De La Cruz-Del Real v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 14, 2024
• Docket: 23-9525
• Status: Unpublished

Opinion

Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 14, 2024 _________________________________ Christopher M. Wolpert Clerk of Court FRANCISCO DE LA CRUZ-DEL REAL,

Petitioner,

v. No. 23-9525 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, BALDOCK, and MORITZ, Circuit Judges. _________________________________

An immigration judge (IJ) denied Francisco De La Cruz-Del Real’s application

for cancellation of removal and ordered him removed to Mexico. He appealed the

IJ’s decision to the Board of Immigration Appeals (BIA), which affirmed. He now

petitions for our review of the agency’s removal order. We deny the petition.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 2

BACKGROUND

Mr. De La Cruz is a native and citizen of Mexico who has been living in the

United States illegally. In 2018 the Department of Homeland Security served him

with a Notice to Appear (NTA) alleging he had entered the United States without

being admitted or paroled after inspection. He admitted the allegations in the NTA

and conceded his removability, but he sought cancellation of removal.

To be eligible for a discretionary grant of cancellation of removal,

Mr. De La Cruz had to establish four elements: (1) physical presence in the United

States for a continuous period of not less than ten years; (2) good moral character

during that time; (3) no convictions for certain enumerated offenses; and (4) “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.” 8 U.S.C. § 1229b(b)(1)(A)-(D). The government

stipulated that he met the physical presence requirement, had not been convicted of a

disqualifying offense, and had three qualifying relatives: his two citizen children,

and his lawful permanent resident mother. After considering the character evidence

Mr. De La Cruz presented, the IJ determined that he established good moral

character. Thus, for purposes of review, the only relevant issue is whether he showed

the requisite hardship, and because he does not challenge the IJ’s determination that

he failed to establish hardship as to his mother, we limit our discussion of the

background facts to those concerning his evidence of hardship to his children.

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At the hearing Mr. De La Cruz testified that his children—J.D., then age 9, and

B.D., then age 6—live with their mother, and he has custody of them on the

weekends. Mr. De La Cruz voluntarily pays $350 per month in support and provides

medical insurance for the children. He testified that B.D. is doing well in school and

does not suffer from any medical conditions. However, a psychological assessment

of J.D. showed that he has Attention Deficit Hyperactivity Disorder, Oppositional

Defiant Disorder , and anxiety. The assessment recommended that J.D. attend

therapy and take medication for his disorders. Mr. De La Cruz testified that J.D. has

behavioral issues but that he “seems [to be] getting a little bit better.” R. at 77.

Counsel for Mr. De La Cruz said J.D.’s mother “refused to do anything other than

receive pills,” and argued that J.D. “would benefit” from having “a father’s

presence.” Id. at 83.

The IJ concluded Mr. De La Cruz’s evidence did not meet the exceptional and

unusual hardship standard. The IJ acknowledged that Mr. De La Cruz’s removal

would have an emotional impact on both children, but the IJ noted that “family

separation is often an unfortunate side effect of removal proceedings” and found the

impact of this family’s separation did not “go substantially beyond that which is

normally experienced by a family member in a similar case.” Id. at 34. The IJ also

acknowledged J.D.’s diagnoses and behavioral issues and that his “mother does not

appear to have been particularly cooperative with the mental health evaluation.” Id.

The IJ also recognized that Mr. De La Cruz’s presence in J.D.’s “life might very well

have an impact on his behavior in the future.” Id. Again, however, the IJ concluded

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the hardship did not “rise to the level” of “exceptional and extremely unusual

hardship” for J.D. because he is getting medication, is doing better, is in school, and

“will continue to be cared for.” Id. at 35. Finally, the IJ recognized that

Mr. De La Cruz would be unable to “replace the income he currently makes in the

United States in Mexico,” and that the loss of financial support would be a hardship

for the children. Id.. But the IJ concluded that hardship did not meet the statutory

standard, “even if considered in the aggregate along with the behavior issues being

suffered by [J.D.].” Id.

Mr. De La Cruz appealed to the BIA, which affirmed without opinion pursuant

to 8 C.F.R. § 1003.1(e)(4).

DISCUSSION

1. Jurisdiction and Standard of Review

The BIA’s affirmance without opinion makes the IJ’s decision the final agency

determination for purposes of our review. See Uanreroro v. Gonzales, 443 F.3d

1197, 1203 (10th Cir. 2006); see also 8 C.F.R. § 1003.1(e)(4)(ii). We review the IJ’s

decision under the substantial evidence standard. See Yuk v. Ashcroft, 355 F.3d 1222,

1233 (10th Cir. 2004). Under that standard, the IJ’s factual findings “are conclusive

unless the record demonstrates that any reasonable adjudicator would be compelled

to conclude to the contrary.” Id. (internal quotation marks omitted). We must

uphold the IJ’s decision if it is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. (internal quotation marks

omitted).

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While this appeal was pending, the Supreme Court clarified that “the

application of the statutory ‘exceptional and extremely unusual hardship’ standard to

a given set of facts presents a mixed question of law and fact” subject to judicial

review under § 1229b(b)(1)(D). Wilkinson v. Garland, 601 U.S. 209, 221 (2024).1

That is true even in cases that “require[] a close examination of the facts.” Id. at 222.

We are “still without jurisdiction to review a factual question raised in an application

for discretionary relief.” Id. Thus, the “IJ's factfinding on credibility, the

seriousness of a family member’s medical condition, or the level of financial support

a noncitizen currently provides remain unreviewable.” Id. at 225. But “[w]hen an IJ

weighs those found facts and applies the ‘exceptional and extremely unusual

hardship’ standard, . . . the result is a mixed question of law and fact that is

reviewable under § 1252(a)(2)(D).” Id. at 222. “Because this mixed question is

primarily factual, that review is deferential.” Id. at 225; see also Martinez v.

Garland, 98 F.4th 1018, 1021 (10th Cir. 2024) (stating that under Wilkinson, “we

apply a deferential standard to review the BIA’s hardship determination”).

2. Application

Mr. De La Cruz argues the IJ erred in concluding he did not meet the statutory

hardship standard for his two children. Specifically, he argues the IJ “misappl[ied]

the law,” improperly weighed the evidence, and failed to consider the totality of the

circumstances. Pet’r Br. at 5.

1 Wilkinson abrogated our decision in Galeano-Romero v. Barr, 968 F.3d 1176, 1182-84 (10th Cir. 2020). 601 U.S. at 217 & n.2. 5 Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 6

In assessing hardship, the agency considers several factors, including the

“ages, health, and circumstances” of the applicant and his qualifying relatives.

In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 63 (BIA 2001). “[A]ll hardship factors

should be considered in the aggregate when assessing exceptional and extremely

unusual hardship.” Id. at 64. The applicant must show that the hardship to his

qualifying relatives if he is removed would be “substantially beyond the ordinary

hardship that would be expected when a close family member leaves this country.”

Id. at 62 (internal quotation marks omitted).

Mr. De La Cruz argues the IJ’s decision is inconsistent with In re Gonzalez

Recinas, 23 I. & N. Dec. 467 (BIA 2002) (en banc). But the facts and circumstances

of Recinas differ from those of this case. In Recinas, the respondent was the single

mother of six children, four of whom were United States citizens ranging in age from

5 to 12 years old. She depended on her mother to watch the children while she

worked, and there was no indication the children’s father remained actively involved

in their lives. The children would return to Mexico with their mother if she were

removed but they had never even traveled there and had difficulty speaking Spanish.

Under these circumstances, the BIA found the case presented a close question, and

fell “on the outer limit of the narrow spectrum of cases in which the exceptional and

extremely unusual hardship standard will be met.” Id. at 470. The BIA based its

conclusion on the “cumulative” hardship factors, including “the heavy financial and

familial burden on the adult respondent, the lack of support from the children’s

father, the United States citizen children’s unfamiliarity with the Spanish language,

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the lawful residence in this country of all of the respondent’s immediate family, and

the concomitant lack of family in Mexico.” Id. at 472 (internal quotation marks

omitted). Mr. De La Cruz’s case does not present such an extraordinary, cumulative

burden of unalleviated hardship factors, and the IJ’s hardship analysis in his case was

not inconsistent with Recinas’s cumulative approach. As Recinas stated, the

“cumulative factors” present there were “unusual and will not typically be found in

most other cases, where respondents have smaller families and relatives who” live in

the United States. Id.

Mr. De La Cruz reiterates the hardships his children may face upon his

removal, see Pet’r Br. at 7-8, but he does not show that the IJ ignored or failed to

discuss the aggregate impact of these harms when making its hardship determination.

In sum, Mr. De La Cruz has not established that the IJ, contrary to the

agency’s precedent, failed to assess the aggregate impact of hardship to his children.

Nor has he shown, under our deferential standard of review, that the IJ erred in

concluding that he failed to show the required level of hardship. We therefore deny

the petition for review on the hardship issue.

CONCLUSION

The petition for review is denied.

Entered for the Court

Per Curiam