Guerrero Trejo v. Garland ( 2021 )

Case: 20-60353 Document: 00515924542 Page: 1 Date Filed: 07/02/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 2, 2021
No. 20-60353 Lyle W. Cayce
Clerk
Jose Felipe Guerrero Trejo, also known as Jose Felipe
Guerrero,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A205 288 147
Before King, Dennis, and Ho, Circuit Judges.
James L. Dennis, Circuit Judge:
An immigration judge (“IJ”) found that Jose Felipe Guerrero Trejo
was a removable alien. Guerrero sought to have his removal cancelled, but
the IJ denied his application, determining that Guerrero could not be
considered for that discretionary relief because he had not shown his removal
would result in “exceptional and extremely unusual hardship” to his U.S.-
citizen children. The Board of Immigration Appeals (“BIA”) adopted and
affirmed the IJ’s assessment, and Guerrero now petitions this court for
review.
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We hold that we have jurisdiction to review the IJ and BIA’s
determination. Although 8 U.S.C. § 1252(a)(2)(B) deprives us of
jurisdiction to review the discretionary decision of whether to actually grant
cancellation of removal, recent Supreme Court precedent makes clear that
applying a legal standard to established facts in order to determine whether
an alien is eligible for discretionary relief is a question of law, not a
discretionary decision. Thus, we may review the IJ’s determination that the
events that would befall Guerrero’s children if he were removed would not
amount to “exceptional and extremely unusual hardship” as Congress
intended the phrase. Because we find no error in the IJ’s conclusion that they
would not, Guerrero’s petition for review is DENIED.
I. Background and Procedural History
Jose Felipe Guerrero Trejo is a native and citizen of Mexico. On April
2, 2012, immigration authorities served Guerrero 1 with a notice to appear
alleging that he was removable because he was present in the United States
without having been admitted. During his hearing, Guerrero conceded
removability, and the IJ accordingly sustained the charge and designated
Mexico as Guerrero’s country of removal. Guerrero then applied for
cancellation of removal under 8 U.S.C. § 1229b(b)(1), which grants the IJ and
BIA discretion to cancel an alien’s removal if certain statutory prerequisites
are met. 2
1
Though the Government refers to the Petitioner as “Trejo,” he notes in his
briefing that Guerrero is his “actual last name” and explains that in the Latin tradition, the
paternal and maternal last names are concatenated, with the paternal name appearing first.
We accordingly refer to the Petitioner as “Guerrero.”
2
Guerrero in the alternative requested withholding of removal or that he be
allowed voluntary departure. Guerrero appears to have promptly abandoned his pursuit of
withholding of removal, but the IJ granted his request for voluntary departure, and that
ruling is not separately challenged in Guerrero’s petition for review.
2
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The IJ held a hearing on Guerrero’s application. Guerrero and his
brother testified, both of whom the IJ found credible, and based on the
presented evidence, the IJ found the following facts. Guerrero entered the
United States in 2002. At the time of the IJ’s decision, Guerrero was thirty
years old and had not left the country since his initial entry. He was employed
as a cook and made approximately $2,200 to $3,000 each month.
Guerrero was legally married to a Guatemalan woman named Lourdes
Zamora who, like Guerrero, had no legal status in the United States. They
had three children together, but they were separated, and Guerrero did not
live with Zamora or the children. His eldest child, Natalia, was nine years
old, and the remaining two children that lived with Zamora were eight and
three years old, respectively. At the time of the decision, Guerrero was in a
relationship with another woman, Delia Fernanda Corea Lopez, and they had
two children together—a two-year-old and a four-month-old. Guerrero lived
with Corea, their children, and his brother.
Guerrero financially supported all five of his children, who are all
native-born United States citizens and have lived in the country their entire
lives. Corea was not working at the time of the hearing, but she had been
employed as a waitress up until the birth of her youngest child four months
before. Zamora had been unemployed for the preceding two years, and each
month Guerrero paid to her $300 in child support and $100 to supplement
the Medicaid health benefits of his children who lived with her. The eldest
child Natalia “has a learning disability associated with” Attention Deficit
Disorder (“ADD”), but she had begun “receiving medication” through
Medicaid “and [Guerrero] perceive[d] her to be somewhat normal now and
believe[d] that the medication [wa]s helping.”
The IJ then considered whether Guerrero was eligible for cancellation
of removal. The IJ began by stating that Guerrero was “required to establish
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[both] his statutory eligibility for [the] relief” and, because cancellation of
removal is “a discretionary form of relief, that the relief should be granted.”
To be considered for cancellation of removal under 8 U.S.C. § 1229b(b)(1),
the IJ continued, Guerrero had to show by a preponderance of the evidence
that he (A) had been physically present in the United States continuously for
at least ten years; (B) had been a person of good moral character during that
time; (C) was not disqualified because of his having committed any of the
offenses described in § 1229b(b)(1)(C); and (D) that his removal would result
in exceptional and extremely unusual hardship to an immediate relative who
is a U.S. citizen or lawful permanent resident. The IJ determined that
Guerrero had successfully demonstrated that the first three requirements
were satisfied—Guerrero had been physically present in the United States
for over sixteen years at the time of the IJ’s decision; he had steadily
supported his family, paid taxes, and generally respected the laws of the
United States during that time, indicating his good moral character; and he
had no disqualifying criminal history.
