Case: 22-60108   Document: 00517018907       Page: 1    Date Filed: 01/02/2024




          United States Court of Appeals
               for the Fifth Circuit                        United States Court of Appeals
                                                                     Fifth Circuit

                                                                   FILED
                                                             January 2, 2024
                              No. 22-60108                    Lyle W. Cayce
                            Summary Calendar                       Clerk


   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
Case: 22-60108       Document: 00517018907           Page: 2     Date Filed: 01/02/2024

                                      No. 22-60108


   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,
   

 (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 

(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, 

 (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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                                    No. 22-60108


          When the BIA affirms the IJ without opinion, as it did here, this court
   reviews the IJ’s decision. See Moin v. Ashcroft, 

 (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 

(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). 

, 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.”
   

, 1621–22 (2022). And in Castillo-Gutierrez, this court held
   that Patel abrogated Trejo. 

 (“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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                                     No. 22-60108


   § 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, 

 (2023).
          The petition for review is DENIED.




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