Homero Garcia-Ortiz v. Merrick B. Garland ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3446
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Homero Garcia-Ortiz
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 24, 2021
Filed: December 17, 2021
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Before LOKEN, COLLOTON, and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Homero Garcia-Ortiz petitions for review of the decision of the Board of
Immigration Appeals (BIA) denying his application for cancellation of removal.
Having jurisdiction under 8 U.S.C. § 1252(a)(5), this court denies the petition.
Aliens facing removal may request cancellation, a discretionary form of relief.
Ali v. Barr, 924 F.3d 983, 985 (8th Cir. 2019), citing Pereira v. Sessions, 138 S. Ct.
2105, 2109 (2018). To qualify, the alien must show: (1) continuous physical
presence in the United States for at least ten years; (2) good moral character; (3) no
convictions of certain crimes; and (4) that removal would result in “exceptional and
extremely unusual hardship” to a qualifying relative. Apolinar v. Barr, 945 F.3d
1072, 1074 (8th Cir. 2019), citing 8 U.S.C. § 1229b(b)(1). At issue is the BIA’s
determination that Garcia-Ortiz’s removal would not result in exceptional and
extremely unusual hardship to his daughter Rosa.
Garcia-Ortiz, a native of Mexico, illegally entered the United States. The
Department of Homeland Security commenced removal proceedings in 2015. He
applied for cancellation of removal. In April 2018, his teenage daughter, Rosa,
attempted suicide by ingesting ten 500 mg tablets of naproxen and was diagnosed
with major depressive disorder. The next month, at a merits hearing on cancellation,
Garcia-Ortiz testified about the suicide attempt, citing it as evidence that his removal
would result in exceptional and extremely unusual hardship to Rosa.1
The Immigration Judge (IJ) disagreed, finding that Rosa never lost
consciousness during the suicide attempt, made no further attempts to harm herself,
indicated that therapy helped, had not scheduled any follow-up therapy, and
appeared to be doing well. The IJ determined that the record did not support a
correlation between Rosa’s suicide attempt and the removal proceedings. Also,
according to the IJ, there was “a distinct possibility” that Garcia-Ortiz would be able
to reenter the United States after a “limited” period of separation. Garcia-Ortiz
appealed to the BIA. The BIA, denying cancellation, agreed that Garcia-Ortiz failed
to prove Rosa would suffer exceptional and extremely unusual hardship. Garcia-
Ortiz argues the BIA erred by (1) focusing on Rosa’s “current conditions” rather
than “the potential for future psychological harm,” (2) doubting whether the removal
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The application also claimed that removal would result in exceptional and
extremely unusual hardship to Garcia-Ortiz’s son, Juan, who lost sight in one eye
due to a paintball injury. Garcia-Ortiz does not challenge the BIA’s determination
that removal would not result in exceptional and extremely unusual hardship to Juan.
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proceedings caused Rosa’s declining mental health, and (3) failing to consider the
IJ’s misstatement about Garcia-Ortiz’s eligibility for reentry.
“We generally lack jurisdiction to consider the agency’s discretionary
determination that an alien failed to show an ‘exceptional and extremely unusual
hardship’ so as to qualify for cancellation of removal.” Apolinar, 945 F.3d at 1074,
citing 8 U.S.C. § 1252(a)(2)(B)(i). However, appellate courts may review “a
constitutional challenge or question of law.” Id., citing 8 U.S.C. § 1252(a)(2)(D).
Petitions for review sometimes try to cloak challenges to discretionary
determinations “in constitutional or legal garb.” Hernandez-Garcia v. Holder, 765
F.3d 815, 816 (8th Cir. 2014). See also Solis v. Holder, 647 F.3d 831, 833 (8th Cir.
2011) (“Despite characterizing this as a question of law, Solis really challenges the
discretionary conclusion of the BIA against him.”).
I.
The first issue is whether, by focusing solely on Rosa’s current conditions, the
BIA misapplied the standard for exceptional and extremely unusual hardship. This
is a question of law which this court may review. Gomez-Perez v. Holder, 569 F.3d
370, 372 (8th Cir. 2009) (“Gomez-Perez first argues that the IJ and the BIA applied
an incorrect legal standard by focusing on the present circumstances of his children
rather than on the future hardships that they would face if he were removed. This
argument raises a question of law that is within our jurisdiction to review.”).
Garcia-Ortiz likens his case to Figueroa v. Mukasey, 543 F.3d 487 (9th Cir.
2008). Petitioners there testified that, if removed, they would take their U.S. citizen
children with them to Mexico. Figueroa, 543 F.3d at 490-91. They alleged
exceptional and extremely unusual hardship to their daughter (eye condition) and
their son (ADHD and depression). Id. at 491. The IJ evaluated those conditions as
they existed in the United States without considering whether the conditions would
result in exceptional hardship in Mexico. Reversing and remanding, the Ninth
Circuit explained that the exceptional and extremely unusual hardship inquiry “is a
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future-oriented analysis, not an analysis of [] present conditions.” Id. at 497(alteration added).
This court distinguished Figueroa in Gomez-Perez. There, unlike Figueroa,
Gomez-Perez testified that his children would stay in the United States with their
mother if he was removed to Guatemala. Gomez-Perez, 569 F.3d at 371. Still, he
asserted that “the IJ and the BIA applied an incorrect legal standard by focusing on
the present circumstances of his children rather than on the future hardships that they
would face if he were removed.” Id. at 372. This court rejected the argument,
focusing on the BIA’s future-oriented analysis:
[T]he IJ and the BIA properly addressed the hardships that Gomez-
Perez’s removal would pose for his children. In his decision, the IJ
articulated the § 1229b(b)(1)(D) requirement that an applicant for
cancellation of removal demonstrate that “removal would result in
exceptional and extremely unusual hardship” to a qualifying relative.
Furthermore, the IJ acknowledged the economic hardship that Gomez-
Perez’s children would experience as a result of his removal and
concluded that there was insufficient evidence to demonstrate that the
emotional and psychological effect of his departure would create
exceptional and extremely unusual hardship. The BIA adopted the IJ’s
reasoning, stating that the IJ “properly considered . . . the economic and
social disruption which would result from [Gomez-Perez’s] removal.”
The BIA recognized that Gomez-Perez’s “removal would adversely
affect his family” but concluded that this “level of hardship falls short
of the exceptional and extremely unusual standard.” Accordingly,
Gomez-Perez’s argument that the IJ and the BIA applied an incorrect
legal standard is without merit.
Id. at 373 (emphasis in original) (citation omitted).
Gomez-Perez controls here. As in Gomez-Perez, Garcia-Ortiz’s children will
remain in the United States with their mother if he is removed to Mexico. As in
Gomez-Perez, the BIA here engaged in future-oriented analysis. True, the BIA
adopted the IJ’s findings about Rosa’s current conditions, but those findings provide
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context for its determination about how removal would affect her in the future. The
BIA began its decision by articulating Garcia-Ortiz’s obligation to demonstrate that
removal would result in exceptional and extremely unusual hardship. It continued:
While we sympathize with the respondent’s children and we understand
that the respondent’s family will likely encounter difficulties in the
respondent’s absence, the Immigration Judge addressed these hardships
and properly concluded that, considered in the aggregate, the hardships
that the respondent’s United States citizen children will face upon his
removal to Mexico are not substantially beyond that which would
ordinarily be expected from the removal of a family member.
(emphasis added). This future-oriented analysis shows that the BIA applied the
correct legal standard.
II.
The second issue is the IJ’s finding that “the record did not contain sufficient
evidence due to the recency of the incident to support finding that there is a
correlation between [Rosa’s] swallowing 10 naproxen pills and the respondent’s
removal proceedings”—despite her testimony “that her father’s immigration status
was the cause for her depression.” According to Garcia-Ortiz, the IJ, who “doubted
whether Garcia-Ortiz’s removal proceedings had been the cause of Rosa’s declining
mental health,” “missed the opportunity to discuss how his removal might
exacerbate Rosa’s situation in the future.” In footnote 2 of its decision, the BIA
rejected this argument from Garcia-Ortiz’s brief, adopting the IJ’s findings about the
cause of Rosa’s suicide attempt.
This court lacks jurisdiction to review this issue. In another exceptional and
extremely unusual hardship case, the petitioner argued the IJ wrongly discounted
evidence of his son’s adjustment disorder diagnosis. Tejado v. Holder, 776 F.3d
965, 968 (8th Cir. 2015). This court held that the argument was an unreviewable
factual challenge. Id. at 968-69 (“Guerrero’s first argument seeks reversal of the
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IJ’s factual evaluation of his claim. We lack the jurisdiction to do so. While Kevin’s
former condition is unfortunate, the weight that the IJ gave to the impact of Kevin’s
separation from his father remains outside our jurisdiction because it does not
constitute a question of law.”). Here, the cause of Rosa’s declining mental health is
a factual matter involving credibility assessments—“precisely the sort of
discretionary, fact-finding exercise that Congress has shielded from judicial review
in cancellation disputes.” See Nunez-Acosta v. Holder, 326 F. Appx. 978, 981 (8th
Cir. 2009).
III.
The third issue—the BIA’s decision not to address the IJ’s misstatement about
Garcia-Ortiz’s eligibility for reentry—is also outside this court’s jurisdiction.
The IJ misstated Garcia-Ortiz’s eligibility in noting “a distinct possibility”
that Garcia-Ortiz would be able to reenter the United States after a “limited” period
of separation. “Any alien . . . who . . . has been unlawfully present in the United
States for one year or more, and who again seeks admission within 10 years of the
date of such alien’s departure or removal from the United States . . . is inadmissible.”
8 U.S.C. § 1182(a)(9)(B)(i)(II). The Attorney General has discretion to waive
inadmissibility only in the case of an immigrant who is the spouse, son, or daughter
of a United States citizen. 8 U.S.C.A. § 1182(a)(9)(B)(v). Because Garcia-Ortiz
was unlawfully present in the United States for more than one year, and is not the
spouse or child of a U.S. citizen, he was not eligible to reenter the United States for
ten years. However, the BIA’s decision did not discuss—let alone adopt—the IJ’s
conclusion about Garcia-Ortiz’s prospects for reentry. In fact, the BIA stated it was
“unnecessary to address any of the remaining issues raised by the parties on appeal,”
one of which was the IJ’s misstatement of 8 U.S.C. § 1182.
“Only the BIA order is subject to our review, including the IJ’s findings and
reasoning to the extent they were expressly adopted by the BIA.” Fofanah v.
Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006). See Solis, 647 F.3d at 833 (an IJ’s
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legal conclusions are reviewable only to the extent that they have been adopted by
the BIA). Garcia-Ortiz appears to challenge the IJ’s legal conclusion, which was not
adopted by the BIA and is not subject to this court’s review. To the extent Garcia-
Ortiz alleges that the BIA should have considered the IJ’s misstatement in its de
novo hardship analysis, this is exactly the kind of discretionary “weigh[ing] of
factors in the proper balancing test” this court lacks jurisdiction to review. Id.(alteration added).
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The petition for review is denied.
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