Tacuri-Tacuri v. Garland ( 2021 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 19-1687
    JOSE NOLBERTO TACURI-TACURI,
    Petitioner,
    v.
    MERRICK B. GARLAND, Attorney General,
    Respondent.
    PETITION FOR REVIEW OF AN ORDER
    OF THE BOARD OF IMMIGRATION APPEALS
    Before
    Thompson and Kayatta,
    Circuit Judges.*
    Casey L. Riley for petitioner.
    Jennifer Mascott, United States Department of Justice, with
    whom Joseph H. Hunt, Assistant Attorney General, Civil Division,
    Stephen J. Flynn, Assistant Director, Office of Immigration
    Litigation, and Annette M. Wietecha, Office of Immigration
    Litigation, Civil Division, United States Department of Justice,
    were on brief, for respondent.
    *  Judge Torruella heard oral argument in this matter and
    participated in the semble, but he did not participate in the
    issuance of the panel's opinion in this case. The remaining two
    panelists therefore issued the opinion pursuant to 
    28 U.S.C. § 46
    (d).
    May 24, 2021
    THOMPSON, Circuit Judge.            In this immigration appeal, we
    are tasked with examining whether the petitioner, Jose Nolberto
    Tacuri-Tacuri    (Tacuri),      has    established        that    the      Board   of
    Immigration    Appeals   (BIA)    erred       in    reversing     an    Immigration
    Judge's (IJ) grant of his application for cancellation of removal.
    For the reasons explained below, we deny Tacuri's petition in part
    and otherwise dismiss it for lack of jurisdiction.
    Background
    Tacuri is a native of Ecuador who entered the United
    States without inspection in 2001 to earn more money to help
    support his parents and siblings.             He has lived in Massachusetts
    since 2003 with his wife, who also moved to the U.S. from Ecuador.
    Tacuri and his wife have two minor children, one son (J.T.C.) and
    one daughter (K.T.C.), both born in the U.S.                  Throughout his time
    living in the U.S., Tacuri has worked primarily in construction
    and roofing.    He started his own business in this field around
    2008.
    Regrettably, Tacuri has had frequent contact with local
    police   throughout      his    residency          in   the     U.S.,      including
    approximately   eighteen       charges    for      driving     with    a   suspended
    license or driving under the influence.                 A social worker became
    involved with Tacuri's family after his son began having some
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    problems at school.            Tacuri started attending a class or meetings
    on a regular basis to address his use of alcohol.1
    As a result of Tacuri's frequent contact with Milford,
    Massachusetts police for motor vehicle violations, Immigration and
    Customs Enforcement (ICE) initiated removal proceedings against
    Tacuri in August 2018 by filing a Notice to Appear in the Boston
    Immigration Court. He was detained from August 2018 to April 2020.
    The   Department     of    Homeland     Security          (DHS)   charged   Tacuri      as
    removable    under       the     Immigration        and    Nationality      Act    (INA)
    § 212(a)(6)(A)(i)         as    an   alien    who    had    illegally    entered       the
    country.    Tacuri conceded the charge of removability and indicated
    he would apply for relief from removal through asylum, withholding
    of removal, cancellation of removal, and, in the alternative,
    voluntary departure.            During a hearing in December 2018, Tacuri
    withdrew his application for asylum and withholding of removal,
    leaving only his applications for cancellation of removal pursuant
    to the INA § 240(A) (codified at 8 U.S.C. § 1229a) and voluntary
    departure in the alternative.                As we will discuss in depth soon,
    an IJ can consider granting a nonpermanent resident's application
    for cancellation of removal only when the IJ finds, among other
    requirements,      the     applicant's         removal       would   result       in   an
    1The record does not indicate exactly what kind of course or
    meetings Tacuri attended, only that they were related to his use
    of alcohol.
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    "exceptional and extremely unusual hardship" to a United States
    relative.    8 U.S.C. § 1229b(b)(1)(D).
