Esquivel-Muniz v. Garland ( 2022 )

Case: 21-60769 Document: 00516351568 Page: 1 Date Filed: 06/09/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 9, 2022
No. 21-60769 Lyle W. Cayce
Summary Calendar Clerk
Francisco Esquivel-Muniz,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 936 769
Before Higginbotham, Higginson, and Duncan, Circuit Judges.
Per Curiam:*
Francisco Esquivel-Muniz, a native and citizen of Mexico, petitions
for review of the decision of the Board of Immigration Appeals (BIA)
dismissing his appeal from the denial of his application for cancellation of
removal. Esquivel-Muniz contends that the BIA erred in determining that
*
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opinion should not be published and is not precedent except under the limited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.
Case: 21-60769 Document: 00516351568 Page: 2 Date Filed: 06/09/2022
No. 21-60769
he failed to show that his removal would cause exceptional and extremely
unusual hardship to his children and father and that he warrants voluntary
departure. Although he also argues that the BIA failed to consider the
relevant country conditions in Mexico before determining that he failed to
demonstrate exceptional and extremely unusual hardship to his qualifying
relatives, this claim is unexhausted, and therefore we lack jurisdiction to
address it. See Martinez-Guevara v. Garland, 27 F.4th 353, 360 (5th Cir.
2022).
We review the BIA’s decision and consider the immigration judge’s
decision only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d
220, 224 (5th Cir. 2018). Factual findings are reviewed for substantial
evidence, and legal determinations are reviewed de novo. Guerrero Trejo
v. Garland, 3 F.4th 760, 774 (5th Cir. 2021).
Cancellation of removal is available to applicants who have been
continuously present in the United States for 10 or more years prior to filing
an application, who can establish good moral character during that time, who
have no disqualifying convictions, and whose spouse, children, or parent
would suffer exceptional and extremely unusual hardship if the applicant
were removed. 8 U.S.C. § 1229b(b)(1).
Despite Esquivel-Muniz’s assertions to the contrary, the
consequences facing his father and children if he were removed are not
“‘substantially’ beyond the ordinary hardship that would be expected when
a close family member leaves this country.” Guerrero Trejo, 3 F.4th at 775
(quoting In Re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (BIA 2001)).
Moreover, his claim that little weight was afforded to the financial hardships
that his children and father would face if he were removed or to the
difficulties his children would face relocating to Mexico is belied by the
record. The record reflects that the BIA considered whether the financial,
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Case: 21-60769 Document: 00516351568 Page: 3 Date Filed: 06/09/2022
No. 21-60769
emotional, and educational hardship that Esquivel-Muniz’s father and
children would rise to the level of exceptional and extremely unusual
hardship and that the immigration judge explicitly considered his testimony
that he is afraid to return to Mexico because of cartel violence. While
Esquivel-Muniz also claims that no weight was afforded to the psychological
difficulties his children would face if forced to relocate to Mexico, he failed
to offer any testimony or corroborating evidence in support of this concern.
The record does not compel a finding that his father and children would
suffer exceptional and extremely unusual hardship if he were removed; thus,
substantial evidence supports the determination that Esquivel-Muniz was
ineligible for cancellation of removal. See Guerrero Trejo, 3 F.4th at 774.
Finally, Esquivel-Muniz argues that the BIA erred in affirming the
immigration judge’s conclusion that he did not warrant voluntary departure.
However, because the denial of voluntary departure was based on
discretionary grounds, we lack jurisdiction to review that decision. See
Sattani v. Holder, 749 F.3d 368, 372-73 (5th Cir. 2014), abrogated in part on
other grounds by Guerrero Trejo v. Garland, 3 F.4th 760, 772-73 (5th Cir. 2021).
Accordingly, the petition for review is DENIED in part and
DISMISSED in part.
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