Rafael Fernandez-Villafan v. Merrick B. Garland

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0526n.06
Case No. 23-3223
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
RAFAEL FERNANDEZ-VILLAFAN,
)
FILED
Petitioner, Dec 14, 2023
)
KELLY L. STEPHENS, Clerk
)
v. )
)
MERRICK B. GARLAND, Attorney General, ) ON PETITION FOR REVIEW FROM
) THE BOARD OF IMMIGRATION
Respondent.
) APPEALS
) OPINION
)
Before: McKEAGUE, STRANCH, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Rafael Fernandez-Villafan, a native of Mexico residing
in the United States, applied for cancellation of removal, arguing that removal would cause
exceptional and extremely unusual hardship to his four children. After the Board of Immigration
Appeals denied cancellation based on a lack of hardship, Fernandez petitioned for review.1 We
DENY the petition. Fernandez presented evidence that, upon removal, his children might
experience a lower standard of living, suffer mental and emotional responses to his absence, and
receive a public-school (instead of private-school) education. But on this record, the combination
of harms claimed does not rise to the level of an exceptional and extremely unusual hardship.
1
We call the petitioner “Fernandez” because that’s how the immigration judge and lawyers
referred to him at the hearing.
No. 23-3223, Fernandez-Villafan v. Garland
I.
Fernandez is a Mexican citizen residing in Tennessee. The Department of Homeland
Security initiated removal proceedings because Fernandez was present in the United States without
being admitted or paroled. Fernandez applied for cancellation of removal based on hardship to his
United-States-citizen children. Under 8 U.S.C. § 1229b(b)(1), the Attorney General may cancel
an alien’s removal if the alien (A) has been continuously present in the United States for at least
ten years, (B) “has been a person of good moral character during such period,” (C) has no
disqualifying convictions, and (D) “establishes 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.”
On August 1, 2019, the immigration judge (IJ) considered the evidence for cancellation of
removal at a hearing. The government stipulated that Fernandez had no disqualifying convictions
and met the physical presence requirement for cancellation of removal, leaving hardship and good
character as the issues to be decided. To show exceptional and extremely unusual hardship to a
family member, Fernandez presented evidence on how removal would harm his four children.
Fernandez’s oldest son is Manuel (then age 15).2 Three witnesses (including Manuel
himself) testified about him. Fernandez testified that Manuel was bullied at public school,
experienced depression, and wanted to commit suicide. In response to questions by the IJ,
Fernandez acknowledged that no doctor had formally diagnosed Manuel with depression, and he
was not receiving medical treatment. After Manuel told his father that he was being bullied,
Fernandez helped Manuel enroll in private school. After the change in schools, Manuel’s
2
Fernandez testified that Manuel was 13 years old. But he was probably mistaken: Manuel
said he was 15, and his birth certificate dates from 2004.
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“depression went away,” he stopped thinking about suicide, and he got better grades. A.R. 191–
92. Fernandez said he was paying Latoya Smiley, his ex-wife and Manuel’s mother, $400 to $450
per month plus Manuel’s monthly tuition of $250. Manuel would visit his father every week, but
he primarily lived with Smiley and would stay with her if Fernandez were deported.
Smiley and Manuel also testified. Both corroborated Manuel’s poor grades, bullying, and
depression, and Fernandez’s involvement in finding a private school where Manuel got better
grades. Smiley also acknowledged that no doctor had diagnosed Manuel with depression. Smiley
testified that Fernandez paid Manuel’s tuition and her light and water bill, and she would be unable
to pay the tuition otherwise. At the time of the hearing, Smiley couldn’t work and needed to
schedule an operation. But she said she could do factory work when healthy. Smiley also testified
that Fernandez was “[Manuel’s] everything, his best friend,” and that Manuel would probably
become depressed if Fernandez were deported. Id. at 246, 252. Manuel similarly said losing his
dad would be “like taking away my best friend.” Id. at 283.