    During the hearing, the IJ heard testimony from Tacuri
    and his wife about their family relationship and the effect his
    removal would have on their two young children.       With respect to
    their then five-year-old daughter, Tacuri's wife testified that
    K.T.C. frequently cried and asked where her father was.        As to
    their then twelve-year-old son, J.T.C., Tacuri's wife explained
    that he was "suffering" without his father, had become quiet,
    wasn't eating much, and was afraid of what his friends would say
    about his father's absence.      A report submitted from a social
    worker described J.T.C.'s noticeable decline in personal hygiene,
    causing complaints about his body odor from school officials.
    Although J.T.C.'s grades improved after his father was taken into
    custody, his school guidance counselor expressed concern because
    J.T.C. had stated he worked to improve his grades so he didn't
    cause additional worry or stress to his mother.
    J.T.C. has always been asthmatic, which has been a source
    of concern for Tacuri and his wife.       J.T.C. takes pills and uses
    an inhaler every day, which costs about $75 every two weeks despite
    having health insurance.      Tacuri's wife stated J.T.C.'s asthma
    worsened after his father's detainment.       He started experiencing
    chest pains and he felt less safe participating in his usual karate
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    and soccer activities without his father around to help if he were
    to faint.
    Tacuri testified that his wife and two children would
    remain in the United States if he were removed due to Ecuador's
    lack of educational opportunities and medical resources necessary
    to manage J.T.C.'s asthma. As Tacuri explained, he would be unable
    to continue providing economic support to his family from Ecuador
    because he would likely earn less than $10 per day, if he could
    find employment at all.     Tacuri's wife typically made about $350
    per week working at the local grocery store but had been able to
    earn $500 per week after her husband's detainment by working
    additional hours.    She expressed concern, however, that she would
    be unable to make enough money to support her children without her
    husband's assistance and income; at the time of the hearing she
    was already borrowing money from family members.
    After considering all of the testimony and documents
    submitted to support Tacuri's application for cancellation of
    removal, the IJ concluded Tacuri's removal to Ecuador would pose
    an "exceptional and extremely unusual hardship" to both of Tacuri's
    children, but especially to his son.        The IJ focused on J.T.C.'s
    asthma, deeming this medical condition "compelling."         The IJ also
    concluded that Tacuri's wife would face considerable financial
    difficulty   in   paying   for   J.T.C.'s   medical   care   without   the
    assistance of Tacuri's usual income, resulting in "exceptional and
    - 6 -
    extremely unusual hardship" to J.T.C.        The IJ decided Tacuri met
    the other statutory requirements for cancellation of removal and
    granted Tacuri's application for cancellation of removal.2             The IJ
    did not reach the merits of Tacuri's alternative application for
    voluntary departure.
    Unsatisfied   with   the   result,    DHS   appealed   the   IJ's
    decision to the BIA.      The BIA disagreed with the IJ's conclusion
    that Tacuri had met the required "exceptional and extremely unusual
    hardship"   standard   and   sustained    DHS's    appeal.    In   a     brief
    decision, the BIA focused on J.T.C.'s academic record reflecting
    strong grades, emphasized the IJ's finding that J.T.C.'s asthma
    was "currently manageable and largely stable," and noted that
    J.T.C. was active and played sports.         Despite the IJ's finding
    that Tacuri's family "could struggle to provide [J.T.C.] with his
    required medicine," the BIA stated there was no indication J.T.C.
    would be deprived of his medication, especially because the family
    indicated Tacuri's wife and children would remain in the United
    States and the family could retain health insurance.          Further, the
    2 The IJ concluded Tacuri had the requisite "good moral
    character" to be eligible for cancellation of removal. Although
    the IJ acknowledged Tacuri's "sometimes troubling relationship
    with alcohol," the IJ looked positively upon the fact that Tacuri
    met with his son's school social workers and proactively attended
    an alcohol course, which he attended until his detention, to change
    his behavior and "become a better father." Further, the IJ found
    that Tacuri's numerous driving offenses in multiple jurisdictions
    were explained by Tacuri's need to get to work despite not having
    a license, which he eventually remedied by hiring a driver.
    - 7 -
    BIA opined that there was no evidence J.T.C.'s asthma could not
    continue to be managed if Tacuri is removed to Ecuador.                            Aside
    from       J.T.C.'s     asthma,     the     BIA    also    found    Tacuri   had     not
    demonstrated        that      his   children's       mental    health    issues     were
    "exceptional and extremely unusual" for children separated from a
    parent.       Ultimately, the BIA concluded Tacuri had not "show[n]
    that his return to Ecuador would have a material economic impact
    on his children for cancellation of removal purposes" because his
    wife was employed full time and Tacuri's construction skills were
    transferrable to Ecuador.                 "[A] lowered standard of living and
    reduced economic opportunities," the BIA reasoned, "generally are
    insufficient" to support "a finding of exceptional and extremely
    unusual hardship."
    In   addition,        the    BIA    remanded    Tacuri's    alternative
    application for voluntary departure to the IJ because the IJ had
    not provided a ruling on this alternative relief when he granted
    Tacuri's application for cancellation of removal.3                      Before the IJ
    issued a ruling about voluntary departure, Tacuri filed a petition
    for    review      of   the    BIA's      decision    in     this   Court.    The     IJ
    subsequently granted Tacuri's application for voluntary departure,
    and this Court then granted his motion for a stay of removal
    Because the BIA concluded Tacuri had not met his burden to
    3
    demonstrate "exceptional and extremely unusual hardship," it did
    not examine whether Tacuri had met his burden of establishing he
    had good moral character.
    - 8 -
    pending our review of his case (legalese meaning Tacuri could
    remain in the United States until we decide his case).         The time
    has come for us to do just that.
    Discussion
    Tacuri argues that the BIA applied the wrong legal
    standard and ignored its own binding precedent when it overturned
    the IJ's grant of his application for cancellation of removal.
    The government counters that we lack the jurisdiction to review
    Tacuri's challenges to the BIA's decision.
    We begin with a quick primer about the relief Tacuri
    requested.     Cancellation of removal is one of the discretionary
    forms of relief available to the Attorney General for nonpermanent
    residents who have been deemed removable from the country when the
    applicants can establish the following four requirements:           (1)
    they have been in the United States continuously for at least ten
    years; (2) they are a person of "good moral character"; (3) they
    have not been convicted of certain criminal offenses; and (4) --
    the only part at issue here -- they can show that their removal
    would result in "exceptional and extremely unusual hardship" to a
    relative with permanent legal status in the United States.            8
    U.S.C. § 1229b(b)(1); see also § 1229a(c)(4).
    Before we get to the merits of this issue, however, we
    have a jurisdictional hurdle to clear. Typically, this Court lacks
    jurisdiction     to   review   a    BIA     decision   concerning   this
    - 9 -
    discretionary    remedy   of   cancellation   of   removal.   
    8 U.S.C. § 1252
    (a)(2)(B)(i); Alvarado v. Holder, 
    743 F.3d 271
    , 275 (1st
    Cir. 2014).   We retain jurisdiction, however, over "constitutional
    claims or questions of law."      
    8 U.S.C. § 1252
    (a)(2)(D); Alvarado,
    743 F.3d at 275.    If Tacuri's arguments present constitutional or
    legal issues (and he argues they do), then we have jurisdiction
    and we review those claims de novo.       See Alvarado v. Whitaker, 
    914 F.3d 8
    , 12 (1st Cir. 2019).
    In his petition for review of the BIA's decision, Tacuri
    asserts the BIA both failed to identify and apply each of the
    factors identified in its governing precedent and expected him to
    meet a higher bar for the "exceptional and extremely unusual
    hardship" standard than that set forth in other cases.        While the
    "choice and shape" of a legal standard is "quintessentially a
    question of law," Ayeni v. Holder, 
    617 F.3d 67
    , 71 (1st Cir. 2010),
    the presence of a constitutional or legal question is a "matter of
    substance, not a function of labeling," Alvarado, 743 F.3d at 275.
