Figueroa v. Garland

119 F.4th 160

• Court: Court of Appeals for the First Circuit
• Decided: October 17, 2024
• Docket: 22-1272
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 22-1272

JOSE MAURICIO FIGUEROA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Howard and Gelpí, Circuit Judges.

Robert M. Warren for petitioner.

Timothy Bo Stanton, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Cody Wofsy, Hannah Schoen, Lee Gelernt, Matthew R. Segal, Adriana Lafaille, Gilles Bissonnette, and SangYeob Kim, were on brief for the American Civil Liberties Union Foundation, American Civil Liberties Union of New Hampshire, and American Civil Liberties Union of Massachusetts, amici curiae. October 17, 2024 HOWARD, Circuit Judge. Jose Mauricio Figueroa, a native

and citizen of El Salvador, petitions for review of the denial of

his application for special rule cancellation of removal under the

Nicaraguan Adjustment and Central American Relief Act (NACARA).

Specifically, Figueroa takes issue with the agency's determination

that he was ineligible for this discretionary form of relief

because he failed to establish that his removal would result in

"exceptional and extremely unusual hardship" to himself or his

spouse Maria. For the reasons explained below, we deny the

petition.

I.

A.

The Department of Homeland Security (DHS) commenced the

underlying removal proceedings against Figueroa in 2007. The

relevant procedural history for our purposes, however, began in

March 2018, when Figueroa appeared in front of an immigration judge

(IJ) seeking special rule cancellation of removal under NACARA.

"Enacted in 1997, NACARA amended certain provisions of

the Illegal Immigration Reform and Immigrant Responsibility Act of

1996 (IIRIRA) permitting [certain] aliens from particular

countries, including [El Salvador], to seek discretionary relief

under prior, more generous statutory standards." Gonzalez-Ruano

v. Holder, 662 F.3d 59, 60 (1st Cir. 2011). Figueroa and DHS

agreed that a heightened NACARA standard applied to Figueroa based

- 3 - on his criminal history. Under that standard, Figueroa could

establish eligibility for special rule cancellation of removal by

showing: (1) a ten-year period of continuous physical presence in

the United States; (2) good moral character during that period;

and (3) that his removal would result in "exceptional and extremely

unusual hardship" to Figueroa or a qualifying relative.1 Pub. L.

No. 105-100, § 203, 111 Stat. 2160, 2198–99 (1997); 8 C.F.R.

§ 1240.66(c). In addition to eligibility, Figueroa was also

required to show that discretion should be exercised to grant him

relief. See 111 Stat. at 2198; 8 C.F.R. § 1240.64(a).

Figueroa and DHS stipulated that Figueroa had satisfied

the necessary period of continuous presence. The remaining

requirements were all contested at the hearing. Figueroa offered

his own testimony and that of Maria and his daughter, as well as

affidavits from two of his other children and several letters of

support from friends and coworkers.

The IJ denied Figueroa's application in a written order

issued in May 2019. The IJ described how Figueroa has lived in

the United States for thirty years with Maria, who has lawful

status. The IJ went on to find that Figueroa has worked during

that time and that the couple owns two properties for which

Figueroa manages the finances. The IJ also recognized that Maria

1We will occasionally refer to this final eligibility requirement as "the hardship standard."

- 4 - works, has health insurance, and plans to retire in a few years.

The IJ acknowledged that Figueroa's removal would pose

an emotional and economic hardship to Maria. Specifically, the IJ

noted that the "love is still there" despite Figueroa being

arrested on three occasions for indecent assault and battery.2 The

IJ also found that Maria had previously managed to pay her bills

when Figueroa was out of work for six months by relying on her own

income, income generated by their properties, and help from her

family.

The IJ further acknowledged that Figueroa's removal

would pose a hardship to Figueroa personally. The IJ noted that

Figueroa takes daily medication for high blood pressure, high

cholesterol, and heart problems, and that he claimed he would have

difficulty getting medical care in El Salvador. The IJ also took

note of the fact that Figueroa claimed he would be unable to find

work or housing in El Salvador and that his cousin had been killed

within three months of being removed from the United States to El

Salvador in 2017. The IJ did not make a credibility finding with

respect to Figueroa.

In the end, the IJ concluded that, although a "close

call," Figueroa had not met his burden of establishing exceptional

2 The arrests, which took place in 1997, 2003, and 2013, all involved allegations that Figueroa touched a woman on the breast or thigh while he was on the street or public transportation.

- 5 - and extremely unusual hardship to himself or Maria.3 The IJ also

held that, even if eligible for special rule cancellation of

removal, Figueroa did not merit a favorable exercise of discretion

because he "refus[ed] to take responsibility" for his repeated

arrests for indecent assault and battery. The IJ did not reach

the issue of whether Figueroa had established the requisite good

moral character.