Fernandez has another child, Fernando (then age 8), by Olga Ginez Rojas.3 Fernando was
living with Rojas and her partner, although he visited Fernandez on the weekends. Fernando had
also struggled with bullying and depression in public school, but was attending private school with
no medical issues and good grades at the time of the hearing. Fernandez paid the $250 tuition
every other month. Fernandez also said he paid Rojas $350 to $400 per month.
Fernandez has two children, Elias and Alexa, by Sol Anjelica Guerrero Cazares, his
“current partner” and cohabitant. Id. at 195. Elias (then age 2) had an ear problem that would
require surgery within five years. In response to the IJ’s questions, Fernandez said that Elias was
3
The hearing transcript calls her “Olga Jimez Rojas” based on a phonetic transcription of
Spanish, but Fernando’s birth certificate indicates Olga’s last name is “Ginez Rojas.” See A.R.
498.
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covered by Medicare and there was no reason for him to think Medicare wouldn’t cover the
surgery. Fernandez testified that Alexa (then age 7) had “a little” depression. Id. at 196–97. But
he said, “We haven’t taken her to, to a doctor yet because we don’t know if, if she suffers from this
or not.” Id. at 198. Fernandez also said Alexa was “a little rebellious sometimes,” but just “[l]ike
any child.” Id. Fernandez didn’t plan to take Alexa and Elias to Mexico with him if he was
deported.
The government cross-examined Fernandez about his financial assets and liabilities.
Fernandez testified that he had “$30,000 or more” in savings, yard equipment worth at least
$10,000, a Nissan worth $7,000, another car with an outstanding loan balance, and a mobile home
with a mortgage. Id. at 212–15, 217. Upon being asked if he could sell some property and “make
[a] new life in Mexico,” Fernandez answered, “No,” and explained, “Like I said, I’ve spent half
my life here. I don’t -- I don’t know it there anymore, and I just see that -- on the news that it’s
very violent.” Id. at 221–22.
Regarding employment, Fernandez said he worked as a cook and operated a yard-work
business. In the past he has also worked in a bakery and cleaned for an automotive company and
manufacturing company. Fernandez didn’t think he could work in Mexico in landscaping or as a
cook because, “where I’m from, there wouldn’t be work in landscaping,” and “the type of
restaurants they have there isn’t the type of cooking that I’ve done.” Id. at 223. Fernandez also
testified about his siblings in Mexico, a brother who is retired from the army and sisters whose
“spouses provide for what they need.” Id. His current partner Guerrero Cazares used to work as
a “chef in a restaurant” and had no disabling medical conditions, although she stopped working
when she gave birth to Elias. Id. at 218.
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In his oral decision, the IJ summarized the testimony. The IJ found that “[t]he evidence
suggest[ed]” that Manuel and Fernando were “in good health.” Id. at 160. While there were “some
questions regarding whether or not Manuel suffered from depression,” none of the children had a
diagnosis of depression, and “[t]he other children, most notably Alexa, [were] in good health.” Id.
The IJ also noted that “all the children would remain here in the United States and would continue
to be eligible for current medical benefits.” Id. at 161.
Concerning economic hardship, the IJ found “insufficient evidence [that Fernandez] would
be unable to find work in Mexico.” Id. The IJ likewise “underst[ood] that the children’s mothers
suffer from no condition to keep them from working, or at least in the case of Ms. Smiley [who]
is currently unemployed, from attaining work in the future and supporting their families.” Id. The
IJ “considered how [Fernandez’s] removal from the United States may otherwise affect his family,”
but found those factors insufficient to establish exceptional and extremely unusual hardship. Id.
at 161–62.
The Board of Immigration Appeals upheld the denial of cancellation of removal based on
failure to show exceptional and extremely unusual hardship to a qualifying relative. The Board
thought the IJ “could reasonably infer” the continuing availability of healthcare benefits. Id. at 4.
