Artemio Garcia-Pascual v. Merrick B. Garland ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2529
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Artemio Garcia-Pascual
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, Attorney General of United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: June 23, 2022
Filed: March 14, 2023
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Before SMITH, Chief Judge, ARNOLD and STRAS, Circuit Judges.
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SMITH, Chief Judge.
Artemio Garcia-Pascual, a native and citizen of Mexico, petitions for review
of an order of the Board of Immigration Appeals (BIA) affirming the denial of
Garcia-Pascual’s application for cancellation of removal. For the following reasons,
we dismiss the petition for lack of jurisdiction.
I. Background
Garcia-Pascual entered the United States without inspection near El Paso,
Texas, on February 20, 2005.
On March 10, 2015, the Department of Homeland Security (DHS) served
Garcia-Pascual with a Notice to Appear (NTA), charging him with removability
under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(A)(i). On November 3, 2016, Garcia-Pascual admitted the allegations
in the NTA, conceded removability, and designated Mexico as the country of
removal. On January 27, 2017, he filed an application for cancellation of removal
under Section 240A(b)(1) of the INA based on the hardship that his United States
citizen son, Saul, would face. See 8 U.S.C. § 1229b(b)(1). In the application, he
indicated that he was not married and that Saul would not accompany him to Mexico
if he were ordered removed.
On March 22, 2018, Garcia-Pascual submitted an addendum to his application
for cancellation of removal. The addendum provided that Garcia-Pascual had married
his longterm partner, Silva Vazquez-Cayetano (Vazquez), a native and citizen of
Mexico, on March 20, 2018. Vazquez had an 11-year-old son, Bryan. The addendum
claimed that both Garcia-Pascual’s stepson Bryan and son Saul were qualifying
relatives. Garcia-Pascual also submitted the following: (1) a copy of Saul’s and
Bryan’s birth certificates; (2) evidence that Saul and Bryan had no educational or
medical problems; (3) a letter from Garcia-Pascual’s wife indicating that Bryan
considers Garcia-Pascual his father, that the family is happy, and that the children are
good students; (4) a letter from Bryan demonstrating that Garcia-Pascual has a close
and loving relationship with his children and provides for them financially; and (5)
letters from the children’s school indicating that Bryan was excelling in school but
did not read or write in Spanish, that the children had excellent attendance, and that
Vazquez was involved with the school.
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On April 25, 2018, Garcia-Pascual appeared before an immigration judge (IJ)
and testified in support of his application for cancellation of removal. The only issue
at the hearing was whether Garcia-Pascual could demonstrate the requisite hardship.1
See 8 U.S.C. § 1229b(b)(1)(D) (providing that the alien must “establish[] that removal
would result in exceptional and extremely unusual hardship to the alien’s spouse,
parent, or child, who is a citizen of the United States or an alien lawfully admitted for
permanent residence”). Garcia-Pascual testified that although he had just married
Vazquez, they had been together for 11 years. He explained that his stepson Bryan
had no relationship with his biological father; Garcia-Pascual had assumed the role
of father to Bryan. Bryan was “do[ing] well” in the fifth grade. Add. at 6. According
to Garcia-Pascual, his biological son Saul was “do[ing] well in [pre]school.” Id.
Garcia-Pascual testified to having “a very close relationship with his children,” being
“involved in his children’s educational activities,” and “help[ing] out at school
events.” Id.
Garcia-Pascual explained that if he were removed to Mexico, Vazquez and the
children would remain in the United States. “He stated that it would be very difficult
on his children to be raised without a father.” Id. at 7. Garcia-Pascual had started his
own business as a contractor two years prior. By contrast, Vazquez had not worked
since 2011, when she worked cleaning office buildings. Garcia-Pascual “did not
believe that [Vazquez] would be able to financially support the children without his
financial assistance” if he were removed to Mexico. Id. He believed that his removal
to Mexico also “would negatively affect the children’s academics.” Id.