Figueroa sought review with the Board of Immigration

Appeals (BIA), who dismissed his appeal with a written order issued

in March 2022. Citing several of its published decisions regarding

the hardship standard, see In re Monreal-Aguinaga, 23 I. & N. Dec.

56 (B.I.A. 2001); In re Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A.

2002); In re Gonzalez Recinas, 23 I. & N. Dec. 467 (B.I.A. 2002),

the BIA concluded that the IJ had correctly applied the standard.

With respect to financial hardship, the BIA explained that Figueroa

"has not met his burden of proving he and his wife would be unable

to secure employment or provide for their own basic needs after

[Figueroa] returns to El Salvador." And while the BIA deemed

itself "sympathetic" to Figueroa's concerns for his safety, it

reasoned that "the possibility of crime in El Salvador [does not]

meet[] or exceed[] the exceptional and extremely unusual hardship

3 All of Figueroa's children have legal status but are adults and therefore are no longer qualifying relatives for the purpose of special rule cancellation of removal under NACARA.

- 6 - standard." Having found that Figueroa was ineligible for special

rule cancellation of removal, the BIA declined to reach Figueroa's

challenge to the IJ's alternative determination that he was not

entitled to a favorable exercise of discretion.

B.

Figueroa timely petitioned this court for review. The

government initially claimed that we did not have jurisdiction to

hear Figueroa's case, arguing that 8 U.S.C. § 1252(a)(2)(B)(i)

precludes judicial review in this context. Appearing as amicus,

the American Civil Liberties Union also addressed the

jurisdictional issue, filing a brief joined by two of its

state-level affiliates that contested the government's claim and

that also asked us to clarify our precedents in this area. We

subsequently stayed the case in light of the Supreme Court's grant

of certiorari in Wilkinson v. Att'y Gen., No. 21-3166, 2022 WL

4298337 (3d Cir. Sept. 19, 2022), cert. granted sub nom. Wilkinson

v. Garland, 143 S. Ct. 2687 (2023), rev'd in part, vacated in part,

601 U.S. 209 (2024). Wilkinson now having been decided, this case

is ready for resolution.

II.

We start with the scope of our inquiry and our

jurisdiction to undertake it.

"Congress has sharply circumscribed judicial review of

- 7 - the discretionary-relief process." Patel v. Garland, 596 U.S.

328, 332 (2022). Specifically, Congress enacted in 1996 as part

of IIRIRA a provision that is now codified at 8 U.S.C.

§ 1252(a)(2)(B). See Pub. L. No. 104–208, Div. C, § 306, 110 Stat.

3009, 3009–607 (1996). That provision strips courts of

jurisdiction to review any "judgment," "decision," or "action"

regarding the denial of discretionary relief, with an exception

for asylum determinations.4 See Gonzalez-Ruano, 662 F.3d at 63

(explaining that special rule cancellation of removal under NACARA

is subject to § 1252(a)(2)(B)).

But "[t]his bar has an important qualification." Patel,

596 U.S. at 333. Namely, in response to the Supreme Court's

decision in INS v. St. Cyr, 533 U.S. 289 (2001), Congress approved

a provision that is now codified at § 1252(a)(2)(D), which restores

the jurisdiction of courts to consider "constitutional claims or

questions of law." See Guerrero-Lasprilla v. Barr, 589 U.S. 221,

231–33 (2020) (discussing this history).

For some time, interpretation of this statutory scheme

largely rested with the lower courts,5 leaving "unresolved" "many

4 IIRIRA also included a similar bar to judicial review of final orders of removal against noncitizens who are removable by reason of having committed certain criminal offenses. 110 Stat. at 3009–607 to –608. That provision is codified at 8 U.S.C. § 1252(a)(2)(C). See Nasrallah v. Barr, 590 U.S. 573, 576 (2020). 5 The primary exception was Kucana v. Holder, 558 U.S. 233 (2010), in which the Supreme Court "held that § 1252(a)(2)(B) 'barred court review of discretionary decisions only when Congress - 8 - questions surrounding the procedure for judicial review provided

in [§ 1252]." 14A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 3664 (4th ed. 2013). In recent years,

however, the Supreme Court has on multiple occasions turned its

attention to the jurisdictional provisions of § 1252(a)(2). Two

of those decisions are particularly salient for our purposes.

First, in Patel, the Supreme Court held that "questions

of fact underlying denials of discretionary relief are

unreviewable under both § 1252(a)(2)(B)(i) and § 1252(a)(2)(D)."

