     Case: 14-60324      Document: 00513114705         Page: 1    Date Filed: 07/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-60324
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 14, 2015
HERIBERTO CRUZ-VIZCARRA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 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, Cruz-
Vizcarra 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-60324

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, Cruz-
Vizcarra 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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                                  No. 14-60324

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, Cruz-
Vizcarra’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 [Cruz-
Vizcarra].” 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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