In her testimony before the IJ, Vazquez testified that she did not graduate from
high school in Mexico, was 16 years old when she came to the United States, and
never attended high school in the United States. She claimed to have last worked in
1
DHS informed the IJ that DHS had no concerns with Garcia-Pascual’s good
moral character or continuous physical presence. See 8 U.S.C. § 1229b(b)(1).
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2012 cleaning office buildings, earning $500 per week. Vazquez was taking classes
to learn English and taking GED classes. Vazquez reiterated that Bryan does not have
any relationship with his biological father and had not had any contact with him since
2006, when he was three-months-old. According to Vazquez, “Bryan [had] just
learned last month that [Garcia-Pascual] is not his biological father.” Id. She testified
that her relationship with Bryan’s father was “very difficult” and that he had
physically abused her during the marriage. Id. According to Vazquez, she left Bryan’s
father because the violence was affecting Bryan.
Vazquez reiterated that both Bryan and Saul are “excellent student[s].” Id. at
8. She explained that she and the children “would remain in the United States if
[Garcia-Pascual] returned to Mexico. She believed that it would be difficult for her
to support her children without her husband’s financial support.” Id. She believed that
Garcia-Pascual’s removal proceedings were affecting Bryan’s “relationship with his
friends at school” and that he was spending time alone. Id. She testified “that it would
be very difficult emotionally on the children if they were separated from their father.”
Id. Moving to Mexico with the children “would be very difficult for them
educationally,” Vazquez stated, because “there are not many educational
opportunities in the area of Mexico where they would live.” Id. Vazquez could not
live with her parents in Mexico because they are older and live in a “small home”
with her grandparents. Id.
The IJ found that “both [Garcia-Pascual and Vazquez] testified credibly.” Id.
The IJ then assessed whether Garcia-Pascual had proven his eligibility for
cancellation of removal under Section 240A(b)(1) of the INA. After finding that
Garcia-Pascual established his continuous physical presence, good moral character,
and lack of any disqualifying convictions, the IJ analyzed whether Garcia-Pascual
sustained his burden of proving an exceptionally and extremely unusual hardship. See
8 U.S.C. § 1229b(b)(1). The IJ concluded that “the hardships presented by [Garcia-
Pascual] are not substantially different from those that would normally be expected
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upon the separation of a parent from his children.” Id. at 10. In reaching this
conclusion, the IJ “considered the ages, health, and circumstances of [Garcia-
Pascual’s] children.” Id. The IJ noted that the children would remain in the United
States with Vazquez and that they “are doing well in school and are healthy.” Id. at
11. The IJ also “considered the emotional and financial hardship on [Garcia-
Pascual’s] children if [he] returned to Mexico.” Id.
The IJ observed that “separation from a family member . . . do[es] not
constitute extreme hardship.” Id. (alterations in original) (quoting Matter of Pilch, 21
I&N Dec. 627, 631 (BIA 1996)). This is because “[s]eparation from close family
members is a hardship that would normally be expected from the removal of any
respondent with spouses, parents, or children in the United States.” Id. For this
reason, the IJ explained, “[t]he Board has long[]held that the potential of family
separation alone is not sufficient to demonstrate the requisite hardship in the context
of suspension of deportation much less the higher standard applicable for cancellation
of removal applications.” Id. (citing Matter of Ige, 20 I&N Dec. 880, 885 (BIA
1994)). The IJ found no evidence indicating that “the emotional hardship his children
would experience is ‘substantially different from, or beyond, that which would
normally be expected from the deportation of an alien with close family [members]
here.’” Id. (quoting Matter of Monreal, 23 I&N Dec. 56, 65 (BIA 2001)). The IJ did
acknowledge the “unique” and “uncommon” situation presented in Garcia-Pascual’s
case of “Bryan just learn[ing] that [Garcia-Pascual] is not his biological father.”
