Jacinto Mendez Gutierrez seeks review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judges (“IJ”) denial of his application for cancellation of removal under the Immigration and Nationality Act (“INA”), arguing that he has been physically present in the United States for ten years and that the “exceptional and extremely unusual hardship” requirement violates the Fifth Amendments Due Process and Equal Protection Clauses. After careful review, we deny the petition in part and dismiss it in part.
We review our subject matter jurisdiction de novo. Jeune v. U.S. Atty Gen., 810 F.3d 792, 799 (11th Cir. 2016). We also review constitutional claims de novo. Ali v. U.S. Atty Gen., 443 F.3d 804, 808 (11th Cir. 2006). When the BIA issues an order, we review only that order, except to the extent the BIA expressly adopts the IJs order or expressly agrees with the IJs findings. Jeune, 810 F.3d at 799.
Arguments not raised in a petitioners initial brief are deemed abandoned. Ruga v. U.S. Atty Gen., 757 F.3d 1193, 1196 (11th Cir. 2014). A party must specifically and clearly identify a claim in its brief, for instance by devoting a discrete section of its argument to that claim; otherwise, it will be deemed abandoned and its merits will not be addressed. Zhou Hua Zhu v. U.S. Atty Gen., 703 F.3d 1303, 1316 n.3 (11th Cir. 2013).
While we retain jurisdiction over final orders of removal, we may review a final order of removal only if the alien has exhausted all administrative remedies available to the alien as of right. 8 U.S.C. § 1252(d)(1). The exhaustion requirement is jurisdictional and precludes review of a claimants argument not presented to the BIA. Amaya–Artunduaga v. U.S. Atty Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Although not stringent, exhaustion requires the petitioner to have previously argued the core issue now on appeal before the BIA. Indrawati v. U.S. Atty Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). Conclusory statements do not satisfy this requirement. Id. And while a petitioner need not use precise legal terminology or provide a well-developed argument to exhaust his claim, he must provide information sufficient to enable the BIA to review and correct any errors below. Id.
Weve indicated, however, that constitutional claims raised for the first time in our Court that address issues beyond the power of the BIA to address in adjudicating an individuals case may not require exhaustion. Bing Quan Lin v. U.S. Atty Gen., 881 F.3d 860, 867-68 (11th Cir. 2018); see also Sundar v. I.N.S., 328 F.3d 1320, 1325 (11th Cir. 2003) (holding that the exhaustion requirement applies to claims regarding the BIAs application of its own precedent while emphasizing that the claim at issue was not a constitutional challenge to the INA itself or a due process claim that could not be resolved by a BIA decision). Still, where a procedural due process claim properly falls within the immigration courts’ power to review and provide a remedy, the claim must be exhausted before we can consider it. Bing, 881 F.3d at 868. In holding in Bing that the exhaustion requirement applied to the petitioners constitutional claims, we noted that none of the petitioners claims raised a larger challenge to the immigration process beyond the power of the BIA to address. Id. We further observed that, while the petitioner did challenge the proceedings below, the petitioner did not mention due process, the Constitution, or present a constitutional claim to the BIA. Id.
The Attorney General “may” cancel the removal of a nonpermanent resident alien who establishes: (1) he has been physically present in the United States for at least 10 years; (2) he has been a person of good moral character for that period; (3) he has not been convicted of certain criminal offenses; and (4) his removal would result in “exceptional and extremely unusual hardship” to his spouse, parent, or child, who is a United States citizen or lawful permanent resident. 8 U.S.C. § 1229b(b)(1). We lack jurisdiction to review any order or judgment concerning relief under the cancellation of removal provision of the INA. Id. § 1252(a)(2)(B)(i); see also Martinez v. U.S. Atty Gen., 446 F.3d 1219, 1221 (11th Cir. 2006) (holding that “the BIAs § 1229b(b)(1)(D) exceptional and extremely unusual hardship determination is a discretionary decision not subject to review” (quotation omitted)). Notwithstanding that jurisdictional bar, we retain jurisdiction to review any petition that raises a constitutional claim or question of law. 8 U.S.C. § 1252(a)(2)(D).
However, aliens do not have a constitutionally protected liberty interest in purely discretionary forms of relief, and therefore, no substantive due process violation can arise from a deprivation of that relief. Scheerer v. U.S. Atty Gen., 513 F.3d 1244, 1253 (11th Cir. 2008). Moreover, statutory classifications of immigrants are subject to minimal scrutiny. Rivas v. U.S. Atty Gen., 765 F.3d 1324, 1328-29 (11th Cir. 2014). In reviewing an equal protection challenge, the classification must be upheld if there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.” Resendiz-Alcaraz v. U.S. Atty Gen., 383 F.3d 1262, 1271 (11th Cir. 2004) (quotation omitted). Under this standard, the alien has the burden of showing that the government regulation at issue is either arbitrary or unreasonable and is not rationally related to the governments purpose. Rivas, 765 F.3d at 1329.