The IJ was not required to accept the opinion of Fernandez or his counsel on medical issues. And
the IJ “considered all relevant factors in the aggregate” and “gave appropriate weight to the
hardship factors presented.” Id. at 5. Those factors included loss of financial support, including
in the context of private school; Fernandez’s “assets and liabilities, including $30,000 in savings”;
a history of undiagnosed depression for two of the children; the children’s “good health,” except
for a “non-debilitating ear condition” that might be surgically corrected; the availability of state
healthcare; and the mothers’ “current and anticipated future ability . . . to engage in gainful
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No. 23-3223, Fernandez-Villafan v. Garland
employment.” Id. “[U]pon reviewing and weighing the evidence on appeal de novo,” the Board
agreed that Fernandez had not made the necessary hardship showing and affirmed. Id. Fernandez
petitioned for review.
II.
Circuit courts have “jurisdiction to review a ‘final order of removal.’” Singh v. Rosen, 984
F.3d 1142, 1148 (6th Cir. 2021) (quoting 8 U.S.C. § 1252(a)(1)). But Congress has denied us
“jurisdiction to review certain decisions underlying that order.” Id.; see 8 U.S.C. § 1252(a)(2). In
this context of cancellation of removal, we cannot review challenges to the Board’s fact-finding.
Id. at 1149; see Patel v. Garland, 596 U.S. 328, 339 (2022). We also lack jurisdiction over the
discretionary decision to deny cancellation of removal despite an alien’s eligibility. Singh, 984
F.3d at 1149. But we can review the mixed question of fact and law of whether the facts show
exceptional and extremely unusual hardship. Id. at 1150; see also Hernandez v. Garland, 59 F.4th
762, 768–70 (6th Cir. 2023) (recognizing post-Patel that we have jurisdiction over the analogous
mixed question of good moral character). The Board denied cancellation on the basis of a lack of
hardship, so we review that finding.4
In Singh v. Rosen, we reserved the question of the proper standard of review. 984 F.3d at
1154. We have still not resolved that issue. See, e.g., Chiquirin-Delgado v. Garland, No. 22-3059,
2023 WL 3737505, at *2 (6th Cir. May 31, 2023); Guzman Herrera v. Garland, No. 22-3985, 2023
WL 3414447, at *3 (6th Cir. May 12, 2023). We again decline to decide the appropriate standard
of review here. Whatever deferential standard of review applies, Fernandez cannot establish
4
The IJ might have made a discretionary decision to deny cancellation of removal: “In
balancing the equities and factors in this case, the Court concludes that the respondent’s
Application should be denied.” A.R. 162. But the Board did not rely on its discretion when it
dismissed Fernandez’s appeal.
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exceptional and extremely unusual hardship. Since the Board issued a written decision that agreed
with the IJ’s reasoning, we review both opinions. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.
2009).
A.
Fernandez argues that his removal will result in medical hardship. We acknowledge that a
“serious” medical issue is not a prerequisite for a sufficient showing of hardship. See In re
Gonzalez Recinas, 23 I. & N. Dec. 467, 470 (BIA 2002) (en banc). But simply establishing a
health problem is not enough. We must ask whether the health problem means that removal will
cause exceptional and extremely unusual hardship. 8 U.S.C. § 1229b(b)(1)(D).
Elias has an ear condition that will require surgery. Fernandez claims that the Board and
the IJ “overlooked the issue” and “ignored” documents relating to his condition. Pet. Br. at 37–
38. But the IJ interpreted the evidence to suggest that surgery could fix the ear issue and that Elias
would remain covered by state-sponsored healthcare. Under those facts, Fernandez’s removal will
not affect Elias’s access to medical care, much less cause exceptional harm to him.
The IJ stated that “[t]he evidence suggests that the two older children, Manuel and
Fernando, are in good health,” and that “[t]he other children, most notably Alexa, [are] in good
health.” A.R. 160. He recognized “questions” about whether Manuel had depression but noted
there was “no medical diagnosis of depression in any of the children.” Id. We cannot review the
IJ’s findings of fact. Accepting the finding that Manuel, Fernando, and Alexa have generally good
health, we cannot conclude under any relevant standard of review that the children would face
exceptional and extremely unusual hardship if Fernandez is deported. It is obvious that a father’s
removal may worsen his children’s psychological state, especially when a child has struggled with
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depression in the past or must undergo surgery. But family separation and associated psychological
harm are not extremely unusual.
