Gutierrez Cervantes v. Garland

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 16, 2025
• Docket: 24-60264
• Status: Unpublished

Opinion

Case: 24-60264 Document: 42-1 Page: 1 Date Filed: 01/16/2025

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED January 16, 2025 No. 24-60264 Lyle W. Cayce Summary Calendar Clerk ____________

Raul Gutierrez Cervantes,

Petitioner,

versus

Merrick Garland, U.S. Attorney General,

Respondent. ______________________________

Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205 912 555 ______________________________

Before Higginbotham, Jones, and Oldham, Circuit Judges. Per Curiam: * Raul Gutierrez Cervantes, a native and citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (BIA) upholding the denial of cancellation of removal under 8 U.S.C. § 1229b(b)(1). The BIA affirmed the immigration judge’s determination that Gutierrez Cervantes was ineligible for cancellation of removal because he did not satisfy the

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-60264 Document: 42-1 Page: 2 Date Filed: 01/16/2025

No. 24-60264

hardship requirement under § 1229b(b)(1)(D) as to his three qualifying relatives: two of his children and his mother. In reviewing the BIA’s decision we consider the immigration judge’s decision only to the extent it influenced the BIA. See Agustin-Matias v. Garland, 48 F.4th 600, 601 (5th Cir. 2022). Pursuant to 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to review the factual findings underlying the BIA’s conclusion on the issue of hardship. Wilkinson v. Garland, 601 U.S. 209, 225 (2024). However, whether an established set of facts satisfies the legal standard of exceptional and extremely unusual hardship is a mixed question of fact and law that is a reviewable legal question pursuant to § 1252(a)(2)(D). Id. at 216-17, 225. Gutierrez Cervantes argues here that he made the requisite showing of hardship because if removed to Mexico, he would have difficulty finding employment; his children would lose educational opportunities; the health of his wheelchair-bound elderly mother would be detrimentally affected; he had not accumulated any significant assets to assist him in transitioning in Mexico; there would be concerns for the children in Mexico due to its worse country conditions; and he does not have an alternative means for immigrating to the United States. He contends that his case is similar to Matter of Gonzalez Recinas, 23 I.&N. Dec. 467, 469-71 (BIA 2002), in which the BIA found that the hardship standard was met. The BIA indicated that Gonzalez Recinas represented “the outer limit of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard will be met.” Gonzalez Recinas, 23 I.&N. Dec. at 470. The hardship evidence here falls outside of those limits. The only children at issue here are two minors who largely understand Spanish. Gutierrez Cervantes is not a single parent, has four siblings in Mexico, and has three other siblings in the United States who care for and support his

2 Case: 24-60264 Document: 42-1 Page: 3 Date Filed: 01/16/2025

mother. Under deferential review, we uphold the agency’s determination that the evidence in this case fails to satisfy the standard of exceptional and extremely unusual hardship. See § 1229b(b)(1)(D). The petition for review is DENIED.