22-6319-ag Garcia Carrera v. Garland
United States Court of Appeals for the Second Circuit August Term, 2023
(Submitted: November 1, 2023 Decided: July 3, 2024)
Docket No. 22-6319-ag
_____________________________________
MIGUEL ANGEL GARCIA CARRERA,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
Before:
LOHIER, NARDINI, and ROBINSON, Circuit Judges.
Petitioner Miguel Angel Garcia Carrera is a nonpermanent resident and a native and citizen of Mexico. He seeks review of a June 6, 2022 decision of the Board of Immigration Appeals affirming a July 16, 2019 decision of an Immigration Judge denying his application for cancellation of removal. Matter of Garcia Carrera, No. A205 308 075 (B.I.A. June 6, 2022), aff’g No. A205 308 075 (Immig. Ct. N.Y.C. July 16, 2019). Garcia Carrera argues that he is eligible for cancellation of removal because his removal would cause exceptional and extremely unusual hardship to his daughter, who is a citizen of the United States. The agency concluded that the hardships his daughter might experience were not “exceptional” and “extremely unusual” as required under 8 U.S.C. § 1229b(b)(1)(D). Because the agency did not err in denying Garcia Carrera’s application for removal, the petition for review is DENIED.
Miguel Angel Garcia Carrera, pro se, Middletown, NY, for Petitioner.
Brian M. Boynton, Principal Deputy Assistant Attorney General; Sarah A. Byrd, Song Park, Senior Litigation Counsel; Robert P. Coleman III, Trial Attorney, James A. Hurley, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.
PER CURIAM:
Miguel Angel Garcia Carrera, a native and citizen of Mexico, is a
nonpermanent resident who is proceeding on appeal without counsel. After the
Department of Homeland Security placed him in removal proceedings for
entering the United States without inspection, Garcia Carrera filed an application
for cancellation of removal on the basis that his removal would cause exceptional
and extremely unusual hardship to his daughter. The Board of Immigration
Appeals (BIA) affirmed the decision of the Immigration Judge (IJ) denying
Garcia Carrera’s application. The agency concluded that the hardships Garcia
Carrera’s daughter might experience were not “exceptional” and “extremely 2 unusual” as required under 8 U.S.C. § 1229b(b)(1)(D). Garcia Carrera then
appealed to this Court, arguing that the agency mischaracterized and overlooked
evidence that his removal would cause his daughter, a citizen of the United
States, to suffer exceptional and extremely unusual hardship.
Initially, the Government contended that we lacked jurisdiction to review
Garcia Carrera’s claim because the hardship determination is committed to
agency discretion by law. Following the Supreme Court’s decision in Wilkinson
v. Garland, 601 U.S. 209 (2024), however, the Government concedes that we have
jurisdiction to review Garcia Carrera’s claim. The Government nonetheless
maintains that the agency did not err in denying Garcia Carrera’s application for
removal. Because we have authority to review the agency’s hardship
determination and because the agency did not err in concluding that Garcia
Carrera failed to demonstrate the requisite hardship, we DENY the petition.
BACKGROUND
Garcia Carrera illegally entered the United States in 2002. He briefly
returned to Mexico for two months in 2005 but has remained in the United States
since he reentered later that year. In 2012, following his arrest for driving while
intoxicated, the Department of Homeland Security placed him in removal
3 proceedings for entering without inspection. He conceded removability and
applied for cancellation of removal. Garcia Carrera alleged that his removal
would cause his daughter, a United States citizen who was nine years old at the
time of his hearing, to suffer “exceptional and extremely unusual hardship.”
8 U.S.C. § 1229b(b)(1)(D).
After a 2017 merits hearing, the IJ denied Garcia Carrera’s petition for
cancellation of removal. The IJ concluded that Garcia Carrera had not
demonstrated the requisite hardship to his daughter because he adduced no
evidence that she had serious mental or physical health conditions and failed to
show that his return to Mexico would cause exceptional emotional hardship
beyond the “normal emotional impacts . . . faced by almost every family in a
position of being required to depart the United States.” CAR at 59‒64. The BIA
agreed with the IJ’s determination that Garcia Carrera failed to establish the
requisite hardship because his daughter, who would remain in the United States
with her mother, had no serious physical or mental disabilities. Garcia Carrera,
proceeding without counsel, then appealed to this Court.
While the appeal was pending, the Supreme Court granted certiorari in
Wilkinson v. Garland, 601 U.S. 209 (2024) to address whether the agency’s
4 exceptional and extremely unusual hardship determination “is a mixed question
of law and fact reviewable under [8 U.S.C.] § 1252(a)(2)(D) or whether this
determination is a discretionary judgment call that is unreviewable under
§ 1252(a)(2)(B)(i).” Wilkinson, 601 U.S. at 217 (cleaned up). We then issued an
order holding this case in abeyance pending the Supreme Court’s decision in
Wilkinson and requested supplemental briefing from the parties. On March 19,
2024, the Supreme Court issued its decision.
DISCUSSION
We consider both the IJ’s and the BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). A nonpermanent resident may have removal cancelled by, in relevant
part, establishing “that removal would result in exceptional and extremely
unusual hardship to [a] spouse, parent, or child, who is a citizen of the United
States or [a noncitizen] lawfully admitted for permanent residence.” 8 U.S.C.
§ 1229b(b)(1)(D). The hardship to a qualifying relative “must be substantially
beyond the ordinary hardship that would be expected when a close family
member leaves this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62
(B.I.A. 2001) (quotation marks omitted). When assessing hardship, the agency
5 considers “the ages, health, and circumstances of qualifying . . . relatives,” id. at
63, and must consider the cumulative effect of those hardships, see In re Gonzalez
Recinas, 23 I. & N. Dec. 467, 472 (B.I.A. 2002).
Our jurisdiction to review the agency’s denial of cancellation of removal is
limited to constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(B)(i),
(D). Questions of law include “[t]he application of a statutory legal standard
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22-6319-ag Garcia Carrera v. Garland
United States Court of Appeals for the Second Circuit August Term, 2023
(Submitted: November 1, 2023 Decided: July 3, 2024)
Docket No. 22-6319-ag
_____________________________________
MIGUEL ANGEL GARCIA CARRERA,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
Before:
LOHIER, NARDINI, and ROBINSON, Circuit Judges.
Petitioner Miguel Angel Garcia Carrera is a nonpermanent resident and a native and citizen of Mexico. He seeks review of a June 6, 2022 decision of the Board of Immigration Appeals affirming a July 16, 2019 decision of an Immigration Judge denying his application for cancellation of removal. Matter of Garcia Carrera, No. A205 308 075 (B.I.A. June 6, 2022), aff’g No. A205 308 075 (Immig. Ct. N.Y.C. July 16, 2019). Garcia Carrera argues that he is eligible for cancellation of removal because his removal would cause exceptional and extremely unusual hardship to his daughter, who is a citizen of the United States. The agency concluded that the hardships his daughter might experience were not “exceptional” and “extremely unusual” as required under 8 U.S.C. § 1229b(b)(1)(D). Because the agency did not err in denying Garcia Carrera’s application for removal, the petition for review is DENIED.
Miguel Angel Garcia Carrera, pro se, Middletown, NY, for Petitioner.
Brian M. Boynton, Principal Deputy Assistant Attorney General; Sarah A. Byrd, Song Park, Senior Litigation Counsel; Robert P. Coleman III, Trial Attorney, James A. Hurley, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.
PER CURIAM:
Miguel Angel Garcia Carrera, a native and citizen of Mexico, is a
nonpermanent resident who is proceeding on appeal without counsel. After the
Department of Homeland Security placed him in removal proceedings for
entering the United States without inspection, Garcia Carrera filed an application
for cancellation of removal on the basis that his removal would cause exceptional
and extremely unusual hardship to his daughter. The Board of Immigration
Appeals (BIA) affirmed the decision of the Immigration Judge (IJ) denying
Garcia Carrera’s application. The agency concluded that the hardships Garcia
Carrera’s daughter might experience were not “exceptional” and “extremely 2 unusual” as required under 8 U.S.C. § 1229b(b)(1)(D). Garcia Carrera then
appealed to this Court, arguing that the agency mischaracterized and overlooked
evidence that his removal would cause his daughter, a citizen of the United
States, to suffer exceptional and extremely unusual hardship.
Initially, the Government contended that we lacked jurisdiction to review
Garcia Carrera’s claim because the hardship determination is committed to
agency discretion by law. Following the Supreme Court’s decision in Wilkinson
v. Garland, 601 U.S. 209 (2024), however, the Government concedes that we have
jurisdiction to review Garcia Carrera’s claim. The Government nonetheless
maintains that the agency did not err in denying Garcia Carrera’s application for
removal. Because we have authority to review the agency’s hardship
determination and because the agency did not err in concluding that Garcia
Carrera failed to demonstrate the requisite hardship, we DENY the petition.
BACKGROUND
Garcia Carrera illegally entered the United States in 2002. He briefly
returned to Mexico for two months in 2005 but has remained in the United States
since he reentered later that year. In 2012, following his arrest for driving while
intoxicated, the Department of Homeland Security placed him in removal
3 proceedings for entering without inspection. He conceded removability and
applied for cancellation of removal. Garcia Carrera alleged that his removal
would cause his daughter, a United States citizen who was nine years old at the
time of his hearing, to suffer “exceptional and extremely unusual hardship.”
