Cesar Martinez-Baez v. Monty Wilkinson ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1078
CESAR MARTINEZ-BAEZ,
Petitioner,
v.
MONTY WILKINSON,
Acting Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A200-778-427
____________________
ARGUED SEPTEMBER 15, 2020 — DECIDED FEBRUARY 1, 2021
____________________
Before FLAUM, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Cesar Martinez-Baez has been
fighting to remain in the United States ever since April 5, 2011,
when he first received notice of removal proceedings from the
immigration authorities. Martinez-Baez concedes that he is
removable, but he maintains that he is entitled to be
2 No. 20-1078
considered for discretionary cancellation of removal under
section 240A of the Immigration and Nationality Act (INA),
8 U.S.C. § 1229b(b). The immigration judge did not see mat-
ters that way, finding instead that Martinez-Baez had not es-
tablished either of the legal prerequisites for cancellation:
10 years of continuous presence or exceptional and extremely
unusual hardship to a U.S. citizen relative. The Board of Im-
migration Appeals affirmed, and Martinez-Baez has now pe-
titioned this court for review.
We conclude that the Board was too quick to deny relief.
The IJ erred procedurally by failing to resolve whether
Martinez-Baez’s testimony about the most important fact in
this case—his date of entry—was credible. In addition, the IJ
and Board mischaracterized the evidence pertaining to the
asserted hardship. We therefore grant the petition and
remand for further proceedings.
I
Martinez-Baez was born in Veracruz, Mexico, in 1980. As
he tells it, in the summer of 2000 he unlawfully crossed the
U.S.-Mexico border. The exact date of his initial entry is un-
clear. The government agrees, however, that border patrol
agents apprehended Martinez-Baez and returned him to
Mexico three times in June of 2000. Martinez-Baez testified
that after his third return, he again slipped back into the coun-
try and at last succeeded in remaining undetected. If that is
true, then the starting point for his stay in the United States is
around late June or July of 2000.
After crossing the border, Martinez-Baez headed north to
Lake Geneva, Wisconsin, which is located about an hour
north-northwest of Chicago. There he purchased a social
No. 20-1078 3
security and work permit card for $60 under the assumed
name of Waldemar Oquendo. He soon began working at a
plastics factory, where he remained for more than seven
years. The first time he filed a federal tax return was in 2002.
Martinez-Baez settled in Lake Geneva and eventually had
three U.S.-citizen children with his partner. His youngest
daughter, Melanie, was born in January of 2012. Since starting
kindergarten, Melanie has experienced speech and language
impairments that make it difficult for her to communicate and
to understand directions. As it was required to do, the Lake
Geneva School system created an Individualized Education
Program (“IEP”) for Melanie. See Wisc. Stat. §§ 115.76(9),
115.787; Wisc. Admin. Code PI 11.36(5)(a).
Eight months before Melanie was born, the Department of
Homeland Security served Martinez-Baez with a Notice to
Appear. The NTA, dated April 5, 2011, charged that he was
removable under 8 U.S.C. § 1227(a)(6)(A)(i) for being present
in the United States without admission or inspection.
Martinez-Baez appeared before an IJ on June 26, 2012, and
conceded removability, but he indicated that he would seek
cancellation of removal—a discretionary form of relief
pursuant to 8 U.S.C. § 1229b.
In order to obtain cancellation of removal, a noncitizen
must demonstrate that he satisfies the applicable eligibility re-
quirements and that he merits a favorable exercise of discre-
tion. § 1229a(c)(4)(A); see Perez-Fuentes v. Lynch, 842 F.3d 506,
508 (7th Cir. 2016). There are four threshold eligibility require-
ments. Cancellation is possible, though not guaranteed, if the
noncitizen:
4 No. 20-1078
(A) has been physically present in the United States
for a continuous period of not less than 10 years imme-
diately preceding the date of [his] application;
(B) has been a person of good moral character dur-
ing such period;
(C) has not been convicted of an offense under sec-
tion 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title,
subject to paragraph (5); and
(D) establishes that removal would result in excep-
tional and extremely unusual hardship to the [nonciti-
zen’s] spouse, parent, or child, who is a citizen of the
United States or [a noncitizen] lawfully admitted for
permanent residence.
§ 1229b(b)(1). On May 25, 2018, the IJ denied relief, holding
that Martinez-Baez had failed to establish continuous pres-
ence (subpart A) and hardship (subpart D).