Fernandez also raises several procedural complaints related to these medical issues. First,
he objects that “both Manuel’s and Mr. Fernandez’s testimony,” as well as the statements of his
attorney, were dismissed. See Pet. Br. at 38–39 & n.3. But it is permissible to recognize that a
witness lacks the expertise to make medical diagnoses. See Guzman Herrera, 2023 WL 3414447,
at *3. The Board did not err in holding that an attorney’s “diagnoses and prognostications” about
mental and ear health lack evidentiary value, and that the IJ did not have to accept Fernandez’s lay
opinion about those issues either. See A.R. 4–5. Fernandez claims that the IJ and Board ignored
the medical documentation he submitted. But he does not argue that the documents show a
connection between removal and the loss of needed medical care.
Second, Fernandez argues that the IJ should have ordered further evaluation of Manuel and
Alexa. We have acknowledged that an IJ has a “duty to help pro se parties develop the record.”
Mendoza-Garcia v. Barr, 918 F.3d 498, 505 (6th Cir. 2019). But here Fernandez was represented
by counsel. Regardless, it would be an unwarranted extension of our precedent to require IJs to
order a psychological evaluation whenever a family member alleges depression or anxiety in
removal proceedings. The individual facing removal, not the IJ, bears the burden of establishing
hardship. Lopez-Mejia v. Garland, No. 21-3880, 2022 WL 1561353, at *2 (6th Cir. May 18, 2022);
8 U.S.C. § 1229b(b)(1)(D).
Nor did the IJ breach any duty to develop the record by not asking more questions about
“Manuel and Alexa’s thoughts and behaviors.” See Pet. Br. at 40. Three witnesses testified about
Manuel, including Manuel himself, and the IJ did ask clarifying questions about his situation. As
for Alexa, Fernandez testified that he did not know if she had depression and that her purported
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behavioral problems were “[l]ike any child.” A.R. 197–98. In neither case did the IJ err by not
soliciting additional testimony. And even if the IJ had erred, Fernandez fails to establish that any
omissions in the record prejudiced him. See Mendoza-Garcia, 918 F.3d at 508–09. So his
arguments on this front fail.
B.
The question of economic hardship centered on whether Fernandez, Smiley, and Guerrero
Cazares would be able to support their children. Fernandez claims the Board overlooked the fact
that Smiley needs future operations, received support from Fernandez, and cannot support herself.
Fernandez argues that Smiley would be unable to take care of Manuel even if she recovered her
health. Similarly, he stresses Guerrero Cazares’s lack of education, work experience, and language
skills; the cost of childcare; and the cost of living generally. But the IJ heard the witnesses testify
and “underst[ood] that the children’s mothers suffer from no condition to keep them from working,
or at least in the case of Ms. Smiley [who] is currently unemployed, from attaining work in the
future and supporting their families.” A.R. 161. This is an unreviewable factual finding.
Fernandez makes similar arguments about his inability to obtain work in Mexico. He
contends that the IJ should have noted and considered Mexico’s economic depression. Fernandez
cites his age, education, training, and unfamiliarity with Mexican tools and the metric system. But
the IJ found “insufficient evidence [that] he would be unable to find work in Mexico.” Id. at 161.
The IJ did not have to respond to each piece of evidence presented, and we cannot evaluate how
the IJ weighed the evidence. Nor can we fault the Board and the IJ for recognizing that Fernandez
had $30,000 in savings. And although Fernandez claims the IJ and Board did not “realize that they
are supposed to consider the economy and country condition in Mexico,” he points to no statement
by either that would establish their disregard of that fundamental point of law. See Pet. Br. at 47.