Id. But the IJ “d[id] not find that the emotional hardship to [Garcia-Pascual’s]
children rises to the level of exceptional and extremely unusual.” Id.The IJ also “considered the financial and educational hardships on [Garcia-
Pascual’s] children if [he] returned to Mexico.” Id. The IJ acknowledged “that it
would be difficult for [Garcia-Pascual’s] wife to support her children and provide the
same lifestyle they currently enjoy.” Id. Nonetheless, “this type of financial hardship,”
the IJ reasoned, “is not unexpected when the principal family breadwinner is
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separated from his family.” Id. The IJ did acknowledge the “financial challenges”
Garcia-Pascual’s family would face by “losing [his] financial contributions” but noted
the Board’s prior holding “that the economic loss that a qualifying relative would
suffer due to a parent’s return to their native country is insufficient to establish
exceptional and extremely unusual hardship.” Id. at 11–12 (citing Matter of
Andazola, 23 I&N Dec. 319, 323 (BIA 2002)). As to the children’s education, they
“would continue attending the schools in Wichita that they currently attend. Thus,
their education would not be so severely impacted by their father’s return to Mexico
to create an exceptional and extremely unusual hardship.” Id. at 12.
“In sum,” the IJ explained, “the hardships presented by [Garcia-Pascual] are
not substantially different from, or beyond, that which would normally be expected
from the deportation of an alien who has resided for a long period of time and has
close family members in the United States.” Id. The IJ found that Garcia-Pascual
failed to “present any evidence to show that his children have any particular health
problems or that there are any other unusual factors that might make it an exceptional
and extremely unusual hardship for his children if he returns to Mexico.” Id. In
reaching this conclusion, the IJ “considered all of the hardships presented by [Garcia-
Pascual] individually and in the aggregate in determining that he has failed to carry
his burden of proof of establishing exceptional and extremely unusual hardship to his
qualifying relatives.” Id. Garcia-Pascual’s case failed to “rise to [the] high threshold
that Congress set with the ‘intent to substantially narrow the class of aliens who
would qualify for relief.’” Id. (quoting Matter of Recinas, 23 I&N Dec. 467, 470 (BIA
2002)). The IJ denied Garcia-Pascual’s application for cancellation of removal.2 But
the IJ did state that had Garcia-Pascual “establish[ed] the four statutory elements
require[d] for a grant of cancellation of removal, the Court would grant [Garcia-
Pascual’s] application in the exercise of discretion.” Id.2
The IJ did grant Garcia-Pascual “sixty (60) days of voluntary departure in the
exercise of discretion.” Id.-6-
Garcia-Pascual timely appealed the IJ’s decision to the Board. Garcia-Pascual
argued that the IJ erred in (1) discounting the hardship that his stepson Bryan would
face if Garcia-Pascual were removed to Mexico, and (2) finding that Garcia-Pascual
failed to demonstrate the requisite hardship under existing case law. The Board
affirmed, without opinion, the IJ’s decision.
The instant petition for review followed.
II. Discussion
In his petition, Garcia-Pascual argues that the IJ erred as a matter of law in
denying his application for cancellation of removal based on the IJ’s conclusion that
the harm Garcia-Pascual’s children will suffer upon his removal is not “exceptional
and extremely unusual.” Petitioner’s Br. at 7.
The government responds that this court should dismiss the petition because
it “lacks jurisdiction to review the agency’s discretionary determination that
. . . Garcia-Pascual failed to demonstrate that his qualifying relatives would suffer
exceptional and extremely unusual hardship and, therefore, he failed to demonstrate
eligibility for cancellation of removal.” Respondent’s Br. at 13. The government
notes that this court has jurisdiction to consider only “questions of law and
constitutional claims.” Id. It contends that Garcia-Pascual has styled his claims as
“legal” when they are actually “requests for the [c]ourt to reweigh the hardship
factors properly considered by the agency.” Id. As a result, the government maintains
that the claims “do not constitute colorable legal questions subject to the [c]ourt’s
jurisdiction.” Id.“When[, as here,] the B[oard] affirms without opinion, the IJ’s decision is the
final agency action for purposes of judicial review.” Abdelwase v. Gonzales, 496 F.3d
904, 906 (8th Cir. 2007). “We review constitutional claims and questions of law de
novo. We review factual determinations under the substantial evidence standard,
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reversing only if the evidence is so compelling that no reasonable factfinder could fail
to find in favor of the petitioner.” Gilbertson v. Garland, 7 F.4th 700, 704 (8th Cir.
2021) (cleaned up).
“Aliens in removal proceedings may, under certain enumerated circumstances,
be eligible for a discretionary form of relief called cancellation of removal.”
Hernandez v. Garland, 28 F.4th 917, 920 (8th Cir. 2022) (internal quotation marks
omitted). To qualify for cancellation of removal, an alien must prove the following:
“(1) continuous physical presence in the United States for at least 10 years; (2) good
moral character; (3) he has not been convicted of certain crimes; and (4) his ‘removal
would result in exceptional and extremely unusual hardship’ to a qualifying relative.”
Id. (quoting 8 U.S.C. § 1229b(b)(1)(D)).
“Congress has sharply circumscribed judicial review of the discretionary-relief
process.” Patel v. Garland, 142 S. Ct. 1614, 1619 (2022). “Section 1252(a)(2)(B)(i)
of the Immigration and Nationality Act states: ‘Notwithstanding any other provisions
of law . . . no court shall have jurisdiction to review any judgment regarding the
granting of [cancellation of removal] relief under section . . . 1229b.’” Solis v. Holder,
647 F.3d 831, 832 (8th Cir. 2011) (alterations in original). In § 1252(a)(2)(B)(i),
“‘judgment’ means any authoritative decision. Under this broad definition,
§ 1252(a)(2)(B)(i)’s prohibition encompasses any and all decisions relating to the
granting or denying of discretionary relief. Factual findings fall within this category
. . . so the courts lack jurisdiction to review them.” Patel, 142 S. Ct. at 1621 (cleaned
up). Specifically, “‘any’ means that the provision applies to judgments ‘“of whatever
kind”’ under § 1255, not just discretionary judgments or the last-in-time judgment.”
Id. at 1622 (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)). In addition,
“§ 1252(a)(2)(B)(i) encompasses not just ‘the granting of relief’ but also any
judgment relating to the granting of relief. That plainly includes factual findings.” Id.
(emphasis in original). Thus, “[f]ederal courts lack jurisdiction to review facts found
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as part of discretionary-relief proceedings under . . . the . . . provisions enumerated
in § 1252(a)(2)(B)(i).” Id. at 1627.
“Even so, this court has jurisdiction of ‘constitutional claims or questions of
law raised upon a petition for review.’” Solis, 647 F.3d at 832 (quoting 8 U.S.C.
§ 1252(a)(2)(D)). Further, the Supreme Court has made clear that we have jurisdiction
to review certain mixed questions of law and fact. See Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062 (2020). In Guerrero-Lasprilla, the Supreme Court held that
“subparagraph (C)—which bars review of ‘any final order of removal against an alien
who is removable by reason of having committed’ certain criminal offenses—[did
not] prohibit[] review of how a legal standard applies to undisputed facts.” Patel,
142 S. Ct. at 1623 (citing Guerrero-Lasprilla, 140 S. Ct. at 1067–69). The holding
turned on the Court’s determination that “such an application counts as a question of
law for purposes of subparagraph (D).” Id. (citing Guerrero-Lasprilla, 140 S. Ct. at
1067–69).
In summary, “Patel makes clear that the [Board’s] determination that a citizen
would face exceptional and extremely unusual hardship is an authoritative decision
which falls within the scope of § 1252(a)(2)(B)(i) and is beyond our review.”
Castillo-Gutierrez v. Garland, 43 F.4th 477, 481 (5th Cir. 2022) (per curiam).
Nevertheless, “a petitioner can raise a question of law under § 1252(a)(2)(D) in two
ways: (1) by advancing a statutory-construction argument, or (2) by disputing the
application of a legal standard to undisputed or established facts.” Galeano-Romero
v. Barr, 968 F.3d 1176, 1182 (10th Cir. 2020) (cleaned up). But we have cautioned
that “[p]etitions for review sometimes try to cloak challenges to discretionary
determinations in constitutional or legal garb.” Garcia-Ortiz v. Garland, 20 F.4th
1212, 1215 (8th Cir. 2021) (internal quotation marks omitted); see also Gonzalez-
Rivas v. Garland, 53 F.4th 1129, 1131 (8th Cir. 2022) (“To invoke our jurisdiction,
Gonzalez-Rivas frames his issues as constitutional or legal errors.”).
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“In evaluating whether a petition raises a constitutional claim or question of
law, we look to the ‘nature of the argument advanced in the petition.’” Mohamed v.
Garland, 44 F.4th 761, 771 (8th Cir. 2022) (quoting Sharif v. Barr, 965 F.3d 612, 619
(8th Cir. 2020)). For example, in Garcia-Torres v. Holder, the petitioner alleged that
“(1) the Agency failed to cognize the hardship caused by [p]etitioner’s son being
completely unable to see his mother if [p]etitioner were removed; and (2) the Agency
considered the other hardships presented only individually, rather than cumulatively.”
660 F.3d 333, 338 (8th Cir. 2011) (cleaned up). As to the second allegation, the
petitioner attempted to circumvent the jurisdictional bar by arguing that the Board
“did not make a mere mistake in balancing the evidence; rather, the Agency applied
an incorrect legal standard by failing to account for the cumulative effect of the
hardships presented.” Id. (internal quotation marks omitted). We held that we
“lack[ed] jurisdiction to review the [Board’s] hardship determination because, while
[p]etitioner attempt[ed] to present his issues as questions of law, the hardship
determination actually constitutes a discretionary decision barred from appellate
review.” Id.3
3
See also Salas-Caballero v. Lynch, 786 F.3d 1077, 1078 (8th Cir. 2015) (per
curiam) (holding that petitioner’s argument that the Board “committed an error of law
by improperly applying its prior decisions in analyzing whether his United States
citizen son would suffer exceptional and extremely unusual hardship if [the
petitioner] were removed” was actually a challenge to the Board’s discretionary
determination that the court lacked jurisdiction to review); Tejado v. Holder, 776 F.3d
965, 969 (8th Cir. 2015) (per curiam) (holding that the court lacked jurisdiction to
consider the petitioner’s arguments “(1) that the IJ did not consider his son’s
psychological condition during a previous separation, and (2) that the IJ erred in
categorizing the hardship that his family would face as ‘normal’ because of a
misapplication of [Board] precedent”); Hernandez-Garcia v. Holder, 765 F.3d 815,
815 (8th Cir. 2014) (holding the court “lack[ed] jurisdiction to consider” the
petitioner’s “argu[ment] that the [Board] committed an error of law when it ‘failed to
follow its own precedent’ in deciding the hardship issue”); Hamilton v. Holder, 680
F.3d 1024, 1027 (8th Cir. 2012) (rejecting petitioner’s “argu[ment] that the IJ and the
[Board] applied the wrong legal standard in concluding that [the petitioner] had failed
to show ‘extreme hardship’ by employing a ‘particular circumstances test’ instead of
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Here, Garcia-Pascual “attempts to raise a question of law under
§ 1252(a)(2)(D).” Galeano-Romero, 968 F.3d at 1182 (emphasis added). First,
Garcia-Pascual asserts that the IJ erred “by failing to conduct an aggregate,
cumulative analysis of the hardship factors.” Petitioner’s Br. at 7. Second, Garcia-
Pascual argues that the IJ erred in concluding that the emotional hardship that Bryan
experienced from recently learning that Garcia-Pascual was not his biological father
failed to meet the legal standard. Garcia-Pascual cites the IJ’s finding that “the
situation was ‘unique’” and contends that “unique” is “a synonym for ‘unusual.’” Id.
Garcia-Pascual asserts that in light of “the IJ’s explicit statement that he was denying
relief as a matter of law and would, otherwise, grant cancellation of removal as a
matter of discretion, th[is] [c]ourt has jurisdiction to review the decision.” Id.
With regard to Garcia-Pascual’s first argument, we have already rejected an
attempt to circumvent the jurisdictional bar by arguing that the Board “applied an
incorrect legal standard by failing to account for the cumulative effect of the
hardships presented.” Garcia-Torres, 660 F.3d at 338. Garcia-Pascual’s second
argument that the IJ legally erred in finding that the hardships that Bryan would suffer
were not exceptional and extremely unusual despite Bryan’s “unique” situation of
recently learning that Garcia-Pascual was not his father also fails. “Even after
Guerrero-Lasprilla, the [Board’s] discretionary conclusion that the hardship to the
children is not substantially beyond that typically caused by an alien’s removal ‘is
precisely the discretionary determination that Congress shielded from our review.’”
Gonzalez-Rivas, 53 F.4th at 1132 (quoting Rodriguez v. Barr, 952 F.3d 984, 990 (8th
Cir. 2020)). We conclude that Garcia-Pascual’s argument is actually an “argument
evaluating the totality of the circumstances” because the argument was “really a
challenge to the way in which the [Board] weighed the relevant factors” for which the
court lacked jurisdiction to review); Solis v. Holder, 647 F.3d 831, 833 (8th Cir.
2011) (holding that the petitioner’s argument “that the [Board] applied the incorrect
legal standard by failing to adequately consider certain factors that the [Board] has
considered relevant in other decisions” was actually a challenge to the Board’s
discretionary determination that the court lacked jurisdiction to review).
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. . . that the [IJ] erred in failing to afford what he believes is sufficient weight to
Bryan’s emotional hardship in rendering the hardship determination.” Respondent’s
Br. at 28. A petitioner’s argument “that the [Board] applied the incorrect legal
standard by failing to adequately consider certain factors” is actually a challenge to
the Board’s discretionary determination that we lack jurisdiction to review. Solis, 647
F.3d at 833.
III. Conclusion
Accordingly, we dismiss the petition for lack of jurisdiction.
ARNOLD, Circuit Judge, concurring.
I concur in the judgment because our precedents require it but write separately
to indicate why I think those precedents need further consideration.
The court identifies two arguments that Garcia-Pascual makes: that the agency
erred by evaluating the hardship considerations in isolation instead of cumulatively,
and by concluding that Garcia-Pascual had failed to show that his son would suffer
exceptional and extremely unusual hardship should Garcia-Pascual be removed to
Mexico. The first argument is a legal one: It raises a question about whether the
agency applied the governing legal standard in reaching its conclusion. But, as the
court notes, we held otherwise in Garcia-Torres, concluding that this argument
actually raised a factual issue and that the petitioner had simply "cloaked" his
"argument in constitutional or legal garb" to circumvent the jurisdictional bar. This
approach gives me some pause. It seems wrong to usher a litigant to a door he's not
looking for only to tell him that the door is closed. I would instead "look to the nature
of the argument advanced in the petition," as the court says in a different part of its
opinion, and the argument advanced there is a legal one. Petitioners are the masters
of their petitions.
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As for whether Garcia-Pascual has failed to show that his son would suffer
exceptional and extremely unusual hardship, I believe Guerrero-Lasprilla makes
clear that we have jurisdiction to review this mixed question of law and fact. Garcia-
Pascual maintains in a heading in his brief that "the agency erred as a matter of law
in concluding the undisputed facts did not meet the legal standard for 'exceptional and
extremely unusual hardship.'" That fits Guerrero-Lasprilla hand in glove. I agree with
the court, though, that our recent decision in Gonzalez-Rivas requires us to dismiss
the appeal of this issue for lack of jurisdiction. There we said that, even after
Guerrero-Lasprilla, "the BIA's discretionary conclusion that the hardship to the
children is not substantially beyond that typically caused by an alien's removal is
precisely the discretionary determination that Congress shielded from our review."
53 F.4th at 1132. I am skeptical of this conclusion because I don't think that the fact
that the relevant determination is a discretionary one provides an adequate basis for
holding that we have no jurisdiction to review it. The governing statute, in fact,
specifically allows us to consider constitutional questions and questions of law, even
when a decision is a discretionary one. See 8 U.S.C. § 1252(a)(2)(B), (D). And
Guerrero-Lasprilla clarified that questions of law include mixed questions of law and
fact.
In sum, though precedents require us to dismiss the petition for lack of
jurisdiction, I suggest those precedents deserve another look.
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