Gallardo Valdez v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 24, 2023
• Docket: 22-9535
• Status: Unpublished

Opinion

Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 24, 2023 _________________________________ Christopher M. Wolpert Clerk of Court JOSE ANTONIO GALLARDO VALDEZ,

Petitioner,

v. No. 22-9535 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges. _________________________________

An Immigration Judge (IJ) denied petitioner Jose Antonio Gallardo Valdez’s

application for cancellation of removal and granted him voluntary departure. The

Board of Immigration Appeals (Board) dismissed his appeal. Petitioner has filed a

petition for review. We dismiss the petition in part for lack of jurisdiction and,

exercising jurisdiction under 8 U.S.C. § 1252(a)(1), deny the remainder of 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 2

I. BACKGROUND

Petitioner is a native and citizen of Mexico. In 2018, the Department of

Homeland Security (DHS) initiated removal proceedings, alleging he was removable

as a noncitizen who entered the United States at an unauthorized time and place.

Petitioner conceded removability and applied for cancellation of removal under

8 U.S.C. § 1229b(b), claiming his removal would cause exceptional and extremely

unusual hardship to his eleven-year-old daughter, I.A., who is a United States

citizen.1

At a hearing before the IJ, Petitioner testified that I.A. was intelligent, a good

student, had many friends, does not require special education classes or tutoring,

spoke Spanish at home, and has no medical conditions. Petitioner also testified,

however, that when DHS detained him for a month, I.A. became very sad and could

not eat, and he was unsure how I.A. would react to a long-term separation. He

explained that if he was removed, I.A. would move to Mexico with him because he is

the family’s primary provider. He added that five of his brothers and four of his

other children live in Mexico, and upon removal he would initially live in the city of

Durango, where most of them lived.

Petitioner’s wife, Maria, testified before the IJ. She stated she has been with

Petitioner for thirty-five years and the two live together with I.A. and their

1 The other prerequisites for cancellation (ten years of physical presence in the United States, good moral character, and the lack of a disqualifying conviction, see 8 U.S.C. § 1229b(b)(1)(A)–(C)) are not at issue in this case. 2 Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 3

eighteen-year-old daughter. Maria has no legal status in the United States. I.A. is a

very good student, speaks some Spanish, can read and write Spanish, and is in a

Spanish class. After Petitioner was detained, I.A. became very sad, withdrawn, and

distant, and Maria started working part-time as a dishwasher. If Petitioner is

removed, she would remain in the United States, but she would have to work more,

and her eighteen-year-old daughter might also have to work while continuing her

studies. However, if Maria and I.A. were struggling, they would also move to

Durango, where Maria’s parents live. Although Maria has two brothers in Colorado,

they are unable to help her. In Mexico, I.A. might not be put in the same grade

because she would have to improve her Spanish, school was more expensive, and it

would be harder for her to move on past high school. Maria said she was concerned

about crime in Durango and added that I.A. has never been to Mexico.

The parties stipulated that I.A. would testify consistent with her signed

statement, where she praised Petitioner as a father, stated she would struggle to

afford college without his assistance, and could not visit Durango, where Petitioner

likely would live, because it is dangerous and a two-day bus ride from her home here.

The IJ denied cancellation. After finding Petitioner and Maria credible, the IJ

found that if Petitioner was removed, I.A. would experience some sadness, related

emotional disturbances, and financial limitations, but such hardships are typical of

what happens “when a close family member leaves the household and the country,”

not the sort of “exceptional and extremely unusual hardship” the law requires.

R. at 90. The IJ also found the financial impact of losing Petitioner’s income could

3 Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 4

be offset by Maria working more and by her eighteen-year-old daughter’s efforts to

work. The IJ further found I.A. would not experience the requisite hardship if she

moved to Mexico because of the large family network there, particularly in Durango,

and I.A. speaks, reads, and writes Spanish with some proficiency, although “it is

likely she would have to work hard to improve her fluency.” Id. at 91. Any

limitations on educational and financial opportunities in Mexico, the IJ said,

including fear of criminal elements, were neither exceptional nor extremely unusual

in this case.

Petitioner appealed to the Board, arguing the IJ committed a legal error by

applying only In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001), to the facts

at issue and ignoring two later cases, In re Andazola-Rivas, 23 I. & N. Dec. 319

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

(together, “three cases”). He also argued he had demonstrated his removal would

result in exceptional and extremely unusual hardship to I.A.

The Board dismissed Petitioner’s appeal. Adopting and affirming the IJ’s

decision, the Board cited the three cases in support of its agreement with the IJ’s

reasoning that Petitioner failed to show the required level of hardship. The Board

wrote “separately” to reject Petitioner’s argument that the IJ ignored relevant case

law. R. at 3. The Board explained that although the IJ had not addressed all three

cases “in the body of his decision,” the Board could identify no clear factual error or

any legal error in the IJ’s determination that Petitioner had not demonstrated his

removal would result in exceptional and extremely unusual hardship to I.A. Id. at 4.

4 Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 5

II. DISCUSSION

Because a single Board member issued a brief order affirming the IJ’s

decision, we review the Board’s decision and any parts of the IJ’s decision the Board

relied on. See Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir. 2010). “We lack

jurisdiction to review the Board’s discretionary decision, based on the facts of the

case, whether [I.A.] will suffer an exceptional and extremely unusual hardship.”

Galeano-Romero v. Barr, 968 F.3d 1176, 1182–83 (10th Cir. 2020) (discussing

8 U.S.C. § 1252(a)(2)(B)(i)). But under “§ 1252(a)(2)(D), we retain jurisdiction over

questions of law that arise from the Board’s hardship determination.” Id. at 1184.

We review questions of law de novo. Dallakoti, 619 F.3d at 1267.

Petitioner contends the IJ “ignored relevant case law because he did not

analyze and apply” In re Andazola-Rivas or In re Gonzalez Recinas to the facts.

Pet’r’s Opening Br. at 12. Petitioner argues that although the IJ’s decision

incorporated a written addendum containing statements of law,2 the IJ did not

meaningfully apply the relevant caselaw. Petitioner contends the Board did not

adequately account for this “omission” and therefore its decision was a

“misapplication of the legal standard for exceptional and extremely unusual

hardship.” Id. at 11.

“[W]e have jurisdiction to review a claim that the Board departed from its own

adopted hardship standard, by ignoring it or favoring some other inapplicable

2 The addendum cited all three cases. See R. at 95. 5 Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 6

standard.” Galeano-Romero, 968 F.3d at 1184. But Petitioner’s argument overlooks

that the Board’s concurrence in the IJ’s decision was based on the Board’s record

review and consideration of all three cases, and in Petitioner’s case, it is the Board’s

decision that we review. As the Board explained in In re Gonzalez Recinas, “any

hardship case ultimately succeeds or fails on its own merits and on the particular

facts presented,” but In re Andazola-Rivas and In re Monreal-Aguinaga “are the

starting points for any analysis of exceptional and extremely unusual hardship.”

23 I. & N. Dec. at 469. Because the Board considered all three cases, it did not

ignore its own applicable standard or favor an inapplicable standard.

To the extent Petitioner argues the Board misapplied the legal standards set out

in the three cases to the facts of his case or should have compared the facts of those

cases with the facts of his, we lack jurisdiction. We have held we lack jurisdiction if

“the Board acknowledges its standard and exercises its discretion within the bounds

of its precedents’ cabining of such discretion.” Galeano-Romero, 968 F.3d at 1183.

The Board did so here. By citing the three cases, the Board identified the proper

standard. And the Board concurred in the IJ’s denial of cancellation for the reasons

the IJ articulated. Those reasons were based on consideration of relevant hardship

factors drawn from the three cases—financial burden, family support in Mexico, a

child’s familiarity with the Spanish language, poor economic conditions in Mexico,

and reduced educational opportunities in Mexico. See In re Gonzalez Recinas,

23 I. & N. Dec. at 470–71 (listing “significant” hardship factors as cancellation

applicant’s children’s ability to speak, read, and write Spanish; financial and

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emotional difficulties arising from removal of provider of support; and family

support in Mexico); In re Andazola-Rivas, 23 I. & N. Dec. at 323–24 (considering

economic consequences, educational opportunities, family help in Mexico, and

ability of non-petitioning parent to provide support); In re Monreal-Aguinaga,

23 I. & N. Dec. at 63–64 (listing relevant considerations as “the ages, health, and

circumstances of qualifying . . . United States citizen relatives,” such as “a qualifying

child with very serious health issues, or compelling special needs in school,” and

“[a] lower standard of living or adverse country conditions in the country of return”).

Because the Board acknowledged its controlling standards and exercised its

discretion within the bounds of those standards, we lack jurisdiction to consider

Petitioner’s argument despite his attempt to frame it “as a challenge to the application

of a legal standard to established facts.” Galeano-Romero, 968 F.3d at 1184.

III. CONCLUSION

The petition for review is dismissed in part and denied in part.

Entered for the Court

Timothy M. Tymkovich Circuit Judge