However, the IJ concluded that Guerrero had not established the final
prerequisite: that his U.S.-citizen children would suffer “exceptional and
extremely unusual hardship” if he were removed. Although the IJ
recognized “the seriousness . . . and emotional hardship associated with
being separated from minor children,” the IJ stated that only hardship
beyond what is typically experienced when a family member is removed could
be considered. Regarding Guerrero’s children’s health, the IJ found that
there was no evidence that Natalia’s ADD had caused “long-term academic
consequences”; that she seemed to be doing well on her medication, which
was paid for by Medicaid, not Guerrero; and that, if Guerrero were removed,
Natalia would continue to receive treatment. The other children were all in
good health, the IJ found, and would remain in the custody of their respective
mothers, who would provide them with care and homes. The children would
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continue their education in the United States, the IJ found. And while
Guerrero’s family relied upon him financially, the IJ continued, Guerrero was
not a single parent, and the children’s mothers were capable of working. The
IJ further found that Guerrero’s brother would likely continue to support
Guerrero’s younger children, and that Guerrero would be able to find
employment in Mexico and could “provide, in possibly diminished support,
to his children.” Emotionally, the IJ found, the children would experience
the same devastation that is normally associated with the loss of one parent
but would not require mental health services or counseling. The children
would be able to continue to communicate with and potentially visit Guerrero
in Mexico following his removal, the IJ stated. Thus, the IJ concluded that
in terms of financial, physical, and emotional health, Guerrero had failed to
demonstrate that his children “would suffer hardship above and beyond that
regularly faced by families who are separated.” And, because the IJ found
that any hardship the children would experience was not “exceptional and
extremely unusual,” the IJ concluded that Guerrero was “statutorily
ineligible to pursue cancellation of removal pursuant to” § 1229b(b)(1).
The BIA adopted and affirmed the IJ’s decision, and Guerrero timely
petitioned this court for review. While the petition was pending, the
Government filed a motion to dismiss it for want of jurisdiction, arguing that
“the determination of what constitutes ‘exceptional and extremely unusual
hardship’ is a discretionary determination that is outside the Court’s
jurisdiction for judicial review.”
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II. Jurisdiction
Congress has granted IJs and the BIA 3 discretion to “cancel removal
of, and adjust to the status of an alien lawfully admitted for permanent
residence, an alien who” meets certain conditions. 8 U.S.C. § 1229b(b)(1).
Specifically, an alien must first demonstrate that he or she “(A) has been
physically present in the United States for a continuous period of not less
than 10 years immediately preceding the date of such application; (B) has
been a person of good moral character during such period; [and] (C) has not
been convicted of” any of a list of statutorily enumerated offenses. Id. Lastly,
to be considered for cancellation of removal, an alien must “(D) 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.” If all these
requirements are satisfied, the IJ and BIA “may cancel” the alien’s removal
but are not obligated to do so; satisfying the statutory prerequisites merely
makes the alien eligible for the discretionary relief. See Mireles-Valdez v.
Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003) (“Even if an alien satisfies the
conditions to qualify for relief, the Attorney General retains discretion to
grant or deny the application.” (quoting Sad v. INS, 246 F.3d 811, 819 (6th
Cir. 2001))).
Pursuant to 8 U.S.C. § 1252(a)(1), this court generally has jurisdiction
to entertain petitions for review of “final orders of removal” and the
determinations that underlie them. But that does not mean that we may
3
Title 8 U.S.C. § 1229b(b)(1) states that “the Attorney General” may cancel an
alien’s removal when the statutory criteria are met. The Attorney General has delegated
this authority to the Executive Office of Immigration Review, which contains, inter alia, the
immigration courts that adjudicate removal proceedings in the first instance and the BIA,
which hears appeals from the decisions of IJs. See generally 8 C.F.R. § 1003.0.
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entertain challenges to every decision the IJ or BIA makes in a removal
proceeding. Section 1252(a)(2) specifies a range of issues arising from
removal proceedings that “no court shall have jurisdiction to review.”
Among these is § 1252(a)(2)(B)(i), which excludes from our jurisdiction
“[d]enials of discretionary relief,” including “any judgment regarding the
granting of relief under section . . . 1229(b),” the cancellation of removal
statute.