In construing the INA, we have looked to the legislative history behind the Act and its amendments. See id. at 1270 (citing H.R. Conf. Rep. No. 104-828, at 224 (1996) (Conf. Rep.)). The House of Representatives articulated the following basis for creating the “exceptional and extremely unusual hardship” standard in 8 U.S.C. § 1229b(b):
Section 240A(b)(1) replaces the relief now available under INA section 244(a) (“suspension of deportation”), but limits the categories of illegal aliens eligible for such relief and the circumstances under which it may be granted. The managers have deliberately changed the required showing of hardship from “extreme hardship” to “exceptional and extremely unusual hardship” to emphasize that the alien must provide evidence of harm to his spouse, parent, or child substantially beyond that which ordinarily would be expected to result from the aliens deportation. The “extreme hardship” standard has been weakened by recent administrative decisions․ [A] showing that an aliens United States citizen child would fare less well in the aliens country of nationality than in the United States does not establish “exceptional” or “extremely unusual” hardship and thus would not support a grant of relief under this provision. Our immigration law and policy clearly provide that an alien parent may not derive immigration benefits through his or her child who is a United States citizen. The availability in truly exceptional cases of relief under section 240A(b)(1) must not undermine this or other fundamental immigration enforcement policies.
H.R. Conf. Rep. 104-828, at 213-14 (1996) (Conf. Rep.). Nevertheless, “the Equal Protection Clause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification.” Nordlinger v. Hahn, 505 U.S. 1, 15, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992).
Here, Mendez-Gutierrez challenges 1229b(b)(1)(D)’s “hardship requirement,” which requires, as a condition of establishing eligibility for cancellation of removal, a showing that an aliens removal would result in “exceptional and extremely unusual hardship” to his spouse, parent, or child, who is a United States citizen or lawful permanent resident. Mendez-Gutierrez does not dispute the agencys finding that that his children would not face “exceptional and extremely unusual hardship” if he were deported, but instead argues that the hardship requirement violates the Constitution, claiming both due process and equal protection violations.
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For starters, however, his substantive due process claim is without merit. As weve held, aliens lack a constitutionally protected liberty interest in discretionary forms of relief, like cancellation of removal, and as a result, no substantive due process violation can arise from a deprivation of this form of discretionary relief. See Scheerer, 513 F.3d at 1253; Martinez, 446 F.3d at 1221.
As for Mendez-Gutierrezs equal protection challenge to the hardship requirement -- that the hardship requirement violates the Equal Protection Clause because it unconstitutionally distinguishes between hardship suffered by a qualifying family member and hardship suffered by the alien himself -- it similarly lacks merit. Importantly, he has failed to show that there is no “reasonably conceivable state of facts that could provide a rational basis for” adopting the “exceptional and extremely unusual hardship” standard for cancellation of removal. Resendiz-Alcaraz, 383 F.3d at 1271. While we need not look to legislative history to ascertain whether there is a rational basis for a statutes classification, it is clear in this instance that there is a rational basis for why Congress sought to limit cancellation of removal to “truly exceptional cases.” H.R. Conf. Rep. 104-828, at 213-14 (1996) (Conf. Rep.). As weve noted, there had been a “weakening” of the former “extreme hardship” standard, and, in the interest of conforming with the countrys immigration policies, Congress adopted the heightened “exceptional and extremely unusual hardship” standard “to emphasize that the alien must provide evidence of harm to his spouse, parent, or child substantially beyond that which ordinarily would be expected to result from the aliens deportation.” Id. Because at least one rational basis exists for the hardship requirement, and because only minimal scrutiny is given to statutory classifications of immigrants, the hardship requirement does not violate the Equal Protection Clause. See Resendiz-Alcaraz, 383 F.3d at 1271; Rivas, 765 F.3d at 1328-29. Accordingly, Mendez-Gutierrezs constitutional challenges to the hardship requirement fail.
Finally, because Mendez-Gutierrez failed to satisfy one of the four required prongs of the cancellation of removal statute -- that his removal would result in “exceptional and extremely unusual hardship” to his spouse, parent, or child, who is a United States citizen or lawful permanent resident, 8 U.S.C. § 1229b(b)(1)(D) -- we need not address whether he satisfied the remaining portions of the statute. For this reason, we decline to review the BIAs finding that he was not continuously present in the United States. We therefore dismiss the part of Mendez-Gutierrezs petition raising a procedural due process claim and deny the remainder of the petition.
PETITION DISMISSED IN PART AND DENIED IN PART.
FOOTNOTES
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. Contrary to the governments claim, Mendez-Gutierrez did not abandon his arguments in this Court concerning the hardship requirement -- there was a discrete argument section in his brief that addressed 8 U.S.C. § 1229b(b)(1) and the BIAs application of the “substantially beyond” standard articulated in Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56, 59-60 (BIA 2001). But because Mendez-Gutierrez failed to present to the BIA his constitutional challenges to Matter of Monreal-Aguinaga’s “substantially beyond” standard, we dismiss his procedural due process claim as unexhausted. We nevertheless will consider his substantive due process and equal protection claims since they are outside of the BIAs power to address and do not challenge the BIAs own procedure. See Bing, 881 F.3d at 867-68; Sundar, 328 F.3d at 1325. Moreover, because these claims raise genuine constitutional questions, we have jurisdiction to review them. 8 U.S.C. § 1252(a)(2)(D).
PER CURIAM: