Pablo Salas-Caballero v. Loretta E. Lynch , 786 F.3d 1077 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-2556
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Pablo Salas-Caballero
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: February 9, 2015
Filed: May 20, 2015
[Published]
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
The Department of Homeland Security placed Pablo Salas-Caballero, a citizen
of Mexico, in removal proceedings. He conceded removability, applied for
cancellation of removal under 8 U.S.C. § 1229b(b)(1), and now petitions for review
of the Board of Immigration Appeals (“BIA”) decision upholding an Immigration
Judge’s (“IJ”) denial of that application. We dismiss the petition for lack of
jurisdiction to review the issue presented.
The Attorney General has discretion to grant cancellation of removal if four
statutory requirements are met, including “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.” 8 U.S.C. § 1229b(b)(1)(D).
Salas-Caballero claims that removing him to Mexico would result in exceptional and
extremely unusual hardship to his United States citizen son.
At the November 2012 removal hearing, Salas-Caballero testified that he
recently began living with his nine-year-old son and his son’s mother, who lacked
legal status but was not in removal proceedings. Salas-Caballero testified that his son
would not accompany Salas-Caballero if he were removed to Mexico. Rather, his son
would remain with his mother in the United States if Salas-Caballero were removed
and would accompany his mother if she were removed to Mexico in the future. The
IJ concluded that “none of the evidence or testimony relating to conditions in Mexico
would appear to be relevant” to the son’s hardship and denied cancellation of removal
because any hardship “amount[ed] to the normal hardships experienced by family
members when someone is deported.”
The BIA affirmed, rejecting Salas-Caballero’s contention that the IJ did not
adequately consider country conditions in Mexico and the possibility that his son
would move to Mexico:
The Immigration Judge properly considered the evidence of hardship to
[Salas-Caballero’s] child, including his health and age, the lack of
special educational needs, economic and employment issues, and family
separation. Even taking into account the country conditions in Mexico
. . . when all factors are considered in the aggregate, the respondent did
not establish the requisite hardship to his qualifying family member.
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The BIA therefore concluded that Salas-Caballero did not qualify for cancellation of
removal. Salas-Caballero petitions for judicial review, arguing the BIA “erred, as a
matter of law, by not considering the hardship [his] child would suffer if he
accompanied his father to Mexico.”
Congress has limited our jurisdiction to review the Attorney General’s denial
of discretionary cancellation of removal; we may only review “constitutional claims
or questions of law.” 8 U.S.C. § 1252(a)(2)(B)(i) and (D). Salas-Caballero argues
the BIA 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 Salas-Caballero were removed. In reviewing
cancellation-of-removal denials, we have repeatedly held that an alien’s contention
“that the BIA applied the incorrect legal standard by failing to adequately consider
certain factors that the BIA has considered relevant in other decisions” is beyond our
jurisdiction because the alien “really challenges the discretionary conclusion of the
BIA against him.” Solis v. Holder, 647 F.3d 831, 833 (8th Cir. 2011), cert. denied,
132 S. Ct. 1032 (2012); see Tejado v. Holder, 776 F.3d 965, 969 (8th Cir. 2015);
Hernandez-Garcia v. Holder, 765 F.3d 815, 816 (8th Cir. 2014) (“we lack jurisdiction
to review a discretionary BIA decision that petitioner’s removal would not ‘result in
exceptional and extremely unusual hardship,’ even when the petitioner seeking
review attempted to ‘create jurisdiction by cloaking an abuse of discretion argument
in constitutional or legal garb’”); Nunez-Portillo v. Holder, 763 F.3d 974, 976-77 (8th
Cir. 2014); Garcia-Torres v. Holder, 660 F.3d 333, 338 (8th Cir. 2011), cert. denied,
133 S. Ct. 108 (2012). Salas-Caballero’s contention falls squarely within the
controlling reach of these prior decisions. We therefore lack jurisdiction to review
his claim.
The petition for review is dismissed.
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