    To that end, styling a factual challenge as a constitutional or
    legal error -- as the government asserts Tacuri is doing here --
    does not "transform an unreviewable issue of fact into a reviewable
    issue of law."    Id.
    As we have stated on more than one occasion, we usually
    decline to review a determination of whether an applicant for
    cancellation of removal has satisfied the hardship requirement
    - 10 -
    because this is typically a purely factual inquiry.          Id. (citing
    Castro v. Holder, 
    727 F.3d 125
    , 128 (1st Cir. 2013)).             Although
    applying the wrong legal standard is indeed a legal issue, the
    evidentiary weight involved in a hardship determination is not.
    
    Id.
     (collecting cases where we have not had jurisdiction to review
    challenges to alleged hardships to a petitioner's family).           To be
    sure, the BIA does not commit an error of law "each and every time
    a piece of evidence is described with less than perfect accuracy."
    Ayeni, 
    617 F.3d at 72
     (holding there was no jurisdiction to
    determine whether the BIA "neglected adequately to weigh the
    seriousness of [petitioner's] eldest child's asthma").
    As we mentioned above, Tacuri attempts to clear this
    jurisdictional hurdle by presenting his claims as legal issues
    this Court has jurisdiction to review and decide.          He identifies
    ways in which the BIA "cherry-pick[ed]" from the record to focus
    only on some facts while ignoring other facts, resulting (he says)
    in ultimately requiring him to show unconscionability to meet the
    hardship standard.     He also asserts that even though the BIA cited
    three   instrumental    cases   for   the   "exceptional   and   extremely
    unusual hardship" standard, it did not discuss these precedents
    nearly enough to justify reversing the IJ's decision.
    The government responds that Tacuri merely disagrees
    with how the BIA weighed the facts in his case.       Disagreement with
    how the BIA reached an unfavorable outcome, the government reasons,
    - 11 -
    is not a legal or constitutional issue that falls within our
    purview.     And so the government urges us to dismiss Tacuri's
    petition for review for lack of jurisdiction.
    It is not obvious to us whether Tacuri's arguments go
    only to his quibbling with the BIA's take on the facts of his case
    (as the government contends) or to his assertion that the BIA erred
    as a matter of law by applying a more demanding standard for Tacuri
    to meet than that identified in the caselaw.             Fortunately, we need
    not decide because, as this Court has done before when statutory
    jurisdiction is ambiguous but the merits are straightforward, we
    bypass the jurisdictional issue and explain why the merits hold no
    water.     See Alvarado, 743 F.3d at 276 (citing Royal Siam Corp. v.
    Chertoff, 
    484 F.3d 139
    , 144 (1st Cir. 2007)) (passing over a
    jurisdictional claim to explain why precedent "clearly dictates"
    the result on the merits).        While federal courts typically cannot
    apply     "hypothetical     jurisdiction"     in   terms        of   Article    III
    jurisdiction, we can sidestep statutory jurisdiction when, as
    here, it makes sense to do so because the resolution on the merits
    of   the    case    is     straightforward.        
    Id.
         (collecting         cases
    demonstrating this Court has taken this path in similar immigration
    cases).      Without further ado, we therefore proceed to assess
    Tacuri's arguments on the merits.
    To     prove    an   "exceptional      and     extremely      unusual
    hardship,"    an    applicant    must   "establish       that    his   qualifying
    - 12 -
    relatives would suffer hardship that is substantially different
    from, or beyond, that which would normally be expected from the
    deportation of an alien with close family members here."           In re
    Monreal-Aguinaga, 
    23 I. & N. Dec. 56
    , 65 (BIA 2001) (en banc)
    (Matter of Monreal).       An applicant need not show, however, that
    such hardship would be "unconscionable."        