On first blush, § 1252(a)(2)(B)(i) might seem to deprive us of the
authority to review any decision related to cancellation of removal. But the
provision does not actually sweep so broadly. First, as stated, the
subparagraph under which § 1252(a)(2)(B)(i) appears is entitled “Denials of
discretionary relief.” See 8 U.S.C. § 1252(a)(2)(B). In keeping with that
title, courts have generally reasoned that, when § 1252(a)(2)(B)(i) states that
no court shall review “any judgment regarding the granting of relief” under
the cancellation of removal statute, it is not using “judgment” as a synonym
for a final order. Rather, “judgment” refers to the adjudicator’s independent
evaluation of whether to actually cancel the removal of a qualifying alien—
that is, the exercise of the adjudicator’s “discretionary authority to
determine who among the eligible persons should be granted discretionary
relief.” Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1142 (9th Cir. 2002);
accord, e.g., Singh v. Att’y Gen. U.S., 807 F.3d 547, 549 n.3 (3d Cir. 2015);
Mireles-Valdez, 349 F.3d at 216. Thus, our court has long held that
§ 1252(a)(2)(B)’s “ban on review of ‘judgment[s] regarding the granting of
relief’ precludes review only of discretionary decisions.” Mireles-Valdez, 349
F.3d at 216. And the Supreme Court has seemingly endorsed this view,
reviewing the BIA’s non-discretionary decisions on underlying factual and
legal questions pertaining to whether an alien is eligible to be considered for
cancellation of removal without so much as mentioning § 1252(a)(2)(B). See
Pereira v. Sessions, 138 S. Ct. 2105, 2110 (2018); see also Kucana v. Holder, 558
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U.S. 233, 247 (2010) (stating that the provision shields from review
“substantive decisions . . . made by the Executive in the immigration context
as a matter of grace”).
Second, even if § 1252(a)(2)(B)(i) could be interpreted to insulate all
aspects of the cancellation of removal determination from judicial review,
that interpretation would be at odds with the so-called “safe harbor” or
“limited review provision” contained in § 1252(a)(2)(D), which states,
“Nothing in subparagraph (B). . . shall be construed as precluding review of
constitutional claims or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accordance with this section.”
Congress enacted § 1252(a)(2)(D) in response to the Supreme Court’s
decision in I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001). See Guerrero-Lasprilla
v. Barr, 140 S. Ct. 1062, 1071 (2020). In St. Cyr, the Court held that a prior
version of § 1252(a)(2) would be constitutionally suspect if it were
interpreted to prohibit judicial review of all aspects of the various
immigration determinations it applied to, including specifically a petition for
habeas corpus. St. Cyr, 533 U.S. at 300 (quoting Heikkila v. Barber, 345 U.S.
229, 235 (1953)). The Court stated that the Constitution, at a minimum,
protected the writ of habeas corpus “as it existed in 1789,” which included a
right to a judicial remedy for “detentions based on errors of law, including
the erroneous application or interpretation of statutes.” Id. at 300–301. In a
footnote, the Court noted that Congress could amend the statute to provide
“an adequate substitute” for habeas review “through the courts of appeals,”
and Congress proceeded to do just that, specifying in § 1252(a)(2)(D) that
none of the limits on judicial review contained anywhere in the law prohibited
the raising of constitutional violations or other questions of law through a
petition for review. Guerrero-Lasprilla, 140 S. Ct. at 1071 (citing St. Cyr, 533
U.S. at 314, n. 38).
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All of this is to say “that our jurisdiction” to review challenges to a
cancellation of removal determination “turns on the type of issue that an
immigrant raises.” Singh v. Rosen, 984 F.3d 1142, 1148 (6th Cir. 2021).
“Sometimes, appellate courts are presented with a ‘purely legal’ issue (e.g.,
what do the words of the immigration statute mean?).” Id. We may resolve
a challenge to this sort of determination even if it occurs in the context of
cancellation of removal because, as a non-discretionary decision, it is not
barred by § 1252(a)(2)(B), see Mireles-Valdez, 349 F.3d at 216, and as a legal
determination, § 1252(a)(2)(D) would explicitly exclude it from
§ 1252(a)(2)(B)’s bar in any event, see Guerrero-Lasprilla, 140 S. Ct. at 1071
(citing St. Cyr, 533 U.S. at 314 n.38). “Other times, appellate courts are
presented with a ‘purely factual’ issue (e.g., how long has an immigrant lived
in this country?).” Singh, 984 F.3d at 1148. These, too, we may review when
they arise as part of a cancellation of removal decision; because findings of
fact are not discretionary “judgments,” they do not fall within
§ 1252(a)(2)(B)’s jurisdictional bar. 4 See Mireles-Valdez, 349 F.3d at 216;
Garcia–Melendez v. Ashcroft, 351 F.3d 657, 661 (5th Cir. 2003) (describing the
continuous physical presence requirement as “a factual determination which
is subject to appellate review”). Still other times, “appellate courts . . .
consider an issue that the law leaves to the discretion of an agency,” Singh,
984 F.3d at 1148, (e.g., did the adjudicator act irrationally when it decided not
to grant cancellation of removal to a qualifying alien?). This alone is the sort
of issue that § 1252(a)(2)(B) generally prohibits courts from reviewing in the
4
This stands in contrast to one of § 1252(a)(2)’s other provision, § 1252(a)(2)(C),
which also “forbid[s] appeals of factual determinations” made in the removal proceedings
of aliens who are found to have committed any of a list of enumerated criminal offenses.
Guerrero-Lasprilla, 140 S. Ct. at 1073. Unlike with § 1252(a)(2)(B), there is no indication
§ 1252(a)(2)(C) was intended to “preclude[] review only of discretionary decisions.”
Mireles-Valdez, 349 F.3d at 216.
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context of immigration, including expressly in the context of cancellation of
removal. Mireles-Valdez, 349 F.3d at 216.
With this background established, what remains is to classify the type
of challenge Guerrero raises to the denial of his application for cancellation
of removal. Our court has traditionally held that an IJ’s or the BIA’s
determination of whether an alien has demonstrated exceptional and
extremely unusual hardship is a discretionary decision that § 1252(a)(2)(B)
bars from judicial review. See, e.g., Sattani v. Holder, 749 F.3d 368, 372 (5th
Cir. 2014) (per curiam); Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007);
Rueda v. Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004) (per curiam). But recent
developments from the Supreme Court have rendered that conclusion
untenable.
In Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020), the
Supreme Court identified a fourth type of question appellate courts are faced
with—neither purely legal (as some have used the term), purely factual, nor
committed to the adjudicator’s discretionary choice. The Court considered
whether § 1252(a)(2)(D)’s proviso that none of the jurisdiction-stripping
provisions in the Immigration and Nationality Act prohibit the review of
“constitutional claims or questions of law” covered so-called “mixed
questions,” or the “the application of a legal standard to . . . established
facts.” Id. This is precisely how the BIA describes the eligibility-for-
cancellation-of-removal hardship inquiry. See, e.g., Matter of Gamero, 25 I. &
N. Dec. 164, 165 (BIA 2010) (“Further, upon de novo review of the
Immigration Judge’s application of the pertinent legal standards, we agree
that the respondent did not establish eligibility for cancellation of removal
because he failed to show that his removal would result in exceptional and
extremely unusual hardship to any of his qualifying relatives.”).
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The Guerrero-Lasprilla Court rejected the contention that
§ 1252(a)(2)(D) “refers only to ‘pure’ questions [of law] and necessarily
excludes the application of law to settled facts.” Id. at 1070. The ordinary
meaning of the statute’s language, the presumption that administrative
action is judicially reviewable, the explicit use of the term “question of law”
to refer to the application of law to facts elsewhere in the statute, and the fact
that § 1252(a)(2)(D) was enacted following St. Cyr for the express purpose
of establishing an adequate substitute for habeas review that included the
application of law to facts were all factors that weighed in favor of “mixed
questions” being reviewable, the Court concluded. Id. at 1068-72.
Moreover, holding otherwise would grant the BIA carte blanche to violate the
rights of aliens so long as it recited the correct legal standard; “the Board
would be free to apply [the standard] in a manner directly contrary to well-
established law.” Id. at 1073. Such a reading would be “difficult to reconcile
with the Provision’s basic purpose of providing an adequate substitute for
habeas review,” the Court concluded. Id.
Two of our sister circuits have since held that Guerrero-Lasprilla
effectively overruled their prior decisions holding that an IJ’s or the BIA’s
hardship determination is a matter of discretion that § 1252(a)(2)(B) shields
from review. 5 First, in a different context, the Eleventh Circuit relied in part
on Guerrero-Lasprilla in holding that there is no principled distinction
between the hardship determination and the other cancellation-of-removal
eligibility requirements. See Patel v. United States Att’y Gen., 971 F.3d 1258,
1278-79 (11th Cir. 2020) (en banc), cert. granted, No. 20-979, 2021 WL
2637834 (U.S. June 28, 2021). The court noted that considering the hardship
inquiry discretionary is inconsistent with previous statements from the
5
Our court has already implicitly followed suit in an unpublished decision. See
Avila-Baeza v. Barr, 827 F. App’x 414, 415 (5th Cir. 2020).
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Supreme Court that “[e]ligibility [for discretionary relief] is governed by
specific statutory standards which provide a right to a ruling on an applicant’s
eligibility.” Id. at 1278 (quoting Jay v. Boyd, 351 U.S. 345, 353 (1956)). The
court acknowledged that “statutory standards for eligibility [that] are less
specific . . . give[] an immigration judge more leeway in interpreting and
applying the law.” Id. But the court determined that Congress’s tasking the
agency with applying a vague or qualitative legal standard does not make a
decision discretionary. “[Q]ualitative standards such as ‘good moral
character’ or ‘exceptional and extremely unusual hardship’ are not in
themselves discretionary decisions. An immigration judge must find that the
alien meets such standards before she can grant relief,” the court reasoned.
Id. There is no reason to think that Congress intended for courts to be able
“to assess the evidence for the more objective eligibility requirements, such
as residency requirements, while being barred from weighing the evidence
for the qualitative requirements,” the court concluded. 6 Id. at 1279.
The Sixth Circuit similarly held that, following Guerrero-Lasprilla, it
is clear that whether an alien has demonstrated that sufficient hardship would
result from his or her removal is a “mixed question,” not a discretionary
decision. See Singh, 984 F.3d at 1150. The court first looked to the statutory
text, noting that Congress typically signals a grant of discretion either by
6
Although the Eleventh Circuit concluded that the hardship inquiry and similar
eligibility determination are non-discretionary after Guerrero-Lasprilla, the en banc court
concluded that § 1252(a)(2)(B) sweeps much wider than we and other courts have held,
shielding from review all determinations made by IJs and the BIA when adjudicating
applications for discretionary relief, regardless of whether they are discretionary, save for
those specifically carved out by § 1252(a)(2)(D)’s exception for questions of law. Patel, 971
F.3d at 1262; contra Mireles-Valdez, 349 F.3d at 216. The alien filed a petition for certiorari,
and, shortly before the filing of this opinion, the Supreme Court granted it, agreeing to
determine whether § 1252(a)(2)(B) applies to non-discretionary predicate determinations
of eligibility. See Patel v. Garland, No. 20-979, 2021 WL 2637834 (U.S. June 28, 2021).
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saying the adjudicator “may” take an action, explicitly stating that an
adjudicator has discretion, or stating that the adjudicator can undertake an
action if the adjudicator finds that it is warranted. Id. at 1150-51 (citing 8
U.S.C. §§ 1158(b)(2)(A)(v), 1255(j)(2), 1231(b)(2)(C); 17 U.S.C. § 505; 18
U.S.C. § 3582(c)(1)(A); and 42 U.S.C. § 1988(b)). The cancellation-of-
removal statute states that immigration authorities “may” cancel removal if
the various prerequisites—including the hardship showing—are met, the
court reasoned, not that the adjudicator “may” decide whether hardship
exists. Id. at 1151.
Nothing in this text suggests that the Board . . . has discretion
to decide whether hardship exists. To be sure, the statute does
use the verb “may.” But one must distinguish the Board’s
final discretionary decision whether to grant cancellation of
removal . . . from its earlier eligibility decision whether the
immigrant has shown hardship . . . . The statute’s use of the
verb “may” makes the final decision discretionary, so the
Board may deny relief even if an immigrant proves all four
eligibility factors. But the statute does not use the word “may”
when delineating the eligibility requirements. It does not say,
for example, that the Attorney General “may” find the
required hardship. Nor does it say that this hardship finding is
in the “Attorney General’s sole discretion.” Cf. 8 U.S.C.
§ 1229b(b)(2)(D). Simply put, the plain text does not leave the
hardship decision (as compared to the final cancellation-of-
removal decision) to agency “discretion.”
Id. (some internal citations omitted). The Sixth Circuit then noted that the
BIA’s own precedents treat the hardship determination as a legal one,
applying de novo review and stating that a hardship determination involves
the “application of the pertinent legal standards” to the facts found by the
immigration judge. Id. (quoting Matter of Z-Z-O-, 26 I. & N. Dec. 586, 591
(B.I.A. 2015) and Gamero, 25 I. & N. Dec. at 165); see also In Re Monreal-
Aguinaga, 23 I. & N. Dec. 56, 58 (BIA 2001) (applying Chevron, U.S.A., Inc.
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v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), to
interpret the statute and identify the appropriate legal standard).
The Sixth Circuit next considered the structure of the statute,
following similar reasoning to the Eleventh Circuit’s. Id. No one would
contest that the other eligibility qualifications, including an alien’s being
physically present in the country for ten years and not being convicted of a
disqualifying crime, were matters committed to the agency’s discretion, the
court stated. Id. “Why should the ‘hardship’ requirement be different?” Id.The statute also uses explicit language elsewhere suggesting that a different
hardship determination is a matter of discretion, the court pointed out, and
the absence of such language in § 1229b(b)(1)(D) confirms that the eligibility-
for-cancellation-of-removal hardship determination is not discretionary. Id.
at 1152 (quoting 8 U.S.C. § 1182(i) (stating that the Attorney General may
waive inadmissibility “if it is established to the satisfaction of the Attorney
General that the refusal of admission to the United States of such immigrant
alien would result in extreme hardship” to the immigrant or certain relatives
(emphasis in Singh))).
Last, the Sixth Circuit noted the history of the cancellation-of-removal
statute. Prior to 1996, “cancellation of removal” was called “suspension of
deportation,” the court stated, and the earlier statute permitted the Attorney
General to suspend an immigrant’s deportation if, inter alia, the immigrant
was “a person whose deportation would, in the opinion of the Attorney General,
result in extreme hardship to the” immigrant or relatives. Id. (quoting 8
U.S.C. § 1254(a)(1) (1994) (emphasis in Singh)). The prior text
distinguished the hardship factor from the other eligibility requirements,
committing it to the discretion of the Attorney General. Id. But Congress
removed the “in the opinion of the Attorney General” language when it
amended the statute in 1996, indicating that the decision was no longer
discretionary, the court continued. Id. at 1152-53 (citing Illegal Immigration
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Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110
Stat. 3009-546, 3009-594 (1996)). That courts continued to treat the
determination as discretionary may have just been the product of inertia, the
court posited. Id. at 1153. “In sum, the statutory text, structure, and history
convince us that the Board’s ultimate hardship conclusion is the type of
mixed question that we have jurisdiction to review after Guerrero-Lasprilla,”
the court concluded. Id.When faced with the same question, two of our other sister circuits
have disagreed that a cancellation-of-removal hardship determination is a
non-discretionary mixed question after Guerrero-Lasprilla. The Third
Circuit simply stated without elaboration that “a disagreement about
weighing hardship factors is a discretionary judgment call, not a legal
question.” Hernandez-Morales v. Att’y Gen. United States, 977 F.3d 247, 249
(3d Cir. 2020). But in Galeano-Romero v. Barr, 968 F.3d 1176, 1183 (10th Cir.
2020), the Tenth Circuit provided several reasons as to why it believed “such
a challenge does not raise a § 1252(a)(2)(D) ‘question[ ] of law.’”