Wilkinson, 601 U.S. at 219 (citing Patel, 596 U.S. at 343, 347).

The noncitizen in the case was seeking discretionary adjustment of

status under § 1255(i). Patel, 596 U.S. at 333–34. The Court's

holding meant that he would not be able to obtain judicial review

of an IJ's determination that his testimony was not credible. Id.

at 335, 339. This was so even though that credibility

determination accordingly led the IJ to conclude that the

noncitizen was ineligible for relief. Id. at 335.

Then, in Wilkinson, the Supreme Court held that "[t]he

application of a statutory legal standard (like the exceptional

and extremely unusual hardship standard) to an established set of

itself set out the Attorney General's discretionary authority in the statute.'" Valerio-Ramirez v. Sessions, 882 F.3d 289, 293 (1st Cir. 2018) (quoting Kucana, 558 U.S. at 247); see also Mata v. Lynch, 576 U.S. 143, 146–47 (2015) (holding that courts have jurisdiction to review the BIA's refusal to exercise its sua sponte power to reopen cases).

- 9 - facts" is a "mixed question of law and fact" that is reviewable

under § 1252(a)(2)(D). 601 U.S. at 212; see also Guerrero-

Lasprilla, 589 U.S. at 225 (similar). The noncitizen in Wilkinson

was seeking discretionary cancellation of removal under

§ 1229b(b). 601 U.S. at 213. The Court's holding meant that he

would be able to obtain judicial review of the agency's

determination that the facts of his case failed to satisfy the

hardship standard. Id. at 215–16, 225. But the Supreme Court

emphasized that the facts underlying the agency's determination

remained unreviewable. Id. at 225 (first citing Guerrero-

Lasprilla, 589 U.S. at 234–35; then citing Patel, 596 U.S. at 339).

While we previously have acknowledged that whether

jurisdiction exists under § 1252(a)(2) can sometimes be ambiguous,

see Tacuri-Tacuri v. Garland, 998 F.3d 466, 472 (1st Cir. 2021),

it is clear that our cases which predate Patel and Wilkinson must

now be read in light of those decisions, see United States v.

Rodríguez, 527 F.3d 221, 225 (1st Cir. 2008). Thus, to the extent

that we previously may have characterized the agency's hardship

determination as an unreviewable "factual inquiry," see Tacuri-

Tacuri, 998 F.3d at 471 (citing Alvarado v. Holder, 743 F.3d 271,

275 (1st Cir. 2014)), those holdings have been abrogated.

Wilkinson instructs instead that "the application of the

exceptional and extremely unusual hardship standard to a given set

- 10 - of facts is reviewable as a question of law under § 1252(a)(2)(D)."

601 U.S. at 217.

Where do we look for that given set of established facts?

Figueroa seemingly would have us take account of anything that he

testified to in the proceeding before the IJ. For instance, he

urges us to consider that he would "suffer[] from . . . difficulty

getting medical care in El Salvador." But while Figueroa did

testify that "[t]here's a lot of poverty over there so it would be

very, very, very difficult" to receive treatment for his various

ailments if removed, the IJ made no factual finding regarding the

likelihood of Figueroa being able to obtain his medicine in El

Salvador. In essence then, Figueroa is asking that we take his

testimony as true despite the lack of a finding by the IJ that it

was. "A reviewing court is not bound, however, to accept a

petitioner's statements as fact whenever an IJ simply has not made

an express adverse credibility determination." Kho v. Keisler,

505 F.3d 50, 56 (1st Cir. 2007); see also Garland v. Ming Dai, 593

U.S. 357, 364, 372–73 (2021).

Figueroa otherwise maintains that he takes no issue with

the facts as found by the agency.6 We thus confine our analysis

Despite this insistence, Figueroa at times appears to ask 6

us to adopt facts that are directly contrary to the factual findings of the agency. For example, Figueroa claims that "there is no support system for [Maria] in the USA." But the IJ found that Maria managed to pay her bills in part by relying on her family when Figueroa was out of work for six months. Under Patel, - 11 - to those factual findings.7

III.

Assured of our jurisdiction and equipped with the

agency's factual findings, we turn to the issue of whether the

agency erred in concluding that Figueroa failed to establish that

his removal would result in "exceptional and extremely unusual

hardship" to either himself or Maria. Where, as here, "the BIA

adopts the IJ's decision but adds its own gloss, we 'review the

decisions of both the BIA and the IJ' together." Espinoza-Ochoa

v. Garland, 89 F.4th 222, 230 (1st Cir. 2023) (quoting Aldana-Ramos

v. Holder, 757 F.3d 9, 14 (1st Cir. 2014)). Our review is

deferential. See Wilkinson, 601 U.S. at 225 ("Because this mixed

question is primarily factual, . . . review is deferential.").8

Figueroa's contention is that the agency "erred . . . in

the application of the seminal cases on exceptional and extremely

unusual hardship." Although he counts both BIA precedent and

decisions of the courts of appeal among those cases, he makes no

we have no jurisdiction to review that factual finding. 596 U.S. at 331. 7 We save for another day the question of whether, consistent with § 1252(a)(2)(B) and Patel, a reviewing court may consider historical facts from the administrative record even if they are not expressly included in the agency's factual findings. 8 We need not decide here precisely what deferential standard of review should govern because we reach the same conclusion regardless. See Singh v. Rosen, 984 F.3d 1142, 1154 (6th Cir. 2021) (considering various deferential standards of review).

- 12 - effort to develop any argument based on the latter. We thus

consider only Figueroa's argument that the BIA misapplied its own

precedent to his case.9 See Mendez-Barrera v. Holder, 602 F.3d

21, 26 (1st Cir. 2010) ("An administrative agency must respect its

own precedent, and cannot change it arbitrarily and without

explanation, from case to case."); United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory

manner, unaccompanied by some effort at developed argumentation,

are deemed waived.").

Figueroa focuses on Maria. He argues that his removal

would subject her to the requisite hardship because she is

dependent on him for financial and emotional support. But "it has

long been settled that economic detriment alone is insufficient to

support even a finding of extreme hardship," Andazola-Rivas, 23 I.

& N. Dec. at 323, let alone exceptional and extremely unusual

hardship. And Figueroa offers nothing in response to the IJ's

observation that "[w]hen [Figueroa] was out of work for six

months[,] his wife managed with her income, income generated by

[their] properties, and help from her family." With respect to

9The government does not dispute that these precedents apply even though they involve the hardship standard under 8 U.S.C. § 1229b rather than under NACARA. We note, however, that the two inquiries differ in at least one respect: under NACARA, hardship to the noncitizen personally is considered, see 111 Stat. at 2198-99; 8 C.F.R. § 1240.66(c)(4), whereas under § 1229b, only hardship to the noncitizen's qualifying relatives is considered, see 8 U.S.C. § 1229b(b)(1)(D).

- 13 - emotional support too, Figueroa has failed to establish that the

agency erred in concluding that this hardship would not be

"substantially beyond the ordinary hardship that would be expected

when a close family member leaves this country." Monreal-Aguinaga,

23 I. & N. Dec. at 62 (internal quotations omitted).

Figueroa also argues that the agency erred in concluding

that removal would not pose an exceptional and extremely unusual

hardship to him personally. He primarily takes issue with the

weight that the agency assigned to his concerns for his own safety

in El Salvador, particularly because his cousin was killed within

three months of being removed there from the United States in 2017.

The BIA has said, however, that "adverse country conditions in the

country of return are [a] factor[] to consider . . . but generally

will be insufficient in themselves to support a finding of

exceptional and extremely unusual hardship." Id. at 63–64. Here,

Figueroa points to no facts that lead us to find error in the

agency's conclusion that the regrettable death of his cousin does

not demonstrate that he will face exceptional and extremely unusual

hardship if removed.

Figueroa's remaining arguments regarding the hardship

standard as applied to him are equally unavailing. He highlights

his testimony on what he fears will befall him if removed to El

Salvador, but as we have already explained, we cannot take

Figueroa's testimony as conclusive as to the likelihood of future

- 14 - events in these circumstances. See Kho, 505 F.3d at 56; Ming Dai,

593 U.S. at 364, 372–73. In any event, Figueroa offers no response

to the BIA's observation that he had "not met his burden of proving

he . . . would be unable to secure employment or provide for [his]

own basic needs" upon removal. Figueroa's case thus stands in

contrast to Gonzalez Recinas, in which the BIA found the hardship

standard satisfied by a "close margin" for four children whose

single mother faced removal to Mexico, where she had no close

family and would be solely responsible for the four children and

their two siblings. 23 I. & N. Dec. at 471.

Finally, Figueroa calls attention to the more than three

decades that he has spent in the United States. While we recognize

the length of his residency in this country, we also note that it

does not particularly distinguish Figueroa from other applicants

for the relief he seeks, as special rule cancellation of removal

under NACARA is generally available only to those who entered the

country before the early 1990s. See 8 C.F.R. § 1240.61(a).

Similarly, Monreal-Aguinaga, in which the BIA ordered the removal

of a noncitizen who had been in this country for more than twenty

years, see 23 I. & N. Dec. at 57, underscores that the passage of

time will not always guarantee a noncitizen relief.

***

The petition for review is denied.

- 15 -