Although Martinez-Baez initially testified that he entered
in May or June of 2000, the IJ noted in his eventual decision
that “on cross-examination [Martinez-Baez] admitted that it
may have been July, 2000.” The judge then remarked: “How-
ever, there is no corroborative documentation for either 2000
or 2001.” He further noted that “[t]he respondent testified that
his documents under the name ‘Waldmaro [sic] Oquendo’
were lost,” and that “although [Martinez-Baez] stated that he
immediately obtained a job with a plastics factory (and main-
tained employment over the course of the next seven years),
he did not submit a letter to confirm this despite the fact that
his partner and the mother of their children … is employed
there now.” Last, the IJ noted that in Martinez-Baez’s
No. 20-1078 5
application for relief, he wrote that he started working for the
plastics factory in July 2002.
The IJ also held that Martinez-Baez had not shown that
Melanie would suffer exceptional and extremely unusual
hardship if he were removed. Martinez-Baez had submitted
Melanie’s IEP to the IJ, and at the hearing, the IJ heard testi-
mony from Martinez-Baez and Tracy Mitten (a speech
pathologist at Lake Geneva Public schools who helped to craft
Melanie’s IEP and worked directly with Melanie). The IJ
nonetheless found the record incomplete and complained
that he had to assess the IEP “without sufficient guidance” to
determine how much hardship Melanie was likely to suffer
without her father. The IJ believed that
the testimonies of the witnesses (including the re-
spondent) did not adequately address, and therefore
did not adequately establish, the severity of her condi-
tion, the impact (both short-term and long term) of the
respondent’s departure (with or without her), the
availability of similar treatment in Mexico if she were
to accompany him, why treatment would necessarily
have to be discontinued if he were to return to Mexico
alone, and her future prognosis.
The IJ thus denied relief. On appeal, the Board of Immigration
Appeals “adopted and affirmed” the portion of the IJ’s
decision pertaining to the hardship criterion. Holding that a
lack of hardship to Melanie sufficed to deny relief, the Board
dismissed the appeal; it declined to reach the continuous-
presence issue.
On January 14, 2020, Martinez-Baez asked us to review his
case. He maintained that the IJ’s decision was arbitrary and
6 No. 20-1078
capricious because the judge “failed to consider relevant tes-
timony of the Petitioner and the witness.” The Acting Attor-
ney General maintains that the IJ considered those testimo-
nies at length, and that apart from the merits of Martinez-
Baez’s claims, 8 U.S.C. § 1252(a)(2)(B)(i) strips this court of ju-
risdiction even to entertain this petition.
II
The government correctly notes that the courts generally
lack jurisdiction to review denials of discretionary relief. Sec-
tion 1252(a)(2)(B)(i) of the statute provides that “no court shall
have jurisdiction to review,” among other things, any judg-
ment regarding the granting of relief under section 1229b
(cancellation of removal). But there are exceptions. Section
1252(a)(2)(D) limits the jurisdiction-stripping language of sec-
tion 1252(a)(2)(B) by providing that nothing in that section
“shall be construed as precluding review of constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). We have
interpreted the phrase “questions of law” in subparagraph
(D) narrowly, holding that legal questions are present only
when the “Board misinterprets a statute, regulation, constitu-
tional provision, or its own precedent, applies the wrong legal
standard, or fails to exercise its discretion at all.” Bachynskyy
v. Holder, 668 F.3d 412, 417 (7th Cir. 2011).
On this understanding, we often have declined to exercise
jurisdiction over removal cases in which the petitioner
wanted us to review whether a legal standard was correctly
applied to the facts of her case. Musa v. Lynch, 813 F.3d 1019,
1023 (7th Cir. 2016). We reasoned that the mere presence of a
“legal standard” on which the IJ or Board based its decision
could not give rise to a justiciable “legal question” under sec-
tion 1252(a)(2)(D). Our restraint has been founded on a belief
No. 20-1078 7
that if we were to proceed otherwise, “nearly all factual deter-
minations would fall within our jurisdiction despite Con-
gress’ mandate to the contrary.” Adebowale v. Mukasey, 546
F.3d 893, 896 (7th Cir. 2008). To avoid that result—one that we
have deemed inconsistent with the statutory scheme—we
have taken the position that a “question of law” does not arise
when the issue relates to the application of a legal standard to
the facts of the case—i.e. a mixed question of law and fact.
It is possible that we have drawn too strict a line. Recently
the Supreme Court read the jurisdictional grant more gener-
ously. See Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020). The
issue before the Court in that case concerned the Board’s de-
nial of the petitioner’s request for equitable tolling—a deci-
sion that required the Board to determine, in its discretion,
whether an applicant had exercised “diligence” in pursuing
his claim. The Fifth Circuit had found that it was barred from
reviewing the Board’s action because the question whether an
alien was diligent for purposes of equitable tolling was a fac-
tual one, outside the scope of section 1252(a)(2)(D).
The Supreme Court did not see the case that way. It de-
scribed the question before it as follows: “whether the statu-
tory phrase ‘questions of law’ includes the application of a le-
gal standard to undisputed or established facts.” 140 S. Ct. at
1068. The answer, it held, is yes. In the case before it, the peti-
tioners had been found to be removable based on certain
crimes they had committed. Section 1252(a)(2)(C) describes
the outer bounds of judicial review for such “orders against
criminal aliens,” and contains a jurisdiction-stripping provi-
sion functionally identical to the one found in section
1252(a)(2)(B)(i), the part of the statute that limits judicial re-
view of denials of discretionary relief. As is the case with
8 No. 20-1078
section 1252(a)(2)(B), subparagraph (C)’s jurisdictional re-
striction is limited by subparagraph (D). We see nothing in the
language or logic of Guerrero-Lasprilla that would indicate that
its holding is limited to subparagraph (C). It thus may be the
case that, to the extent that Martinez-Baez raises either pure
legal questions or “the application of a legal standard to un-
disputed or established facts,” he may take advantage of sec-
tion 242(a)(2)(D).
This case does not require us ultimately to take a position
on that issue. But it is a serious question. On the one hand,
both the Department of Justice and several of our sister
circuits have read Guerrero-Lasprilla not to go that far. The
Acting Attorney General argues that Guerrero-Lasprilla’s
“silence” (his word, not ours) on whether subparagraph (D)
“permits review of agency exercises of discretion” must mean
that Guerrero-Lasprilla did not authorize subparagraph (D) to
cover the discretionary decisions enumerated in
subparagraph (B). Persuaded by that reasoning, the Tenth
Circuit has held that Guerrero-Lasprilla notwithstanding,
subparagraph (D) does not authorize courts to review “how
the Board exercises its discretion,” even if that entails how the
Board applies an acknowledged legal standard to a
discretionary decision. Galeano-Romero v. Barr, 968 F.3d 1176,
1183–84 (10th Cir. 2020). And the Fifth Circuit recently held
that Guerrero-Lasprilla did not displace its jurisdiction-limiting
precedent, because its restraint is “not based on whether [a
discretionary decision] is too ‘factual’ to be a ‘question[ ] of
law,’” but is instead based “on the simple observation that the
Attorney Generalʹs power [to make that decision] is purely
discretionary.” Nastase v. Barr, 964 F.3d 313, 320 (5th Cir.
2020).
No. 20-1078 9
On the other hand, our sister circuits may have skipped
too quickly over the text of the statute, as now construed in
Guerrero-Lasprilla. Although “a subchapter heading cannot
substitute for the operative text of the statute,” Florida Dept. of
Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008), the
Supreme Court has recognized that “statutory titles and sec-
tions headings are tools available for the resolution of a doubt
about the meaning of a statute.” Id. (citations and quotation
marks omitted). With that in mind, we observe that the head-
ing of section 1252(a)(2)(B) provides that “Matters not subject
to judicial review” include “Denials of discretionary relief.”
Section 1252(a)(2)(B) then says that “no court shall have juris-
diction to review” the discretionary decisions enumerated
within that section “except as provided in subparagraph (D).”
(Emphasis added). Turning to subparagraph (D), we are told
that “nothing in subparagraph (B) or (C) … shall be construed
as precluding review” of constitutional claims or legal ques-
tions. Guerrero-Lasprilla may thus indicate that courts have a
role to play if, antecedent to or embedded in a discretionary
call, there is a constitutional claim or a question of law.
Such an interpretation would not wreak havoc with the
statutory review scheme. Many discretionary decisions will
be unaffected by a nonfrivolous question of law, and thus
they will continue to be unreviewable pursuant to the general
rule of subparagraph (B) or (C). Discretion normally has some
boundaries, however, and courts are authorized under sub-
paragraph (D) to ensure that those statutory limits are re-
spected. The Guerrero-Lasprilla Court was concerned about the
risk of unduly constricting the scope of section 1252(a)(2)(D),
which it dubbed the Limited Review Provision. 140 S. Ct. at
1067. The Court ruled as it did in order to preserve the respec-
tive roles of sections 1252(a)(2)(D) and the two subparagraphs
10 No. 20-1078
that it affects. To hold that review is never possible so long as
the Board accurately recites the letter of the law, the Court
warned, would permit the Board perpetually to evade review
of a great number of legal issues. 140 S. Ct. at 1070.