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Fernandez complains that he wasn’t asked about his personal experience and knowledge
of the Mexican economy. But Fernandez had not visited Mexico since 2000. He said of Mexico,
“I don’t know it there anymore, and I just see that -- on the news that it’s very violent.” A.R. 221–
22. Still, Fernandez did testify about the part of Mexico he came from and about how his siblings
supported themselves. The IJ’s failure to ask more questions was not error, and certainly not
prejudicial error.
Fernandez also objects that the Board and IJ did not discuss In re Gonzalez Recinas, 23 I.
& N. Dec. 467 (BIA 2002) (en banc). But Recinas dealt with a single mother whose “citizen
children [were] entirely dependent” on her because her ex-spouse was out of the picture. 23 I. &
N. Dec. at 471. By contrast, all of Fernandez’s children will keep living with their various mothers.
And the IJ thought each of those mothers could work, at least in the future. This case is different
from Recinas.
In all, the IJ had a valid basis for concluding that the expected economic hardship was not
exceptional and extremely unusual. Fernandez’s removal may result in a lower standard of living
for his children, but that is not enough by itself to establish exceptional hardship. Francisco-Diego
v. Garland, No. 21-3870, 2022 WL 1741657, at *3 (6th Cir. May 31, 2022).
C.
Fernandez argues that removal would limit his children’s “educational opportunities.” Pet.
Br. at 49–51. But removal often requires children to leave the United States for “countries with
worse schools.” See Velasquez-Perez v. Garland, 854 F. App’x 40, 41 (6th Cir. 2021). In Cano-
Morales v. Garland, this Court considered whether depriving children of special education services
rose to the level of exceptional and extremely unusual hardship. No. 21-3070, 2022 WL 304953,
at *3 (6th Cir. Feb. 2, 2022). But that argument failed because the petitioner could not show that
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“his children would be deprived of all schooling or of an opportunity to obtain any education.” Id.(quoting Singh, 984 F.3d at 1155) (internal quotation marks omitted).
This case is no different. If anything, Fernandez’s children could expect to receive a better
education than the children in Cano-Morales because they could still attend American schools.
Certainly, Manuel and Fernando might experience some difficulties, but they would still have
access to free public education.
Fernandez argues that the IJ and the Board insufficiently considered the loss-of-education
issue. But the IJ summarized testimony about why Manuel and Fernando attend private school,
showing that he understood the situation. The IJ said that he “considered” how removal “may
otherwise affect” Fernandez’s family, but found the hardship insufficient. A.R. 161–62. And the
Board found the IJ analyzed hardship correctly, including with respect to the private schooling
issue. Neither the IJ nor the Board overlooked this claimed educational hardship.
D.
Fernandez raises other arguments, but none of them have merit. He claims that the Board
and the IJ never mentioned that he has lived in the United States for over 23 years, or considered
that he cannot legally immigrate. But the IJ did observe that Fernandez “has been in the United
States for a long period of time, beginning in about the year 2000.” A.R. 160. And Fernandez did
not raise whether he could legally immigrate before the IJ, so he should not have expected the IJ
to consider it.
Fernandez objects that hardships should be considered “under the totality of
circumstances” and “in the aggregate.” Pet. Br. at 42, 52 (emphases omitted). But the Board
concluded that the IJ “considered all relevant factors in the aggregate” and agreed with the IJ’s
conclusion “upon reviewing and weighing the evidence on appeal.” A.R. 5. Upon considering the
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possible harm in this case—including loss of financial support, loss of a private school education,
and possible depression—we agree that Fernandez failed to show exceptional and extremely
unusual hardship, regardless of the standard of review.
Fernandez also raises a due process claim. He essentially reiterates his belief that the Board
and IJ misapplied the law and did not consider various facts. But we reject attempts to
“repackage[]” a merits disagreement with the Board as a constitutional argument. Araujo-Padilla
v. Garland, 854 F. App’x 646, 652 (6th Cir. 2021).
III.
Fernandez failed to establish exceptional and extremely unusual hardship to a family
member, so we cannot grant him cancellation of removal. The petition for review is DENIED.
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