Bonifacio Barrera v. Merrick Garland ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1164
BONIFACIO PENA BARRERA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: November 5, 2021 Decided: December 3, 2021
Before NIEMEYER, WYNN, and HARRIS, Circuit Judges.
Petition denied in part and dismissed in part by unpublished per curiam opinion.
Bonifacio Pena Barrera, Petitioner Pro Se. Paul Fiorino, Virginia M. Lum, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bonifacio Pena Barrera, a native and citizen of Mexico, petitions for review of a
decision and order of the Board of Immigration Appeals (“Board”) dismissing Pena
Barrera’s appeal from the Immigration Judge’s (“IJ”) decision denying his application for
cancellation of removal under 8 U.S.C. § 1229b(b)(1). The Board adopted the IJ’s
decision, agreeing with the IJ that Pena Barrera’s application failed because he had not
established that his removal to Mexico would result in an exceptional and extremely
unusual hardship to his three United States citizen children. Before us, Pena Barrera
challenges the IJ’s factual findings. He also argues that the IJ failed to consider his
hardship evidence in its totality and that both the Board and the IJ applied an incorrect legal
standard and failed to sufficiently explain their decisions. For the reasons explained below,
we deny in part and dismiss in part the petition for review.
The Attorney General “‘may cancel removal’ of an applicant who meets four
statutory criteria: 1) that the applicant has been physically present in the United States for
at least ten continuous years, 2) that the applicant had been a person ‘of good moral
character’ during that ten-year period, 3) that the applicant had not committed certain
enumerated offenses, and 4) that the applicant ‘establishes that removal would result in
exceptional and extremely unusual hardship to the [applicant’s citizen or lawful permanent
resident] spouse, parent, or child[ren].’” Gonzalez Galvan v. Garland, 6 F.4th 552, 557
(4th Cir. 2021) (alterations in original) (quoting 8 U.S.C. § 1229b(b)(1)).
In Gonzalez Galvan, we held that the Board’s ruling that an applicant has not met
the exceptional and extremely unusual hardship requirement of § 1229b(b)(1) is a mixed
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question of law and fact that we possess jurisdiction to review under 8 U.S.C.
§ 1252(a)(2)(D). Id. at 560. However, in performing that review, we may not disturb “the
IJ’s factual findings related to the hardship determination,” and we assess only whether the
Board and “the IJ erred in holding that [the] evidence failed as a matter of law to satisfy
the statutory standard of exceptional and extremely unusual hardship.” Id. at 561 (internal
quotation marks omitted). Our review of that legal question is de novo. Id.
Here, insofar as Pena Barrera challenges the IJ’s factual findings, we lack
jurisdiction to review such a challenge and thus dismiss that aspect of the petition for
review. Pena Barrera presents questions of law that we may review, however, in arguing
that the IJ failed to consider his hardship evidence in its totality and that both the Board
and the IJ applied an incorrect legal standard and failed to sufficiently explain their
decisions. But based upon our review of the record, we are satisfied that the Board and the
IJ “applied the correct statutory standard, considered all the evidence, and adequately
explained the reasons for [their] ruling[s].” Id.; see Arita-Deras v. Wilkinson, 990 F.3d
350, 356 (4th Cir. 2021) (explaining that when the Board adopts the IJ’s decision in a
decision of its own, we review both decisions). We therefore conclude that neither the
Board nor the IJ committed an error of law in denying Pena Barrera’s application for
cancellation of removal.
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Accordingly, we deny in part and dismiss in part the petition for review. We
dispense with oral argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would not aid the decisional
process.
PETITION DENIED IN PART
AND DISMISSED IN PART
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