    Id. at 60-61
    .   In Matter
    of Monreal, the BIA indicated immigration judges could work in the
    space in between "hardship that is substantially beyond that which
    would    ordinarily   be    expected"     and   "unconscionability"   by
    considering "the ages, health, and circumstances of qualifying
    lawful permanent resident and United States citizen relatives."
    
    Id. at 63
    .   The BIA identified "strong" circumstances to include
    "an applicant who has elderly parents in this country who are
    solely dependent upon him for support . . . [or who has] a
    qualifying child with very serious health issues[] or compelling
    special needs in school."      
    Id.
       In addition, the BIA stated:
    A lower standard of living or adverse country conditions
    in the country of return are factors to consider only
    insofar as they may affect a qualifying relative, but
    generally will be insufficient in themselves to support
    a finding of exceptional and extremely unusual hardship.
    As with extreme hardship, all hardship factors should be
    considered in the aggregate when assessing exceptional
    and extremely unusual hardship.
    
    Id. at 63-64
    .4
    4 The BIA adopted these considerations from a more general
    hardship standard it applied before Congress changed the
    applicable standard from "extreme hardship" to "exceptional and
    - 13 -
    The    "exceptional    and     extremely       unusual     hardship"
    standard "constitutes a high threshold that is in keeping with
    Congress' intent to substantially narrow the class of aliens who
    would qualify for relief."           In re Gonzalez Recinas, 
    23 I. & N. Dec. 467
    , 470 (BIA 2002) (approving cancellation of removal for
    single mother of six children, four of whom are United States
    citizens, with no remaining close relatives in Mexico).                   While an
    applicant's child's poor health is a compelling factor, Matter of
    Monreal, 23 I. & N. Dec. at 63, the applicant must further
    establish that "the relative has a serious medical condition and,
    if he or she is accompanying the applicant to the country of
    removal, that adequate medical care for the claimed condition is
    not reasonably available in that country,"               Matter of J-J-G-, 
    27 I. & N. Dec. 808
    ,   811   (BIA    2020)   (holding    that     applicant's
    daughter's      hypothyroidism      may    constitute    a     serious     medical
    condition but does not constitute an "exceptional and extremely
    unusual hardship" because she could still receive medical care in
    Guatemala). Overall, the BIA couches its standard for "exceptional
    and extremely unusual hardship" in the qualifier that "reasonable
    people can agree that the meaning of these terms . . . are not
    terms of 'fixed and inflexible content or meaning.'"                    Matter of
    extremely unusual hardship" in 1996. Alvarado, 743 F.3d at 276,
    276 n.2 (citing Matter of Monreal, 23 I. & N. Dec. at 56 and Matter
    of Anderson, 
    16 I. & N. Dec. 596
     (1978)).
    - 14 -
    Monreal, 23 I. & N. Dec. at 59 (citing Matter of Hwang, 
    10 I. & N. Dec. 448
    , 451 (BIA 1964)).
    Now that we have identified the standard, we turn to
    Tacuri's specific arguments regarding his application and the way
    in which he claims the BIA erred in evaluating it.              First, he
    argues that the BIA erred by ignoring its own precedent when it
    concluded he had not demonstrated an "exceptional and extremely
    unusual hardship" to his children if he is deported.          Tacuri says
    the BIA's cursory citations to its own governing precedent for
    "exceptional and extremely unusual hardship" was not good enough
    because the BIA ignored the "particulars of the factors" these
    cases lay out.      We disagree with Tacuri.       Our caselaw indicates
    these citations are indeed good enough:        For example, in Alvarado,
    the BIA didn't cite its most prominent hardship cases, and we still
    found no legal error because the BIA had applied the precepts from
    the cases.    743 F.3d at 276-77.     Here, the BIA cited two governing
    cases, Matter of Monreal and In re Andazola-Rivas, 
    23 I. & N. Dec. 319
    ,   323   (BIA   2002)   (Matter   of   Andazola),   acknowledging   the
    precepts from these cases after it summarized the facts on the
    record about Tacuri's two children, including J.T.C.'s asthma and
    the family's economic circumstances.
    On this same point, Tacuri argues that the governing
    caselaw "force[s the BIA] to address the complete record," which,
    according to Tacuri, the BIA did not do.           For instance, Tacuri
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    points out how the BIA did not consider J.T.C.'s personal hygiene
    issues and only gave "selective" attention to J.T.C.'s asthma by
    mentioning it was "largely stable."          Further, Tacuri asserts the
    decision failed to mention that J.T.C.'s $75 inhaler cost was the
    out-of-pocket cost after the insurance covered a portion and that
    J.T.C.'s asthma had gotten worse since his father's detainment.
    This argument falls flat, however, because he cites no caselaw to
    support the proposition that the BIA must specifically address
    every evidentiary submission within the record.
    Tacuri also claims the BIA improperly "applied a higher
    standard than required" for determining "exceptional and extremely
    unusual   hardship"     by   impermissibly     (though     not   explicitly)
    requiring unconscionability.       Remember, the BIA must "consider the
    ages, health, and circumstances of qualifying lawful permanent
    resident and United States relatives" but stops short of requiring
    unconscionability     when   it   determines     whether   the   applicant's
    removal   would    constitute     "exceptional    and    extremely   unusual
    hardship" to these family members.          Matter of Monreal, 23 I. & N.
    Dec. at 63.       Here, the BIA undoubtedly weighted some pieces of
    evidence differently than the IJ; otherwise it wouldn't have
    reached a different conclusion.         But, in our view, the BIA did
    cite the appropriate standard and did not require the hardship to
    Tacuri's children to be unconscionable.          In fact, the BIA decision
    does not mention the word "unconscionable" at all.
    - 16 -
    The    "exceptional       and     extremely     unusual      hardship"
    standard is supposed to be hard to meet and is evaluated in
    comparison to the hardships typically felt by children whose
    parents are removed from the country -- this in itself sets a high
    bar.    See Matter of Monreal, 23 I. & N. Dec. at 63; Matter of
    Gonzalez Recinas, 23 I. & N. Dec. at 470.           While Tacuri justifiably
    believes    the    BIA's    conclusion      is   unconscionable         given   the
    injurious impact his departure will have on his entire family,
    that does not translate to the BIA applying an unconscionability
    standard in its decision.         Ultimately, Tacuri's claims boil down
    to his fundamental disagreement with how the BIA weighed and
    considered the facts in his case.              The BIA adequately explained
    and    supported   its     decision    that    Tacuri     failed   to    meet   the
    "exceptional and extremely unusual hardship" standard.                      Citing
    relevant precedent (as we addressed above), the BIA mentioned
    J.T.C. and K.T.C.'s ages, it explored the children's "alleged
    mental health issues," it addressed (however cursorily) J.T.C.'s
    asthma, and it considered the economic impact Tacuri's removal
    would have on his family.
    All of this to say that, in our view, the BIA did not
    commit any legal errors when it concluded Tacuri had not met his
    burden to show his removal would result in "exceptional and
    extremely unusual hardship" to his family.                To the extent Tacuri
    has challenged the BIA's decision as legally unsound, his claim
    - 17 -
    fails on the merits.   And to the extent Tacuri has disputed the
    weight to which the BIA accorded some evidence over other evidence
    and some factors over other factors, we have no jurisdiction to
    consider these arguments.
    Conclusion
    This case is yet another occasion when we "regret that
    we can do nothing more for petitioner[] and [his] children."
    Alvarado, 743 F.3d at 278.     Tacuri's removal from this country
    will undoubtedly be devastating for his wife and children.     The
    law, however, does not lean in Tacuri's favor, both in the daunting
    standard it sets and in the wide discretion it grants to the BIA
    to deny relief even when others would not do so.   And so, for the
    foregoing reasons, the petition is denied in part and otherwise
    dismissed for lack of jurisdiction.
    - 18 -
    

Document Info

Docket Number: 19-1687P

Filed Date: 5/24/2021

Precedential Status: Precedential

Modified Date: 5/24/2021