8 U.S.C. § 1229b(b)(1)(D).
After a 2017 merits hearing, the IJ denied Garcia Carrera’s petition for
cancellation of removal. The IJ concluded that Garcia Carrera had not
demonstrated the requisite hardship to his daughter because he adduced no
evidence that she had serious mental or physical health conditions and failed to
show that his return to Mexico would cause exceptional emotional hardship
beyond the “normal emotional impacts . . . faced by almost every family in a
position of being required to depart the United States.” CAR at 59‒64. The BIA
agreed with the IJ’s determination that Garcia Carrera failed to establish the
requisite hardship because his daughter, who would remain in the United States
with her mother, had no serious physical or mental disabilities. Garcia Carrera,
proceeding without counsel, then appealed to this Court.
While the appeal was pending, the Supreme Court granted certiorari in
Wilkinson v. Garland, 601 U.S. 209 (2024) to address whether the agency’s
4 exceptional and extremely unusual hardship determination “is a mixed question
of law and fact reviewable under [8 U.S.C.] § 1252(a)(2)(D) or whether this
determination is a discretionary judgment call that is unreviewable under
§ 1252(a)(2)(B)(i).” Wilkinson, 601 U.S. at 217 (cleaned up). We then issued an
order holding this case in abeyance pending the Supreme Court’s decision in
Wilkinson and requested supplemental briefing from the parties. On March 19,
2024, the Supreme Court issued its decision.
DISCUSSION
We consider both the IJ’s and the BIA’s decisions “for the sake of
completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006). A nonpermanent resident may have removal cancelled by, in relevant
part, establishing “that removal would result in exceptional and extremely
unusual hardship to [a] spouse, parent, or child, who is a citizen of the United
States or [a noncitizen] lawfully admitted for permanent residence.” 8 U.S.C.
§ 1229b(b)(1)(D). The hardship to a qualifying relative “must be substantially
beyond the ordinary hardship that would be expected when a close family
member leaves this country.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 62
(B.I.A. 2001) (quotation marks omitted). When assessing hardship, the agency
5 considers “the ages, health, and circumstances of qualifying . . . relatives,” id. at
63, and must consider the cumulative effect of those hardships, see In re Gonzalez
Recinas, 23 I. & N. Dec. 467, 472 (B.I.A. 2002).
Our jurisdiction to review the agency’s denial of cancellation of removal is
limited to constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(B)(i),
(D). Questions of law include “[t]he application of a statutory legal standard
(like the exceptional and extremely unusual hardship standard) to an established
set of facts.” Wilkinson, 601 U.S. at 212. We review questions of law de novo. See
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
Because it is now clear that Courts of Appeals have jurisdiction to review
the agency’s exceptional and extremely unusual hardship determination, see
Wilkinson, 601 U.S. at 212, we address the merits of Garcia Carrera’s claims. He
argues that the agency mischaracterized and overlooked evidence that his
removal would cause exceptional and extremely unusual hardship to his
daughter. He also argues that the agency did not sufficiently consider his
daughter’s mental health conditions, the seriousness of those conditions, or the
cumulative effect of the hardships she endured. We are not persuaded.
6 As an initial matter, the IJ correctly stated the applicable legal standards.
See In re Monreal-Aguinaga, 23 I. & N. Dec. at 62–63. The IJ addressed the
hardships that Garcia Carrera claimed his daughter would suffer, and there is no
indication that the IJ failed to consider other relevant evidence. See Xiao Ji Chen v.
U.S. Dep’t of Just., 471 F.3d 315, 336 n.17 (2d Cir. 2006) (“[W]e presume that an IJ
has taken into account all of the evidence before [her], unless the record
compellingly suggests otherwise.”). The IJ also considered Garcia Carrera’s
testimony and a report from the psychotherapist who had examined his
daughter. Garcia Carrera insists that the agency focused only on his daughter’s
current condition and failed to consider the risk that her condition could worsen
or that she could face future hardships triggered by his removal. But the BIA
acknowledged Garcia Carrera’s argument that his daughter’s mental health
could worsen and simply determined that even these potential hardships were
not “exceptional and extremely unusual.” 8 U.S.C. § 1229b(b)(1)(D).
On this record, we find no error in the agency’s conclusion that the
established facts did not demonstrate the requisite hardship. See In re Monreal-
Aguinaga, 23 I. & N. Dec. at 62
7 CONCLUSION
We have considered Garcia Carrera’s remaining arguments and conclude
that they are without merit. For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and stays
VACATED.