Villegas v. Barr ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 22, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
ALEJANDRO MORENO VILLEGAS,
Petitioner,
v. No. 19-9588
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and EID, Circuit Judges.
_________________________________
Petitioner Alejandro Moreno Villegas, a Mexican national, petitions for review
of a Board of Immigration Appeals (BIA) decision affirming the denial of his
application for cancellation of removal. Most of the petition challenges the BIA’s
discretionary hardship determination, which we lack jurisdiction to consider.
Accordingly, we dismiss the petition in part for lack of jurisdiction. To the extent the
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
petition asserts that Petitioner’s due-process rights were violated because the BIA
failed to properly evaluate the evidence, we deny the petition for review.
I
Petitioner entered the United States in 2000 and has remained here since. In 2017
the government issued him a notice to appear in removal proceedings, charging that he
was present in this country without having been lawfully admitted or paroled. See
8 U.S.C. § 1182(a)(6)(A)(i). Petitioner conceded the charge and applied for cancellation
of removal. Cancellation of removal is a form of discretionary relief that requires a
noncitizen to show, among other things, that his “removal would result in exceptional and
extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United
States.” 8 U.S.C. § 1229b(b)(1)(D).1
Petitioner predicated his application on the hardship facing his four children, all of
whom are U.S. citizens. He testified before an immigration judge (IJ) as follows: His
children were ages 15, 13, 9, and 5. His two eldest children, A.G. and J.G., attended a
preparatory academy and had seen a therapist. He had told the therapist that his eldest
son, A.G., was not working as hard at school, he would come home from school and
sleep, and he would not eat. He also saw changes in his daughter, J.G., who seemed
distracted. His third child, D.G., attended the same school and had “been acting up with
1
An applicant must also show he was physically present in the United States
for the ten years preceding his application, he was a person of good moral character
during that time, and he was not convicted of any disqualifying crimes. See 8 U.S.C.
§ 1229b(b)(1)(A)-(C). If the applicant makes this showing, he must persuade the
Attorney General to favorably exercise his discretion and grant relief. Petitioner
satisfied the first three statutory criteria.
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his mother.” Admin. R. at 180. Petitioner was very close to his children. He coached
their soccer teams. They had never been to Mexico and they primarily spoke English, not
Spanish. The children were insured through the state Medicaid program. He did not pay
for their schooling. A comparable school in Mexico would be “very expensive.” Id. at
182. He earns $3,500 to $3,600 per month working in construction, but a similar job in
Mexico pays only about $300 per month. His wife does not work, and he believed she
would be unable to afford their present standard of living if he were removed to Mexico.
Nevertheless, his family wanted to remain in the U.S. if he were removed. He did not
think his children would be “okay in Mexico,” id. at 191, because there is violence and
drug trafficking there, and he and his wife could not afford a comparable education for
their children.
Petitioner’s two eldest children also testified. A.G. said he had not been doing
well at school since his father was put in removal proceedings. The home environment
had changed and his dad was not as playful as he normally was. He did not want to move
to Mexico because it suffers from cartels and drug violence and offers an inferior
education system and lower wages. He feared that if his family stayed in the U.S., they
would need to move to a less costly home and he would need to quit his school dance
team to find work and help provide for his family, which would cause his grades to
suffer. He said he was depressed.
J.G. testified that she was doing well in school and did not want to relocate to
Mexico because she heard there are a lot of “bad people there.” Id. at 166. She also
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thought she would not have the same opportunities in Mexico, but she would want to
move there to be with her father.
Another witness was Carla Arroyo, the clinical director of the counseling center
where A.G. had seen a therapist. She did not assess A.G. herself, but she reviewed his
assessment, which diagnosed him with “major depressive episodes, single episode
madras.” Admin. R. at 133. The therapist’s notes indicated that A.G. was demonstrating
changes in behavior, including hopelessness, an increase in sleeping, and self-isolation.
His onset of symptoms coincided with his father’s arrest. The risk factors for a child his
age with depression include suicide and self-harm. A.G. viewed his family as “very
cohesive,” id. at 136, and he worried about how he would earn a living for them if his
father were to be removed, which would have an additional detrimental impact on his
mental health. A.G. also faced other risk factors because his father’s removal would
cause his mother to leave the household as well in order to find employment. Ms. Arroyo
acknowledged that the only times A.G. had been seen by the therapist were on two
occasions during the two weeks preceding the hearing.
Finally, the IJ heard testimony from Tyler Stockstill, who founded the youth
soccer club where Petitioner’s children played soccer. Mr. Stockstill confirmed that
Petitioner was an assistant coach for his three older children’s soccer teams. He also
testified that Petitioner volunteered to work on maintenance projects for the club and
helped build an indoor facility.
After considering this and other evidence, the IJ denied cancellation of removal.
He observed that under BIA precedent, Petitioner was obliged to show exceptional and
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extremely unusual hardship to a qualifying relative—hardship that was “substantially
beyond the ordinary hardship that would be expected when a close family member leaves
the United States.” Id. at 83. He noted that a lower standard of living for the qualifying
relative is a factor to be considered, but it generally is insufficient to satisfy the standard.
He examined the foregoing testimony and acknowledged Petitioner was very close to his
children. The IJ also noted the changes in A.G.’s behavior but observed that there was no
evidence he had engaged in any acts of self-harm. He determined that all of Petitioner’s
children would suffer economic and emotional harm from being separated from their
father and that A.G.—and perhaps all the children—would need therapy. Nonetheless,
the IJ concluded that the evidence did not show that any of the children had a serious
medical condition; although Ms. Arroyo testified that A.G. had moderate to severe
depression, she did not evaluate him and he had been seen only twice in the weeks before
the hearing. As for economic considerations, the IJ observed that there was no evidence
the mother could not work, nor was there evidence the children would be unable to
continue attending their free preparatory academy. The IJ concluded that Petitioner
failed to show his children would suffer exceptional and extremely unusual hardship
upon his removal.
The BIA affirmed. It noted that Petitioner’s children did not have any special
educational needs or serious health issues. While recognizing that A.G. had struggled
with his grades recently and had been seen by a therapist for depression, the BIA
determined that this evidence was insufficient to conclude that he would suffer
exceptional and extremely unusual hardship, particularly because he had been seen only
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twice—first a week before the hearing and then again only two days before the hearing.
The BIA expressly acknowledged Petitioner’s arguments, including that the IJ
overlooked that his children were gifted students, but it concluded that the IJ correctly
considered the evidence and found that the relevant hardship factors, considered
cumulatively, did not satisfy the hardship standard.
II
Petitioner now essentially asks us to reconsider the BIA’s discretionary hardship
decision. Indeed, throughout his brief Petitioner recites the evidence before the IJ and
asserts that it demonstrates that the hardship facing his children is substantially beyond
what would normally befall a qualifying relative. He therefore concludes that the BIA
erred “when it . . . determined that [he] had not demonstrated that his four U.S. citizen
children would suffer exceptional and extremely unusual hardship.” Pet’r Br. at 18.
Under 8 U.S.C. § 1252(a)(2)(B)(i), however, we lack jurisdiction to review “the
discretionary aspects of a decision concerning cancellation of removal,” including “the
determination of whether the petitioner’s removal . . . would result in exceptional and
extremely unusual hardship to a qualifying relative.” Arambula-Medina v. Holder,
572 F.3d 824, 828 (10th Cir. 2009) (internal quotation marks omitted). Petitioner seems
to suggest that we have jurisdiction to review this determination as a question of law
under 8 U.S.C. § 1252(a)(2)(D), but we disagree. “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)
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(quoting Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068-69 (2020) (brackets and
citation omitted)). Petitioner does not raise a statutory-construction argument
challenging the BIA’s interpretation of § 1229b. Nor does he raise a question of law
disputing the application of a legal standard to the facts of his case. Although he
contends his evidence satisfies the hardship standard, “[a] petition for review does not
raise a question of law by disputing the [BIA]’s appraisal of the degree of hardship likely
to his [qualifying relatives],” id. As we recently explained:
That the Board has announced a standard to aid its hardship
determination does not create jurisdiction for us to review the Board’s
application of that standard, provided that the Board acknowledges its
standard and exercises its discretion within the bounds of its precedents’
cabining of such discretion. Once the Board does that, the application of
that standard is discretionary—i.e., the determination of whether the
requisite hardship exists is discretionary because there is no algorithm for
determining when a hardship is exceptional and extremely unusual.
Id. at 1183 (brackets and internal quotation marks omitted).
Petitioner does not contest the standard applied by the BIA or argue that the BIA
exceeded the scope of its discretion. Instead, he contends the evidence, “taken in the
aggregate,” demonstrates his children will suffer exceptional and extremely unusual
hardship. Pet’r Br. at 7. This argument challenges the BIA’s appraisal of the hardship
facing his children, which is a discretionary determination we lack jurisdiction to review.
Apart from his broad discretionary challenge, Petitioner contends the BIA did not
consider the cumulative effect of the evidence of hardship facing his children. He also
contends the BIA disregarded Ms. Arroyo’s testimony, and failed to account for the
negative impact his removal would have on his children’s academic success, particularly
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because they are gifted students. Although he does not specify a jurisdictional basis to
review these contentions, he alludes to our jurisdiction under 8 U.S.C. § 1252(a)(2)(D) to
consider constitutional claims. See also Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir.
2009) (“[W]holesale failure to consider evidence implicates due process.” (internal
quotation marks omitted)).
Petitioner's arguments are unavailing. First, the BIA expressly stated that the IJ
“correctly examined the evidence, weighed the relevant factors, and correctly found those
factors, cumulatively, did not rise to the required level of hardship.” Admin. R. at 4
(emphasis added). Second, the IJ fully evaluated Ms. Arroyo’s testimony, and the BIA
cited it in considering A.G.’s depression. And third, the BIA noted Petitioner’s argument
that the IJ overlooked the negative impact that removal would have on his “academically
gifted” children, id. at 3, but it concluded that they had no special educational needs and,
even with the other evidence, Petitioner failed to show exceptional and extremely unusual
hardship. Thus, the BIA considered the evidence in the aggregate. To the extent
Petitioner merely disputes the adequacy of the BIA’s analysis, his argument “is just a
quarrel about the level of detail required in the BIA’s analysis, not a colorable due
process claim,” Alzainati, 568 F.3d at 851.
III
The petition for review is dismissed in part and denied in part.
Entered for the Court
Harris L Hartz
Circuit Judge
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