GIORGOBIANI v. ATTORNEY GENERAL (2018)

Gocha Giorgobiani, a native and citizen of Georgia, and Ildiko Gyore, a native and citizen of Hungary, petition for review of an order affirming the denial of their application for cancellation of removal, 8 U.S.C. § 1229b, and their motion to reconsider, id. § 1229a(c)(6)(C). The Board of Immigration Appeals “agree[d] with the Immigration Judge that the cumulative hardships [Giorgobiani’s and Gyore’s] children will suffer upon their removal do not meet the exceptional and extremely unusual standard” to satisfy “their respective burdens to establish their eligibility for cancellation of removal.” See id. § 1229b(b)(1). The Board declined to address the finding of the immigration judge that Giorgobiani and Gyore were ineligible for cancellation of removal due to their lack of good moral character. See id. § 1229b(b)(1)(B). Later, the Board denied Giorgobiani and Gyore’s postjudgment motion for “fail[ure] to identify any error of fact or law in [the] July 14, 2017, decision that would warrant its reconsideration” as their “arguments ․ [were] substantially similar to those that were raised in their brief on appeal.” We dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the finding that Giorgobiani and Gyore are ineligible for cancellation of removal. We are barred from “review[ing] any judgment regarding the granting of relief under section ․ 1229b,” id. § 1252(a)(2)(B)(i), or “any other decision or action of the Attorney General or the Secretary of Homeland Security,” id. § 1252(a)(2)(B)(ii); Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221–23 (11th Cir. 2006). The discretionary determination that Giorgobiani and Gyore are ineligible for cancellation of removal based on an exceptional and unusual hardship and the rejection of their challenges to the final order of removal in their motion to reconsider are shielded from judicial review. Although we retain jurisdiction to review “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), Giorgobiani and Gyore’s challenge to the weight given to testimony about Gyore’s mental health from her psychologist, Dr. Samuel Kling, is “insufficient to state a legal claim over which we have jurisdiction,” Fynn v. U.S. Att’y Gen., 752 F.3d 1250, 1253 (11th Cir. 2014). Giorgobiani and Gyore also argue that the immigration judge violated their right to due process by ignoring evidence of Gyore’s mental condition, but the immigration judge found that Gyore’s “diminished capacity to provide emotional support to her daughter when she is under sufficient stress” does not “rise to the level of ‘exceptional and unusual hardship.’ ” Because Giorgobiani and Gyore’s “constitutional claim has no merit, ․ we do not have jurisdiction” to entertain the claim. See Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1333 (11th Cir. 2003). We dismiss this part of Giorgobiani and Gyore’s petition.

The Board did not err in denying Giorgobiani and Gyore’s motion for reconsideration. They argue that the Board committed legal error by “reweigh[ing]” Dr. Kling’s testimony and substituting its finding for that of the immigration judge, but the Board accepted the immigration judge’s factual findings and agreed that the hardships awaiting the children after removal did not satisfy the standard required to cancel their parents’ order of removal. The statement of the Board that Giorgobiani and Gyore’s motion failed “even giving full weight to Dr. Kling’s testimony and written evaluations” did not, as they argue, constitute an impermissible finding of fact. That statement reflects that the Board had alternative reasonable grounds on which to deny Giorgobiani and Gyore’s motion. We deny this part of Giorgobiani and Gyore’s petition.

PETITION DISMISSED IN PART, DENIED IN PART.

PER CURIAM: