Ernesto Hernandez-Velasco v. Todd Blanche

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2026
• Docket: 19-71168
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERNESTO HERNANDEZ-VELASCO, No. 19-71168

Petitioner, Agency No. A205-576-046

v. MEMORANDUM* TODD BLANCHE, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 17, 2026** San Francisco, California

Before: RAWLINSON, R. NELSON, and BADE, Circuit Judges.

Ernesto Hernandez-Velasco, a native and citizen of Mexico, petitions for

review of a final order of the Board of Immigration Appeals (BIA) affirming an

immigration judge’s (IJ) denial of cancellation of removal, withholding of

removal, and protection under the Convention Against Torture (CAT), and denying

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). his motion to reopen proceedings based on new evidence relevant to his claim for

cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we

deny the petition.

1. The BIA did not err as a matter of law in concluding that potential

deprivation of an opportunity to attain a high school education does not constitute

an “exceptional and extremely unusual hardship.” 8 U.S.C. § 1229b(b)(1)(D). To

qualify as “exceptional and extremely unusual hardship,” the burden imposed on

the alien’s qualifying relatives “must deviate, in the extreme,” from “the hardship

that results in the usual, ordinary course when an alien is removed.” Gonzalez-

Juarez v. Bondi, 137 F.4th 996, 1006 (9th Cir. 2025). Although the agency must

consider “whether the children will be deprived of an opportunity to have an

education,” Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1012 (9th Cir. 2005)

(citing In re Andazola-Rivas, 23 I. & N. Dec. 319, 323–24 (B.I.A. 2002)), neither

this court nor the BIA has ever held that deprivation of an opportunity to attain an

education is dispositive of “exceptional and extremely unusual hardship.” Instead,

case law supports the conclusion that this factor alone is insufficient to qualify an

alien for cancellation of removal. Cf. In re Gonzalez Recinas, 23 I. & N. Dec. 467,

471–72 (B.I.A. 2002) (concluding that “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, the lawful

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

concomitant lack of family in Mexico” constituted an “exceptional and extremely

unusual hardship,” but only “by a close margin”). Accordingly, the BIA did not

fail to apply the controlling legal standard.

2. Substantial evidence supports the BIA’s determination that Hernandez-

Velasco’s motion to reopen failed to make out a prima facie case of “exceptional

and extremely unusual hardship” to his qualifying relatives. 8 U.S.C.

§ 1229b(b)(1)(D); 8 C.F.R. § 1003.2; Gonzalez-Juarez, 137 F.4th at 1002–03;

Lemus-Escobar v. Bondi, 158 F.4th 944, 963–64 (9th Cir. 2025). The new

evidence accompanying the motion relates to how removal would detrimentally

affect Hernandez-Velasco’s three daughters’ educational opportunities. At the

time of the immigration hearing, his oldest daughter was doing very well in school

and had been enrolled in a gifted students program; the new evidence shows that

she has been excelling in that program. The new evidence shows that his middle

daughter may also be a gifted student. And it shows that his youngest daughter

“was recently diagnosed with a 50% developmental delay in speech and is

receiving therapy [from] a Speech Pathologist and a Developmental Specialist.”

Hernandez-Velasco also proffered an article discussing the state of special

education services available in Mexico.

This new evidence, considered alongside the evidence in the record, does not

3 compel the conclusion that there is “a reasonable likelihood” of meeting the

statutory hardship standard upon reopening. Lemus-Escobar, 158 F.4th at 963.

The new evidence relating to his daughters’ educational abilities does not

materially undermine the agency’s determination that “the children, being young,

in good health, and able to speak some Spanish, would be able to adjust to life in

Mexico.” And as the BIA noted, the proffered article demonstrates only that

special education programs in Mexico are inferior to and less common than

equivalent programs in the United States, not that such programs are nonexistent.

See Andazola-Rivas, 23 I. & N. Dec. at 323 & n.1. Accordingly, the BIA’s denial

of reopening was proper.

3. Substantial evidence supports the agency’s determination that

Hernandez-Velasco’s claims for statutory withholding and CAT protection are too

speculative. See Gonzalez-Lara v. Garland, 104 F.4th 1109, 1116 (9th Cir. 2024);

Park v. Garland, 72 F.4th 965, 980 (9th Cir. 2023). Although there has been

considerable violence and strife between Hernandez-Velasco’s hometown of Santa

Maria and the neighboring towns, Hernandez-Velasco’s parents and siblings have

been living in Santa Maria without incident for years. The continued safety of

similarly-situated family members significantly undercuts the likelihood that

Hernandez-Velasco will experience the harm necessary to establish persecution or

torture upon removal to Mexico. Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.

4 2001); Go v. Holder, 640 F.3d 1047, 1053 (9th Cir. 2011).

4. Finally, Hernandez-Velasco argues that we should remand to the agency

for consideration of the new developments that have occurred during the prolonged

pendency of his case. We cannot do so. The scope of our review is limited to the

administrative record on which the decision was based, and we cannot grant relief

on grounds that have not been exhausted before the agency. 8 U.S.C.

§ 1252(b)(4)(A), (d)(1).

PETITION DENIED.1

1 The motion for stay of removal, Dkt. 1, is denied.