As we said, however, we do not need to wrestle these dif-
ficult questions to the ground. Pertinent to Martinez-Baez’s
case, we know that even if the final decision whether to cancel
removal is discretionary, legal questions can and do arise
along the way. We thus proceed to look at the issues before us
in accordance with our established cases.
III
The Board adopted and affirmed the decision of the IJ on
the “presence” issue without supplementing the IJ’s
reasoning. Thus, the relevant “final agency determination”
for our review is the IJ’s decision. See Hussain v. Gonzales, 424
F.3d 622, 626 (7th Cir. 2005). Martinez-Baez’s appeal presents
procedural questions, which are legal in nature. The first is
whether an IJ commits error when he fails to make an express
credibility finding, and then holds that gap in the record
against the applicant. Such an error would go to the
procedural sufficiency of the hearing, which is a legal point.
See Perez-Fuentes v. Lynch, 842 F.3d 506, 510 (7th Cir. 2016).
The second question relates to the hardship issue and the IJ’s
and Board’s application of the standard for such evidence to
the facts before them.
A. Continuous Presence
The first requirement for cancellation of removal under
section 1229b(b)(1) requires that the applicant establish con-
tinuous physical presence for at least the 10 years immedi-
ately preceding his receipt of a Notice to Appear. Duron-Ortiz
No. 20-1078 11
v. Holder, 698 F.3d 523, 527 (7th Cir. 2012). The burden is on
the applicant to establish continuous presence.
§ 1229a(c)(4)(B). The IJ has the authority to order that the “ap-
plicant should provide evidence which corroborates other-
wise credible testimony,” and the applicant “must” comply
“unless [he] demonstrates that [he] does not have the evi-
dence and cannot reasonably obtain the evidence.” Id.
1
The only evidence that Martinez-Baez produced to estab-
lish continuous presence was his own testimony at the May 7,
2018 removal hearing. Prompted by his attorney, he initially
stated that he had “entered in June of 2000” and began work-
ing at a plastics factory soon after. On cross examination, the
government’s attorney asked Martinez-Baez whether he had
any documents to show he was in the United State before
2002, because the earliest documentary evidence on record
was a 2002 tax return. Martinez-Baez replied, “Well, yes. I had
some documents. I don’t really know what happened. I had
them under the other name, name of Waldemar Oquendo, but
I think they were lost. I, I lost them, but I, I also had an ac-
count, a bank account, and also, they should have records at
the factory that I worked in.”
Right after this exchange, the government’s attorney
sought to impeach Martinez-Baez’s account of his date of en-
try by asking whether he recalled being returned to Mexico
by border patrol agents in the summer of 2000. Martinez-Baez
said yes. The government’s attorney then asked whether he
could recall in which month those returns took place:
A: Not exactly, but since I remember I got here in June,
possibly in May it would have been.
12 No. 20-1078
Q: So, would it surprise you to know that all three of
those returns were in July 2000?
A: Well, I donʹt remember exactly. I really donʹt re-
member exactly whether it’s June or July, but they
were one after the other. So, after that, I didnʹt go and
do it again.
Q: Okay. And then right after that, is that when you
came into the United States?
A: Just right after that, yes.
Q: Okay. So is it fair to say you did not enter the United
States in June of 2000?
A: Well, the truth is I donʹt remember exactly, so itʹs
difficult for me to say yes or no. What I do remember
is that I came in either in June or July.
The IJ ultimately held that Martinez-Baez failed to carry
his burden of establishing continuous presence. In his opin-
ion, the IJ criticized what he saw as Martinez-Baez backtrack-
ing on cross-examination about his precise date of entry and
the lack of “corroborative evidence for either 2000 or 2001.”
This latter point seemed especially to trouble him. He also re-
marked that Martinez-Baez had not managed to produce a
letter to confirm his alleged employment in the plastics fac-
tory, “despite the fact that his partner and the mother of their
children … is employed there now.” He also noted the lack of
any corroboration that Martinez-Baez had a bank account in
2000.
2
The INA grants the IJ discretion to ask for corroborative
evidence to support an applicant’s petition for relief. If asked,
No. 20-1078 13
the applicant must either produce such evidence or explain
why he cannot do so. If he does neither, the IJ is authorized to
deny relief. See § 1229a(c)(4)(B); Weiping Chen v. Holder, 744
F.3d 527, 533 (7th Cir. 2014) (“Unless [the applicant] can prove
that he could not have reasonably obtained corroborating ev-
idence, his failure to produce such evidence is ‘fatal to [his]
claims.’”). There is no need for an IJ to warn the applicant of
the consequences of failing to furnish the corroborative evi-
dence before making an adverse ruling. See Rapheal v.
Mukasey, 533 F.3d 521, 530 (7th Cir. 2008).
Nonetheless, when a credibility finding is “inextricably in-
tertwined with the IJ’s ruling on the need for corroborative
evidence,” Id. at 528, the Board must consider the applicant’s
“credibility before ruling on the need for corroborative evi-
dence.” Id. Logically, this implies that when an IJ says nothing
about credibility, yet later based his decision on the appli-
cant’s failure to produce evidence supporting otherwise un-
disputed testimony, he commits procedural error.
3
The INA expressly imposes on the IJ the duty to make and
explain his credibility finding in removal proceedings:
In evaluating the testimony of the applicant or other
witness in support of the application, the immigration
judge will determine whether or not the testimony is
credible, is persuasive, and refers to specific facts suffi-
cient to demonstrate that the applicant has satisfied the
applicant’s burden of proof. In determining whether
the applicant has met such burden, the immigration
14 No. 20-1078
judge shall weigh the credible testimony along with
other evidence of record.
8 USC § 1229a(c)(4)(B) (emphasis added). As used here, the
word “will” reflects a mandate. See Garner’s Dictionary of Le-
gal Usage 947 (3d ed. 2011) (Will: “must”). (The other possi-
bility is as an indicator of the future tense, but no one would
read the language quoted above that way.) And this determi-
nation must take place during the process of evaluating the
testimony.
The second sentence in the excerpt tells the IJ that he
“shall” weigh the “credible testimony along with other evi-
dence of record” when determining whether the applicant
has met his burden of proof. § 1229a(c)(4)(B). The word
“shall” typically connotes a command, not a discretionary op-
tion, and that is how the INA consistently uses it. For exam-
ple, it states that the “immigration judge shall administer
oaths, receive evidence, and interrogate, examine, and cross-
examine the alien and any witnesses.” 8 U.S.C. § 1229a(b)(1)
(emphasis added). In order to carry out his duty under section
1229a(c)(4)(B), the IJ must know which evidence falls on the
“credible” side of the line, and which does not. And for our
purposes, meaningful review is possible only if we know how
the IJ assessed the evidence—indeed, we are barred from
making an independent determination on that factual issue.
See Boadi v. Holder, 706 F.3d 854, 860 (7th Cir. 2013).
Section 1229a(c)(4)(C) concludes by establishing what
happens if for some reason the IJ fails to make an express
credibility finding: “There is no presumption of credibility[;]
however, if no adverse credibility determination is explicitly
made, the applicant or witness shall have a rebuttable pre-
sumption of credibility on appeal.” (Emphasis added.) In
No. 20-1078 15
other words, at the outset there is no presumption in favor of
the applicant’s credibility, but if the IJ makes no express find-
ing on the point, then a rebuttable presumption of credibility
arises.
4
In Martinez-Baez’s case, the IJ failed to make this critical
finding. Instead, in his brief discussion of the continuous-
presence requirement, the judge noted only that “the
respondent has not presented sufficient probative evidence”
and that he has not furnished “corroborative documentation
for either 2000 or 2001.” (Emphasis added). (Recall that any
arrival time before April 5, 2001, would have sufficed to
satisfy the ten-year rule.) In addition, the judge specifically
stated that Martinez-Baez was not barred from relief because
of his moral character. See 8 U.S.C. § 1101(f). What we do not
know is whether this was a back-handed way of saying that
Martinez-Baez’s testimony was not credible, or if the IJ
thought the testimony was credible (perhaps noting that the
evidence of his unsuccessful efforts in 2000 to cross the border
provided some corroboration for a 2000 arrival). If we could
read it as a credibility finding, then we would defer to the IJ’s
finding. But we cannot squeeze a credibility finding out of this
record. That leaves us with a missing step: an express
assessment of credibility. This is not a procedural gap that we
are authorized to fill.
Martinez-Baez’s case is similar to Rapheal v. Mukasey, su-
pra, 533 F.3d 521. There, based on an inconsistency between
the content of the applicant’s testimony and an earlier written
representation to the court, an IJ found that the testimony was
not credible. 533 F.3d at 524–25. The critical question was
whether the applicant’s family name, Rapheal, would make
16 No. 20-1078
her vulnerable to persecution if she were returned to Liberia,
her country of origin. Id. She testified that her father, Michael
Rapheal, was well known as a supporter of the notorious
Charles Taylor regime, but there was a handwritten note indi-
cating that her maiden name was “Kocoker,” which was not
a family associated with Taylor. The IJ denied relief, holding
that she did not meet “her burden of proof through credible,
consistent testimony or a combination of testimony and cor-
roboration.” Id.On appeal, the Board declined to reach the issue of Rap-
heal’s credibility, holding that it was sufficient for dismissal
that she “did not provide corroborative evidence and could
have done so.” Id. § 1158(b)(1)(B)(ii). We granted her petition
for review and remanded. We reasoned that in cases such as
Rapheal’s—where the statute permits relief solely on the basis
of credible testimony and an IJ determines that corroborative
evidence is required because the applicant’s testimony is not
credible—the Board is required independently to assess cred-
ibility. Id. at 528. When the Board “bypasse[s] the credibility
finding,” the reviewing court is unable to ascertain whether
relief may have been granted had a positive finding of credi-
bility been made. Id.
The same principle holds at the IJ level (and recall, the
Board essentially adopted the IJ’s decision on this point). If
the IJ bypasses the credibility finding and demands corrobo-
rative evidence, we need to know whether the judge is doing
so in order to buttress otherwise credible testimony or to over-
come testimony that is not credible.
“This is not a case of the IJ ruling alternatively, i.e., holding
that even if [the applicant] were credible, her petition would
be denied because of the lack of corroborative evidence.” Id.
No. 20-1078 17
at 528. All we know here is that the IJ faulted Martinez-Baez
for not producing corroborative documentation. But we can-
not confidently forecast how the IJ might have weighed the
evidence of continuous presence in the final analysis, had he
made a positive credibility finding about Martinez-Baez’s tes-
timony. The IJ’s failure to make a credibility finding is thus a
procedural legal error.
The statute requires the IJ to make an express credibility
finding, both to ensure that the evidence is properly assessed,
and to facilitate meaningful review by both the Board and the
court. Because the IJ did not do so here, we cannot rely on this
ground for his decision. Perhaps the Board had a similar con-
cern, as it chose to rest its decision exclusively on the hardship
ground. We thus move on to that issue, recalling again that
Martinez-Baez may not prevail unless he can demonstrate re-
viewable error on both points.
B. Extreme Hardship
As we noted earlier, section 1229b(b)(1)(D) requires an al-
ien to “establish[] that removal would result in exceptional
and extremely unusual hardship to the [noncitizen’s] spouse,
parent, or child, who is a citizen of the United States … .” For
this part of the case, we review the decision of the Board,
which found that “the respondent has not submitted suffi-
cient evidence to establish that the hardship to his U.S. citizen
would rise to the level of exceptional and extremely unusual
[sic] upon his removal to Mexico.” The requisite hardship for
this purpose must be “substantially different from, or beyond,
that which would be normally expected from the deportation
of an alien with close family members in the United States.”
Cruz–Moyaho v. Holder, 703 F.3d 991, 995 (7th Cir. 2012) (quot-
ing In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001))
18 No. 20-1078
(alterations omitted). Notably, the Board has recognized that
a “strong applicant [for relief] might have a qualifying child
with very serious health issues, or compelling special needs
in school.” In Re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63 (BIA
2001). Martinez-Baez contends that his daughter Melanie is
such a child.
1
We acknowledge at the outset that we lack jurisdiction to
review a petitioner’s contention that an agency should have
exercised discretion in his favor. Mireles v. Gonzales, 433 F.3d
965, 968 (7th Cir. 2006). We have applied this jurisdictional re-
straint to the Board’s determination of the factual question
whether the petitioner has shown “exceptional and extremely
unusual hardship” to the qualifying U.S. citizen. See Jimenez-
Aguilar v. Barr, 977 F.3d 603, 605 (7th Cir. 2020). Jurisdiction is
unavailable “whether the alien’s argument is that the agency
abused its discretion or that it failed to conduct a thorough
review of the record.” Mireles, 433 F.3d at 968.
In keeping with that rule, Martinez-Baez does not allege
that the IJ should have been more thorough in his review of
the record, or that he should have referred expressly to each
shred of evidence in his written opinion, or that he abused his
discretion. Rather, he argues that the IJ failed to recognize the
existence of an entire swath of evidence that was pertinent to
the hardship issue. He argues that this went beyond a simple
failure to discuss certain evidence or to describe it properly.
As our sister circuit has held, “the [Board] does not commit
an ‘error of law’ every time an item of evidence is not explic-
itly considered or is described with imperfect accuracy, but
where, as here, some facts important to the subtle determina-
tion of ‘exceptional and extremely unusual hardship’ have
No. 20-1078 19
been … seriously mischaracterized, we conclude that an error
of law has occurred.” Mendez v. Holder, 566 F.3d 316, 323 (2d
Cir. 2009).
2
An applicant’s asserted hardship to a qualifying relative
“must be considered on its own individual facts.” In Re
Andazola-Rivas, 23 I. & N. Dec. 319, 323 (BIA 2002). The Board
has held that while some comparison between other
applicants’ asserted hardships is necessary in order to apply
the comparative hardship standard, the IJ and Board must
consider individual hardships on their own terms—
generalizations will not do. Id. at 323. This mandate places an
outer limit on an IJ’s ability to characterize the evidence
before him. At some point, the “individual hardship”
described by an IJ will diverge too much from the actual
hardship shown in the record. The error in such a case is
procedural: the failure to take into account the entire record,
no matter what the final conclusion might be.
To support his claim of exceptional and extremely unusual
hardship to Melanie, Martinez-Baez presented three pieces of
evidence: (1) the Individualized Education Program created
by the Lake Geneva School District for Melanie; (2) his own
testimony pertaining to Melanie’s hardship and how it affects
her life; and (3) the testimony of Trisha Mitten, a speech
pathologist at Lake Geneva Schools who works with Melanie
and developed the IEP.
In holding that Martinez-Baez failed to establish hardship,
the IJ relied exclusively on a perceived deficiency in the testi-
monies of Martinez-Baez and Mitten. We set forth the full text
of the judge’s rationale:
20 No. 20-1078
Although the respondent submitted a copy of
[Melanie’s] IEP plan, the testimonies of the witnesses
(including the respondent) did not adequately
address, and therefore did not adequately establish,
the severity of her condition, the impact (both short-
term and long term) of the respondent’s departure
(with or without her), the availability of similar
treatment in Mexico if she were to accompany him,
why treatment would necessarily have to be
discontinued if he were to return to Mexico alone, and
her future prognosis. … .
This statement makes no sense. The IJ himself just three pages
earlier wrote that Mitten had “stated that Melanie’s stuttering
problem is mild to moderate, but that it creates problems not
only with verbal communications but also socially/behavior-
ally because it creates the false perception that she acts aggres-
sively.” The Board picked up the “mild to moderate” charac-
terization. The problem is worse than the fact that this is not
an accurate account of Mitten’s testimony: it is that this sup-
posed evaluation of the severity of Melanie’s condition ap-
pears nowhere in the record.
In her testimony, Mitten described Melanie as presenting
with “accessory stuttering.” “She stutters due to learning lan-
guage, and also, to controlling her, her ability to define
words,” Mitten then explained how the condition affects
Melanie’s daily life:
Q: So, she has, she has—does she have trouble com-
municating with other people?
A [Mitten]: Yes. She—
No. 20-1078 21
Q: Okay. Now, how would you categorize that trouble
communicating with other people? Now would you call
it mild? Would you call it extreme? Somewhere in be-
tween?
A: Itʹs mild to moderate.
Q: Mild to moderate.
A: Mild to moderate, depending on the day. There’s—
it’s—because people who stutter, it highly varies.
There’s good days. There’s bad days.
(Emphasis added). To be precise, it was the trouble communi-
cating with others that was “mild to moderate,” not the stut-
ter. The IJ and later the Board missed this distinction. The se-
verity of a symptom does not tell us anything about the sever-
ity of the ailment of which the symptom is only one visible
manifestation.
Melanie’s case illustrates this point. The IEP indicates that
Melanie suffers from “Speech/Language Impairment.” Wis-
consin’s administrative code defines that as “an impairment
of speech or sound production, voice, fluency, or language
that significantly affects educational performance or social,
emotional or vocational development.” Wisc. Admin. Code PI
11.36(5)(a) (emphasis added). Melanie’s IEP states that her im-
pairment causes a delay in auditory comprehension and in-
terferes with her ability to express her thoughts and ideas.
The IEP further states that Melanie’s developmental delay
in language acquisition “impairs oral communication in [her]
natural environment,” and her language and fluency impair-
ment “significantly affects [her] educational performance or
social, emotional, or vocational development.” In formal test-
ing for language articulation and phonology, Melanie scored
22 No. 20-1078
“at or below 1.75” standard deviations below the mean of
children her age. In formal testing to “reveal her grammar use
in her native language in order to fluently formulate her
thoughts,” Melanie scored over two standard deviations be-
low the mean for Spanish-speaking children of her age. Fi-
nally, the IEP concludes that “Melanie’s identified speech and
language needs require an individualized program[,] which
supplementary aids and/or services are [unable] to provide in
the regular education classroom,” such that “Melanie will not
participate full time with non-disabled peers” at school.
We mention these facts because they are conspicuously ab-
sent from the IJ’s explanation, reproduced above. The IJ and
the Board cannot simply announce that there is no evidence
on a point that is in fact well covered in the record. Between
the IEP and Mitten’s testimony, there was ample disinterested
evidence on which to base an assessment of the severity of
Melanie’s condition. We have no way of knowing whether,
had the IJ and Board looked at this evidence, they still would
have found that Martinez-Baez failed to establish the requisite
hardship to a qualifying relative.
The IJ also acted as if there was no evidence about the na-
ture of Melanie’s condition, even though Mitten also covered
this in her testimony. When describing what would happen if
treatment were discontinued, Mitten noted that the “higher
the emotion that [Melanie] has internally, the worse [the con-
dition] gets.” Further, Mitten state that Melanie has a “very
fast rate of speaking,” and that “her anxiety will increase” if
treatment were to stop. This testimony highlights aggravating
factors that exacerbate the condition.
Accordingly, this record contains significant evidence that
the emotional hardships that would ordinarily be expected to
No. 20-1078 23
result from an alien’s deportation may be exceptionally severe
in Melanie’s case, given that her hardship is aggravated by
emotional turmoil. The IJ and the Board never grappled with
this. In addition, their failure to consider the future hardship
faced by a qualifying relative is error under the Board’s own
legal standard, which holds that the hardship inquiry is pro-
spective. See Andazola-Rivas, 23 I. & N. Dec. at 323 (“the rela-
tive level of hardship a person might suffer cannot be consid-
ered entirely in a vacuum. It must necessarily be assessed, at
least in part, by comparing it to the hardship others might
face.”) (emphasis added).
Nothing we have said would prevent the Board from con-
cluding on remand that Melanie’s condition does not amount
to exceptional and extremely unusual hardship. But its cur-
rent reasoning, based on the IJ’s flawed approach to the rec-
ord, cannot stand. As we noted in Iglesias v. Mukasey, 540 F.3d
528 (7th Cir. 2008), “a claim that the [Board] has completely
ignored the evidence put forth by a petitioner is an allegation
of legal error.” Id. at 531.
3
Last, the IJ committed legal error by holding that
Martinez-Baez needed to establish that similar treatment was
unavailable in Mexico. That question is relevant only if the
qualifying relative would be accompanying the applicant
upon removal. The Board puts it this way: “to the extent that
a claim [for relief] is based on the health of a qualifying
relative, an applicant needs to establish that the relative has a
serious medical condition and, if he or she is accompanying the
applicant to the country of removal, that adequate medical care
for the claimed condition is not reasonably available in that
country.” Matter of J-J-G-, 27 I. & N. Dec. 808, 811 (BIA 2020)
24 No. 20-1078
(emphasis added). If the qualifying relative will be staying in
the United States, the applicant needs only to establish the
seriousness of the condition.
It “is the applicant’s burden to establish that a qualifying
relative will accompany him or her to the country of
removal.” Id. at 811 n. 3. When Martinez-Baez was asked “if
you went back to Mexico, would your kids go with you?” he
replied “Possibly.” When asked if his partner would go with
him, he said “Possibly so.” The government’s attorney then
followed up, “So you haven’t decided one way or the other,”
and Martinez-Baez said “yes.” On this record, it is entirely
possible that Melanie will exercise her right as a U.S. citizen
to stay in the country, either with her mother or some other
qualified adult. We do not underestimate the emotional pain
that such an outcome would entail. Nonetheless, since it is by
no means clear that Melanie would end up in Mexico,
Martinez-Baez did not need to delve into the quality of care
she hypothetically might receive there. He needed only to
show that his removal from the United States would result in
exceptional and extremely unusual hardship to her. It was
thus error for the IJ to demand that Martinez-Baez prove the
unavailability of care in Mexico.
IV
Accordingly, we GRANT the petition for review and
REMAND for further proceedings.