Melchor Garcia-Lopez v. Merrick B. Garland ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0569n.06
No. 21-3263
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 07, 2021
MELCHOR GARCIA-LOPEZ, ) DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR REVIEW OF
v. ) THE DECISION OF THE UNITED
) STATES BOARD OF
MERRICK B. GARLAND, Attorney General, ) IMMIGRATION APPEALS
)
Respondent. )
Before: SUTTON, Chief Judge; SILER and READLER, Circuit Judges.
SILER, Circuit Judge. Melchor Garcia-Lopez (Garcia) petitions for review of the Board
of Immigration Appeals’ (BIA) and Immigration Judge’s (IJ) decisions denying his application for
cancellation of removal from the United States. As Garcia has not established “exceptional and
extremely unusual hardship” to his mother or daughter resulting from his removal, we DENY his
petition.
In 2013, Garcia received a Notice to Appear charging him with removability as a noncitizen
present in the United States without being admitted or paroled. After conceding removability on
the ground charged, Garcia sought cancellation of removal. “The cancellation-of-removal statute
allows the Attorney General to cancel the removal of an immigrant if the immigrant satisfies four
eligibility requirements[,]” only one of which is at issue here: Garcia must establish “‘that removal
would result in exceptional and extremely unusual hardship to’ a qualifying relative,” here his
mother or daughter. Singh v. Rosen, 984 F.3d 1142, 1147, 1151 (6th Cir. 2021) (quoting 8 U.S.C.
§ 1229b(b)(1)). Both the IJ and BIA concluded that Garcia failed to satisfy this requirement.
Case No. 21-3263, Garcia Lopez v. Garland
Garcia, a Mexican native, resides in Tennessee and manages a Mexican restaurant. His
sixty-four-year-old mother, Maria de Jesus Lopez-Andrade (Lopez), has lived with him for two
and a half years.1 Lopez is diagnosed with hypertension, hyperlipidemia, Type 2 diabetes,
depression, and is treated for the effects of fluid retention and sleeplessness. Her conditions require
regular appointments with her physician and several prescription medications. Lopez does not
have health insurance, and, due to her age and health conditions, is unemployed. She does not
receive government assistance, but instead relies on Garcia for financial support. Garcia pays for
her medical costs as well, and, because Lopez has trouble leaving the apartment, he takes her to
doctors’ appointments. Lopez has eleven other children, all of whom reside in Alabama. She has
one son and one daughter who are citizens and one son who is a lawful permanent resident; her
daughter successfully petitioned for Lopez to become a lawful permanent resident in 2010. About
twice a month, Garcia and Lopez travel to Alabama to visit her children and grandchildren. For a
while, Lopez resided with one of her other sons in Alabama, but eventually she moved in with
Garcia after her other son married and lost the time and money to take care of her. If Garcia were
removed to Mexico, Garcia and Lopez testified that Lopez would return with him, where they
could reside in a small house she owns in Jalisco.
Garcia also has a ten-year-old citizen daughter who resides in Nebraska with Garcia’s ex-
wife. Garcia pays his ex-wife $300 per month in child support without a court order and sees his
daughter every year during the summer for two months. Garcia maintains a close relationship with
his daughter and speaks with her regularly throughout the year. If Garcia were removed, his
daughter would remain in Nebraska with her mother.
1
All dates, locations, and time periods are described as they were on the date of Garcia’s
cancellation of removal hearing: July 18, 2016.
Case No. 21-3263, Garcia Lopez v. Garland
Although circuit courts have jurisdiction to review final orders of removal, 8 U.S.C. §
1252(a)(1), “no court shall have jurisdiction to review” judgments regarding discretionary relief,
including cancellation of removal, Id. § 1252(a)(2)(B). The only exception is for “constitutional
claims or questions of law.” Id. § 1252(a)(2)(D). For purposes of this statute, “questions of law”
also includes “the application of a legal standard to undisputed or established facts.” Guerrero-
Lasprilla v. Barr, ––– U.S. ––––, 140 S. Ct. 1062, 1068 (2020). Accordingly, we have jurisdiction
to review the “ultimate hardship conclusion.” Singh, 984 F.3d at 1150.
Deciding whether this mixed question is reviewable turns on the substance of the claim,
not the label placed on it by the petitioner. Id. at 1149. For example, we “still cannot review any
of the factual findings underlying” the hardship determination. Id. at 1149. We recently
recognized that “[a]lthough ‘our review of the conclusion likely should be deferential,’ this court
has not yet determined what standard of review applies in this type of case.” Seidu v. Garland, --
- F. App’x ---, ---, 2021 WL 4191275, at *2 (6th Cir. Sept. 15, 2021) (citation omitted) (quoting
Singh, 984 F.3d at 1154). The parties disagree about the standard of review, but like the panels
before us, we need not resolve this issue because the unreviewable factual findings allow only one
result. See, e.g., Araujo-Padilla v. Garland, 854 F. App’x 646, 649 (6th Cir. 2021); Rodriguez-
Salas v. Garland, 849 F. App’x 582, 585 (6th Cir. 2021). Finally, “where, as here, the BIA ‘adopts
the IJ’s decision and supplements that decision with its own comments,’ we review both opinions.”
Bi Qing Zheng v. Lynch, 819 F.3d 287, 293 (6th Cir. 2016) (quoting Hachem v. Holder, 656 F.3d
430, 434 (6th Cir. 2011)).
Garcia raises several challenges to the decisions below but does not dispute the legal
standard. Garcia must “provide evidence of harm to his spouse, parent, or child substantially
beyond that which ordinarily would be expected to result from” his removal. Monreal-Aguinaga,
23 I. & N. Dec. 56, 59 (B.I.A. 2001); see also Araujo-Padilla, 854 F. App’x at 649. This is a “very
Case No. 21-3263, Garcia Lopez v. Garland
high” bar to relief. Andazola-Rivas, 23 I. & N. Dec. 319, 322 (B.I.A. 2002). Congress intended
such relief “to be limited to ‘truly exceptional,’” and “very uncommon” situations. See Monreal-
Aguinaga, 23 I. & N. Dec. at 59–62 (citation omitted). The factors to consider include the ages,
health, and circumstances of the qualifying relatives; family and community ties in the United
States and abroad; and any adverse conditions in the country of return to the extent that they affect
qualifying relatives. Id. at 63. These factors must be “considered in the aggregate,” and any factors
relating to Garcia may “only be considered insofar as they may affect the hardship” of his daughter
or mother. Id. at 63–64; see also Gonzalez Recinas, 23 I. & N. Dec. 467, 472–73 (B.I.A 2002).
Garcia claims the BIA failed to consider a litany of facts that show that his mother would
suffer medical hardship if Garcia returned to Mexico. Contrary to Garcia’s assertion, both the IJ
and BIA explicitly considered the majority of these facts, and any further parsing of the record is
unwarranted.
Garcia also argues the BIA incorrectly applied its precedent in J-J-G, 27 I. & N. Dec. 808(B.I.A 2020), which held that when a claim is based on medical hardship, “an applicant needs to
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.” Id. at 811. But it is “the applicant’s burden to establish that
a qualifying relative will accompany him” to the country. Id. at 811 n.3. Garcia claims the IJ
failed to consider Lopez’s substantial medical needs and the inadequate medical care in Mexico.
The gist of his argument, however, is that we should overturn the IJ’s factual finding. From the
beginning, the IJ and BIA did not believe Lopez would return with Garcia, and even still, both
found that Garcia did not show that Lopez’s other eleven children in the United States would desert
her or that she would go without medical treatment in Mexico. We cannot disturb these findings,
Case No. 21-3263, Garcia Lopez v. Garland
see Singh, 984 F.3d at 1155, and, therefore, Garcia has not proved that Lopez would suffer
substantial medical hardship upon the return to Mexico.
Garcia contends the BIA also failed to recognize Lopez’s financial hardship if Garcia were
removed. But this argument depends on whether Lopez would return with Garcia and, further,
whether Garcia could find a job in Mexico. Again, the IJ did not believe Lopez would return to
Mexico. Garcia contests this finding because Lopez explained that her children in the United
States have families of their own and would not support her. But Lopez never asked them. And
notably, one of her daughters signed an affidavit of support in favor of Lopez’s status as a lawful
permanent resident, promising to support Lopez if she becomes a public charge. We do not agree,
as Garcia argues, that the affidavit of support imposes merely a “speculative” or “optional”
obligation on Lopez’s daughter. See generally 8 U.S.C. § 1183a (establishing that a sponsor agrees
to “maintain the sponsored alien at an annual income” of 125 percent of the poverty line in a
“legally enforceable” agreement). At a minimum, the affidavit of support was relevant to whether
Garcia showed that Lopez would suffer financial hardship upon his removal. And as to whether
Garcia could find a job in Mexico to support Lopez: the BIA and IJ noted Garcia’s experience
working in Mexican restaurants and found that Garcia only alleged that restaurants in Mexico were
smaller than those in the United States but did not show how this would affect his ability to find a
job. Garcia has not shown that Lopez will suffer financial hardship based, at least in part, on his
inability to support her in Mexico. See, e.g., Rodriguez-Salas, 849 F. App’x at 585 (“But
Rodriguez-Salas had not shown that he would be unable to work in Mexico given his prior work
experience in construction and farming.”). In fact, Lopez owns a house in Mexico, where she and
Garcia can reside upon his removal. Absent any further evidence, at most Lopez shows some
financial detriment to returning with Garcia, but nothing more. See Andazola-Rivas, 23 I. & N.
Case No. 21-3263, Garcia Lopez v. Garland
Dec. at 323 (“[I]t has long been settled that economic detriment alone is insufficient to support
even a finding of extreme hardship.”).
In a similar vein, Garcia argues that he would be unable to continue supporting his daughter
from Mexico, and that without his monthly child support payments, his ex-wife could not support
her. Once again, Garcia’s argument hinges on his contention that he would be unable to find a job
in Mexico, which was not established below. Cf. Ramirez-Garcia v. Garland, No. 20-4005, 2021
WL 3017274, at *3 (6th Cir. July 16, 2021) (“When asked whether he thought he could support
his children working in the fields, Ramirez testified only, ‘Well, considering the economy right
now it would be pretty hard[,]’ not that he would be unable to find work.” (alteration in original)).
Otherwise, as Garcia’s daughter would remain in Nebraska in the care of her mother, Garcia failed
to show she would suffer exceptional and extremely unusual financial hardship upon his removal.
Garcia maintains the BIA also failed to consider Lopez’s emotional and psychological
hardship. Garcia primarily argues that Lopez’s depression would worsen if she were forced to
return to Mexico or risk becoming homeless in the United States. Not to belabor the point, but the
findings below discounted Lopez’s claim that she would return to Mexico—or ever become
homeless—as her other children could support her while she remained in the United States. At
most, then, Lopez would suffer emotional hardship that ordinarily accompanies deportation of an
alien with close family members in the United States. The same is true for Garcia’s argument that
a child losing her father is exceptional and extremely unusual hardship. “Unfortunately, separation
is not ‘exceptional and extremely unusual’ hardship in removal cases.” Seidu, --- F. App’x at ---,
2021 WL 4191275, at *2; see also Araujo-Padilla, 854 F. App’x at 651 (“Araujo points us to
testimony in the record that his then-fifteen-year-old daughter had shown some signs of depression
due to his impending removal . . . . However, like the BIA, we cannot say that this hardship is
Case No. 21-3263, Garcia Lopez v. Garland
‘substantially different from, or beyond, that which would normally be expected . . . .’” (emphasis
added)). We see no error in the BIA’s determination on this issue.
Garcia claims the IJ disregarded BIA precedent in Gonzalez Recinas, 23 I. & N. Dec. 467(B.I.A. 2002), by failing to consider that he may not be able to immigrate into the United States.
On appeal, the BIA considered this objection and held that it did not interpret Gonzalez Recinas to
mandate an express assessment of the issue in every removal case, but even still, the BIA assumed
that Garcia lacked an alternative means of immigrating to the United States and held that this,
alone, did not establish error in the IJ’s overall determination. Cf. Araujo-Padilla, 854 F. App’x
at 651 (“The Board acknowledged Araujo's argument regarding his inability to ‘immigrate to the
United States in the future’ and was ‘unpersuaded’ that this could ‘change the outcome of his
proceedings.’ There was no need for the Board to say more.”). Considering that Garcia failed to
show that his daughter or mother would be unsupported after his removal, Garcia’s lack of options
to immigrate into the United States does not add much. See id.In addition to his arguments regarding the ultimate hardship conclusion, Garcia argues the
IJ violated his Fifth Amendment right to due process. Garcia maintains that the IJ made “several
presumptions, based on outdated beliefs” and that the IJ’s reasoning that simply “because there are
medical services available in the United States and Ms. Lopez has a home in Mexico, the hardship
is not met[,] is totally unrealistic and extremely weak, and legally wrong.” Garcia’s attempt to
“repackage” his challenge to the BIA’s hardship determination is unsuccessful. Id. Other than
disputing the findings below, Garcia does not allege an error of constitutional magnitude in his
cancellation proceedings and, therefore, we reject his due process claim.
PETITION DENIED.