptional hardship to his 

United States citizen son. Cruz-Vizcarra’s son is six years old, and he has 

 

* Pursuant to 5TH CIR. R. 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. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 14, 2015

Lyle W. Cayce

Clerk

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always lived with his mother. According to Cruz-Vizcarra, his relationship 

with his child consisted of visitation three times a week until the child’s mother 

“disappeared” with his son ten months before the removal hearing. When 

asked what hardship the child would suffer upon his removal, Cruz-Vizcarra 

said that his son would miss him. The BIA upheld the IJ’s determination that 

Cruz-Vizcarra’s removal would not cause a sufficient hardship to the child and 

denied his application for cancellation of removal. In three issues, CruzVizcarra challenges the determination that he failed to establish a sufficient 

hardship.

The Attorney General may cancel the removal of a nonpermanent 

resident alien if, among other things, the alien “establishes that removal would 

result in exceptional and extremely unusual hardship to the alien’s spouse, 

parent, or child, who is a citizen of the United States or an alien lawfully 

admitted for permanent residence.” § 1229b(b)(1)(D). This court generally has 

authority to review only the decision of the BIA but will consider the IJ’s 

decision if it influenced the determination of the BIA. Zhu v. Gonzales, 493 

F.3d 588, 593 (5th Cir. 2007). Because of the discretionary nature of 

cancellation of removal, we lack jurisdiction to review the denial of such relief 

“unless the appeal involves constitutional questions or questions of law.” 

Sattani v. Holder, 749 F.3d 368, 372 (5th Cir. 2014); see 8 U.S.C. 

§ 1252(a)(2)(B)(i), (a)(2)(D). 

Cruz-Vizcarra argues that the current custody arrangement is an “illegal 

abrogation of [his] right to a parent child relationship” and that the BIA erred 

when it held that his deportation and future separation from his son would not 

be an exceptional and extremely unusual hardship. He is in essence arguing 

that his deportation will sever the parent-child relationship, and, therefore, 

the denial of his request for cancellation of removal amounted to a 

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constitutional violation. However, the decision to grant or deny an application 

for cancellation of removal is discretionary, and we have held in the context of 

an alleged due process violation that “the failure to receive relief that is purely 

discretionary in nature does not amount to a deprivation of a liberty interest.” 

Assad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004). Because the denial of 

discretionary relief does not amount to a constitutional violation, CruzVizcarra’s claim is “an abuse of discretion argument cloaked in constitutional 

garb.” Hadwani v. Gonzales, 445 F.3d 798, 800-01 (5th Cir. 2006) (internal 

quotation marks, alterations, and citations omitted). Thus, it falls within the 

jurisdictional bar of § 1252(a)(2)(B). 

Although he also challenges the characterization of the custody 

arrangement, the IJ’s and the BIA’s decisions both show that their rulings 

were not based on the custody arrangement. Instead, the custody arrangement 

was used to determine the standard for assessing hardship in this case: the 

hardship that the citizen child would suffer by remaining in the United States 

with his mother as opposed to the hardship that he would suffer by leaving the 

United States with his father. See Salcido-Salcido v. INS, 138 F.3d 1292, 

1293-94 (9th Cir. 1998).

Cruz-Vizcarra also complains that the IJ applied the wrong legal 

standard by failing to consider the future hardship to his son. Although we

lack jurisdiction to review the denial of discretionary relief under § 1229b, we 

may consider this legal argument. See § 1252(a)(2)(B). The IJ’s decision shows, 

however, that it considered future hardship to the child but refused to consider 

the future hardship that Cruz-Vizcarra would suffer. Because the issue is 

whether an alien’s qualifying relative would suffer an “exceptional and 

extremely unusual hardship,” see § 1229b(b)(1)(D), the IJ did not apply an 

erroneous legal standard.

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Next, he argues that the BIA should have found “that the severing of a 

parent-child relationship goes beyond the ordinary expectation of suffering 

upon a parent’s deportation.” He also contends that the BIA abused its

discretion by failing to account for the fact that his removal “would forever 

prevent [his son] from forming a relationship with [Cruz-Vizcarra] and, likely 

also prevent [the child] from ever locating and knowing the identity of [CruzVizcarra].” Cruz-Vizcarra is merely asking us to take a different view of the 

record and replace the BIA’s evaluation of the evidence with a new outcome. 

Consequently, these arguments fall squarely within the jurisdictional bar of 

§ 1252(a)(2)(B). See Sattani, 749 F.3d at 372.

Finally, Cruz-Vizcarra argues in the alternative that, because of the 

hardship caused by family separation, he should not have been faulted for 

failing to provide documentary evidence of hardship. Cruz-Vizcarra cites to 

the BIA’s decision in Calderon-Hernandez to support this contention, but his 

reliance is misplaced. See In re Calderon-Hernandez, 25 I. & N. Dec. 885, 886

(BIA 2012). As the BIA explained there, when both parents are being deported 

and attempt to establish hardship through family separation by claiming that 

the child will remain in the United States, there must be documentary 

evidence establishing who will care for the child. Id. This is because “a claim 

that [a child] would remain in the United States can easily be made for 

purposes of litigation.” Id. But when one parent is deported and the child 

remains with the other parent, it is reasonable “to assume that the child will 

be cared for and supported by the parent who remains here, absent evidence 

to the contrary.” Id. Thus, Cruz-Vizcarra confuses the requirement to offer 

evidence of hardship with offering evidence of who will care for the child upon 

the parents’ removal in order to establish hardship through family separation. 

Consequently, his argument lacks merit. 

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In sum, it is apparent from the record that the BIA did not commit the 

legal errors Cruz-Vizcarra has raised. To the extent that he has argued that 

the evidence was not given the proper weight, these arguments fall within the 

jurisdictional bar of § 1252(a)(2)(B). See Sattani, 749 F.3d at 372. For these 

reasons, Cruz-Vizcarra’s petition for review is DENIED in part and 

DISMISSED in part.

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