“With respect to our colleagues on the Third and Tenth Circuits,”
Singh, 984 F.3d at 1142, the Sixth and Eleventh Circuits have the better
analysis, and the reasons offered by the Galeano-Romero court do not hold up
to scrutiny. First, the court stated that interpreting § 1252(a)(2)(D) to
permit review of a hardship determination would render § 1252(a)(2)(B)
“superfluous, a nullity.” Galeano-Romero, 968 F.3d at 1183. But permitting
review of an eligibility-for-cancellation-of-removal hardship determination
does nothing to displace § 1252(a)(2)(B) from its proper sphere—preventing
courts from second guessing an exercise of the agency’s “discretionary
authority to determine who among the eligible persons should be granted
discretionary relief.” Montero-Martinez, 277 F.3d at 1142; accord Mireles-
Valdez, 349 F.3d at 216. Section 1252(a)(2)(B) would continue to prohibit
judicial review of the IJ or BIA’s decision on whether to actually grant
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cancellation of removal to an alien who has met the statutory prerequisites,
so it is hardly superfluous. Mireles-Valdez, 349 F.3d at 215 (citing Sad, 246
F.3d at 819).
Next, the Tenth Circuit appeared to argue that the hardship
determination should be singled out from among the other cancellation
qualifications and treated as a discretionary decision because “exceptional
and extremely unusual hardship” is a more vague or subjective standard. See
Galeano-Romero, 968 F.3d at 1183 (“There is no algorithm for determining
when a hardship is ‘exceptional and extremely unusual.’” (quoting Morales
Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir. 2003))). But, as the Sixth
Circuit pointed out in Singh, “Congress commonly uses similar phrases” in
contexts where it is clear judicial review is expected. 984 F.3d at 1152. “The
bankruptcy laws, for example, prohibit a debtor from obtaining a discharge of
certain student-loan debts unless the debts impose an ‘undue hardship’ on
the debtor.” Id. (quoting 11 U.S.C. § 523(a)(8)). Courts have not found the
question of whether “undue hardship” exists to be so subjective an inquiry
that no standard exists, but rather have explicitly treated the question as a
“mixed question” subject to de novo review—the exact sort of issue Guerrero-
Lasprilla contemplated. See id. (citing Long v. Educ. Credit Mgmt. Corp., 322
F.3d 549, 553 (8th Cir. 2003) (collecting cases)). Indeed, in Guerrero-
Lasprilla itself, the Supreme Court held that courts may review the BIA’s
application of the “due diligence” standard, which “is no less subjective than
the application of the hardship standard” at issue here. Id. at 1153. The same
could likely be said for “good faith,” which we have likewise held is a
nondiscretionary application of a legal standard to facts in the context of
determining whether an alien is eligible for discretionary relief. Alvarado de
Rodriguez v. Holder, 585 F.3d 227, 234 (5th Cir. 2009). Moreover, a very well-
established legal framework exists for courts to evaluate an agency’s
interpretation and application of a vague and ambiguous statute, and the BIA
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has explicitly cited this framework in reference to the eligibility-for-
cancellation-of-removal hardship determination. See Monreal-Aguinaga, 23
I. & N. Dec. at 58 (citing Chevron, 467 U.S. at 842–43). Courts are thus
amply equipped to determine whether the BIA’s interpretation and
application of the “exceptional and extremely unusual hardship” standard
falls within the bounds that Congress intended.
Lastly, the Galeano-Romero Court noted that “Guerrero-Lasprilla
concerned § 1252(a)(2)(C),” which prohibits review of removals based on an
alien’s commission of certain crimes, “—not § 1252(a)(2)(B),” which
prohibits review of the agency’s discretionary decisions. Galeano-Romero,
968 F.3d at 1184 n.9. But this is a distinction without a difference. The
Supreme Court in Guerrero-Lasprilla was interpreting the term “question of
law” in § 1252(a)(2)(D), a provision that, by its plain text, limits the reach of
both “subparagraph (B) [and] (C).” See § 1252(a)(2)(D) (“Nothing in
subparagraph (B) or (C), or in any other provision of this chapter (other than
this section) which limits or eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions of law raised upon a
petition for review filed with an appropriate court of appeals in accordance
with this section.” (emphasis added)). Thus, we are somewhat puzzled by
the Galeano-Romero Court’s statement that “[i]n [Guerrero-Lasprilla], the
Court had no reason to address the particular dynamic involved here—the
interaction between one subsection that prevents review over certain Board
decisions and another subsection that allows for judicial review over
questions of law or constitutional issues.” Galeano-Romero, 968 F.3d at 1184
n.9. This is exactly the dynamic Guerrero-Lasprilla addressed: the interaction
of the prohibition in § 1252(a)(2)(C) with § 1252(a)(2)(D)’s allowance for
judicial review over questions of law. There is no principled reason why its
holding does not apply with equal force to the interaction of the prohibition
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in § 1252(a)(2)(B) with § 1252(a)(2)(D)’s allowance for judicial review over
questions of law.
To sum up, when the IJ and BIA consider an application for
cancellation of removal, they are faced with several distinct questions. First,
they must make a number of factual findings, including how long the alien
has been physically present in the country, how the alien behaved during that
time, whether the alien was previously convicted of any crimes, and what
would occur to the alien’s U.S.-citizen or legal-permanent-resident family
members if the alien were removed. Section 1252(a)(2)(B) does not prevent
us from reviewing these factual findings to determine whether they are
supported by substantial evidence in the record because factual findings are
not discretionary. See Mireles-Valdez, 349 F.3d at 216; Garcia–Melendez, 351
F.3d at 661. Next, the adjudicator applies the various legal standards
contained in 8 U.S.C. § 1229b(b)(1)(A) through (D) to those established
facts to determine whether the alien is eligible to be considered for
cancellation of removal. The adjudicator decides whether the previously
found period of physical presence was ten years or more, whether the
previously found behavior the alien engaged in during that period qualifies as
good moral character as Congress intended the phrase, whether any
previously found criminal convictions are disqualifying, and whether the
previously found events that would occur to the alien’s relatives if the alien
were removed amount to exceptional and extremely unusual hardship as
Congress intended the phrase. Under Guerrero-Lasprilla, we may review
these determinations, too; determining whether an alien is legally eligible for
cancellation of removal is not discretionary, but rather “the application of a
legal standard to . . . established facts.” Guerrero-Lasprilla, 140 S. Ct. at 1067;
accord Jay v. Boyd, 351 U.S. at 353 (“Eligibility [for discretionary relief] is
governed by specific statutory standards which provide a right to a ruling on
an applicant’s eligibility.”); Alvarado de Rodriguez, 585 F.3d at 234 (“[T]he
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predicate legal question of whether the IJ properly applied the law to the facts
in determining the alien’s eligibility for discretionary relief is a question of
law properly raised in a petition for review.” (citation and inner quotes
omitted)). Put another way, a decision that an alien has not met any of the
eligibility criteria is a determination that the IJ and BIA lack any discretion to
cancel the alien’s removal. Cf. Melendez v. McAleenan, 928 F.3d 425, 426–27
(5th Cir.) (“We hold, then, that the denial of Melendez’s adjustment
application was a nondiscretionary decision based on the finding he was
statutorily ineligible, making Section 1252(a)(2)(B)(i)’s jurisdictional bar
inapplicable.”), cert. denied, 140 S. Ct. 561 (2019). Only after the adjudicator
has determined that the alien may be legally considered for cancellation of
removal does the adjudicator’s discretion enter the picture, when he or she
is called upon to decide whether to actually grant cancellation to a qualifying
alien. Singh, 984 F.3d at 1151; Mireles-Valdez, 349 F.3d at 215; Montero-
Martinez, 277 F.3d at 1142. This is the decision that is shielded from judicial
review by § 1252(a)(2)(B)(i), for it is a “substantive decision[] . . . made by
the Executive in the immigration context as a matter of grace.” Kucana, 558
U.S. at 247.
Guerrero does not challenge the IJ or BIA’s decision not to grant him
cancellation of removal, but rather their determination that he did not legally
qualify to be considered for cancellation of removal. He argues that the IJ erred
in its assessment of the severity of Natalia’s disability and by determining
that his children’s mothers were capable of working. These are challenges to
the IJ’s initial factual determinations. He also states that “the viability of the
family structure depends on the parents working together as a team even if
they are not residing at the same address,” that his case is similar to a prior
case in which the BIA found an applicant eligible for cancellation of removal,
and that “[a] proper consideration of the totality of the circumstances leads
one to conclude that the children in this case will suffer exceptional and
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extremely hardship if [he] is [removed].” This suggests that he disagrees
with the IJ’s determination that the events that would befall his children do
not meet the legal standard for cancellation eligibility. Neither of these
challenges implicates the IJ or BIA’s discretionary decision to grant or deny
cancellation of removal to a qualifying alien, and thus § 1252(a)(2)(B) is no
bar to our jurisdiction. See Alvarado de Rodriguez, 585 F.3d at 234.
III. Standard of Review
We have authority to review both the IJ’s and BIA’s decisions when
the IJ’s decision influenced the BIA’s, including where, as here, the BIA
adopted the IJ’s findings and conclusions. Mikhael v. I.N.S., 115 F.3d 299,
302 (5th Cir. 1997). “We review the factual findings of the [IJ and] BIA under
the substantial evidence standard, reversing only when the evidence compels
a contrary result.” Alvarado de Rodriguez, 585 F.3d at 233 (citing Nakimbugwe
v. Gonzales, 475 F.3d 281, 283 (5th Cir. 2007)). We review the IJ and BIA’s
legal conclusions de novo, subject to Chevron deference when appropriate.
Calvillo Garcia v. Sessions, 870 F.3d 341, 344 (5th Cir. 2017).
IV. The Merits
As stated above, Guerrero raises several challenges to the IJ and BIA’s
factual findings and legal conclusions.7
First, he argues that the diagnosis of his oldest child, Natalia, was
ongoing at the time of the decision and that the extent of her disability was
not completely evident. Guerrero appears to contend that the IJ and BIA
7
The Government raises no counterarguments on the merits, contending only that
this court lacks jurisdiction to consider the matter. Nonetheless, it is Guerrero’s burden to
show the BIA erred, see Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (citing
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006)), so the Government’s lack of
counterargument is not dispositive.
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were mistaken when they found that Natalia’s mental health issues had not
and would not cause long-term academic consequences, that she was doing
well on her medication, and that she would continue to receive sufficient
treatment through Medicaid if Guerrero were removed.
Guerrero testified that Natalia had been on medication for five to six
months; that Medicaid paid for the medication; and that, although “she is a
little bit distracted,” he “see[s] her as normal” and “believe[s] that the
treatment has helped her a little bit.” Guerrero argues that he is neither an
educator nor a physician, and so his observation that Natalia appears to be
normal was of limited medical reliability. He thus states that “[t]here is
nothing in the record” to support the IJ’s finding that Natalia’s disorder will
not prevent her from achieving an education. But this misses the point. The
burden was on Guerrero to establish his eligibility for cancellation of removal,
Monteon-Camargo v. Barr, 918 F.3d 423, 428 (5th Cir. 2019), and thus he was
required to introduce evidence that Natalia’s disorder would cause her
exceptional and extremely unusual hardship if he were removed. That there
is no evidence compelling a finding that Natalia’s disorder would prevent her
from achieving an education in his absence is sufficient to sustain the IJ and
BIA’s finding. See Morales v. Sessions, 860 F.3d 812, 818 (5th Cir. 2017).
Guerrero further argues that Natalia would have a difficult time
adjusting to foreign language instruction and would not be able to receive
Government assistance for her medical treatment in Mexico, but as Guerrero
himself points out, he testified that his children would not be able to move to
Mexico with him if he were removed due to the lack of accommodations. The
IJ found that Natalia and Guerrero’s other children will remain in the care
and custody of their respective mothers and continue their education in the
United States if Guerrero is removed, so the difficulties Natalia would
allegedly experience if she were forced to move to Mexico are not relevant
here. Guerrero additionally asserts that his role in Natalia’s life has been
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significant, suggesting that the IJ and BIA erred by not finding that Natalia
would suffer additional hardship beyond what was identified, but he provides
no specifics and points to no evidence in the record indicating that this is case.
Guerrero also argues that the IJ and BIA erred by determining that the
children’s respective mothers could support the children because they are
not legally authorized to work outside the home. But Guerrero testified that
both women had worked in the past—one as recently as four months prior to
the hearing. Guerrero has not demonstrated that “the [record] evidence
both supports and compels a contrary result” to the IJ’s factual findings, as
is required for reversal under the substantial evidence standard. Id.Guerrero also challenges the IJ and BIA’s legal conclusion that what
would occur to his U.S.-citizen children would not amount to “exceptional
and extremely unusual hardship” within the meaning of 8 U.S.C.
§ 1229b(b)(1)(D). In In Re Monreal-Aguinaga, the BIA announced its current
interpretation of the statute, stating that an alien must demonstrate a “truly
exceptional” situation in which a qualifying relative would suffer
consequences “‘substantially’ beyond the ordinary hardship that would be
expected when a close family member leaves this country.” 23 I. & N. Dec.
at 62 (citing H.R. Conf. Rep. No. 104-828). As this court has noted in an
unpublished decision, every court to have considered the question thus far
has concluded that this is a reasonable interpretation of 8 U.S.C.
§ 1229b(b)(1)(D) that is entitled to Chevron deference. Avila-Baeza, 827 F.
App’x at 416 (citing Ocampo-Guaderrama v. Holder, 501 F. App’x 795, 798-
99 (10th Cir. 2012); Pareja v. Att’y Gen., 615 F.3d 180, 190-95 (3d Cir. 2010);
Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006-07 (9th Cir. 2003); and
Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1333-34 (11th Cir. 2003)).
Guerrero raises no arguments as to why this is not so.
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Instead, Guerrero argues that his case is similar to In re Recinas, 23
I&N Dec. 467, 471 (BIA 2002), in which the BIA concluded that a single
mother who raised six children without any ongoing support from their father
had established that her qualifying children and other relatives would
experience exceptional and extremely unusual hardship if she were removed.
But Recinas is distinguishable in a number of ways. In Recinas, the BIA
“emphasize[d] that the respondent [wa]s a single parent who is solely
responsible for the care of six children,” who would have to move to Mexico
with her, where they had “no family to return to.” Id. The BIA concluded
that these “critical factors . . . distinguish[ed] her case from many other
cancellation of removal claims.” Id. In contrast, Guerrero’s children’s
mothers care for them, his brother lives with the youngest two, the children
will not move to Mexico with Guerrero, and Guerrero has family in Mexico
in any event. Guerrero has not shown that the events that the agency found
would befall his U.S.-citizen children if he were removed amount to suffering
substantially beyond the hardship usually associated with a parent’s removal,
see In Re Monreal-Aguinaga, 23 I. & N. Dec. at 62, and he thus has not shown
that the IJ or BIA erred in applying the pertinent legal standard.
V. Conclusion
For the foregoing reasons, we hold that we have jurisdiction to review
Guerrero’s challenge to the IJ and BIA’s decision that he is not eligible for
cancellation of removal. The Government’s motion to dismiss is therefore
DENIED. However, Guerrero has not demonstrated an error of fact or law
in the agency’s decision. Accordingly, his petition for review is DENIED.
23