Herrera v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 2, 2022
• Docket: 21-9596
• Status: Unpublished

Opinion

Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 2, 2022 _________________________________ Christopher M. Wolpert Clerk of Court GERSON REYNOSO HERRERA,

Petitioner,

v. No. 21-9596 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

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

The Board of Immigration Appeals (Board or BIA) adopted and affirmed an

Immigration Judge’s (IJ) order denying Gerson Reynoso Herrera’s application for

cancellation of removal. Mr. Herrera has filed a petition for review. We dismiss the

petition in part for lack of jurisdiction and, to the extent we have jurisdiction under

8 U.S.C. § 1252(a), deny the remainder of the petition.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 2

I. Background

Mr. Herrera is a native and citizen of Mexico who entered the United States

without admission or inspection in 1998 or 2000. In 2008, the Department of

Homeland Security served him a Notice to Appear charging him as removable under

8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without being

admitted or paroled. Mr. Herrera conceded removability as charged and initially

applied for an adjustment of status based on his marriage to a U.S. citizen. He later

abandoned that application after learning there was a bar to adjustment—Mr. Herrera

had reentered the United States in late 2004 or early 2005 falsely claiming to be a

U.S. citizen by presenting a United States birth certificate belonging to someone else.

Mr. Herrera instead applied for cancellation of removal. After a hearing, the IJ

denied cancellation, finding Mr. Herrera failed to demonstrate his removal would

cause exceptional and extremely unusual hardship to his U.S.-citizen wife, see

8 U.S.C. § 1229b(b)(1)(D) (requiring a cancellation applicant to establish, among

other things, “that removal would result in exceptional and extremely unusual

hardship to the alien’s spouse, parent, or child, who is a citizen of the United States

or an alien lawfully admitted for permanent residence”).

Mr. Herrera appealed that decision to the Board, arguing the IJ failed to

consider the effect his wife’s age and her long residency in the United States had on

her chances for employment in Mexico and the risk of returning to her hometown

there. He also argued the IJ failed to aggregate the factors relevant to the hardship

determination and failed to properly acknowledge which factors the IJ considered

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other than an economic analysis. The Board adopted and affirmed the IJ’s decision.

Mr. Herrera now seeks review in this court.

II. Discussion

A. The BIA did not apply the wrong standard of review

Mr. Herrera first argues the Board applied the wrong standard of review when

it determined his “disagreement with the ultimate manner in which the [IJ] weighed

those claims and evidence [of age discrimination, crime, and financial hardship] is

not sufficient to establish error in the [IJ’s] decision,” R., Vol. 1 at 3. Mr. Herrera

asserts the reference to “error” indicates the Board reviewed the IJ’s decision only for

clear error, a standard that applies to factual determinations. He claims that because

the underlying facts were not in dispute, a de novo standard of review applied to the

issue on appeal—whether the IJ erred in weighing the facts relevant to the hardship

determination. See 8 C.F.R. § 1003.1(d)(3)(i)-(ii) (Board reviews an IJ’s factual

findings for clear error and “questions of law, discretion, and judgment and all other

issues . . . de novo”); In re Gamero Perez, 25 I. & N. Dec. 164, 165 (B.I.A. 2010)

(applying de novo review to determination of hardship for cancellation purposes).

Cancellation is a form of relief from removal under 8 U.S.C. § 1229b. By

statute, “no court shall have jurisdiction to review . . . any judgment regarding the

granting of relief under section . . . 1229b,” 8 U.S.C. § 1252(a)(2)(B)(i), except for

“constitutional claims” and “questions of law,” § 1252(a)(2)(D). Whether the Board

applied an incorrect standard of review to the denial of cancellation is a question of

law over which we have jurisdiction. See Galeano-Romero v. Barr, 968 F.3d 1176,

3 Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 4

1184 (10th Cir. 2020) (“[W]e have jurisdiction over a claim that the Board applied

the incorrect standard of review to an IJ’s factual determinations” concerning

cancellation.).

We review questions of law de novo. Martinez-Perez v. Barr, 947 F.3d 1273,

1277 (10th Cir. 2020). So doing, we disagree with Mr. Herrera’s reading of the

Board’s decision. The Board adopted and affirmed the IJ’s decision pursuant to

In re Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994). In re Burbano provides that even

though the Board must review an IJ’s discretionary determination using its “own

independent judgment,” id. at 873, that “independent review authority does not

preclude the Board from adopting or affirming a decision of the immigration judge,

in whole or in part, when [the Board is] in agreement with the reasoning and result of

that decision,” id. at 874. In that circumstance, “the Board’s final decision may be

rendered in a summary fashion.” Id. That “does not mean,” however, the Board has

“conducted an abbreviated review of the record” or “failed to exercise [its] own

discretion.” Id. “Rather, it is simply a statement that the Board’s conclusions upon

review of the record coincide with those which the immigration judge articulated in

his or her decision.” Id.

Viewed through the lens of In re Burbano, and in light of the Board’s

acknowledgment of the different standards of review set out in 8 C.F.R.

§ 1003.1(d)(3)(i) and (ii), see R., Vol. I at 3, we decline to read the Board’s

summarization of its agreement with the IJ’s decision and its statement that

Mr. Herrera’s arguments were insufficient “to establish error in the [IJ’s] decision,”

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id., as a failure to fulfill its obligation to review the hardship determination de novo.

See Batalova v. Ashcroft, 355 F.3d 1246, 1252 (10th Cir. 2004) (“Absent any

indication to the contrary, we presume BIA members do their job thoroughly.”). We

therefore reject Mr. Herrera’s argument.

B. Mr. Herrera failed to exhaust his In re Gonzalez Recinas argument

Mr. Herrera next contends the IJ and the Board departed from the agency’s

hardship standard by not considering that his false claim to U.S. citizenship

permanently bars him from getting an immigrant visa to return to the United States

after removal.1 He bases this argument on In re Gonzalez Recinas, 23 I. & N. Dec.

467 (B.I.A. 2002). In that case, the Board emphasized the importance of considering

how long a noncitizen would be prevented from returning to the United States when

evaluating the hardship to a qualifying relative. See id. at 472.

“[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

standard.” Galeano-Romero, 968 F.3d at 1184. However, Mr. Herrera never

advanced his In re Gonzalez Recinas argument before either the IJ or the BIA. And

although the IJ cited In re Gonzalez Recinas, she did so only for a reason related to

those arguments Mr. Herrera did advance—that “hardship is ‘significant,’ where a

parent is solely responsible for his children’s care and his removal would result in a

1 The relevant statutory provision states: “Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this chapter . . . or any other Federal or State law is inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). 5 Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 6

serious financial detriment to his children,” R., Vol. 1 at 43. Mr. Herrera claims this

general reliance on In re Gonzalez Recinas means the IJ and BIA should have

addressed sua sponte the temporal element he now presses. But he cites no authority

for this proposition, and we disagree with it. We instead adhere to our general

exhaustion jurisprudence and conclude that because Mr. Herrera failed to exhaust this

argument, we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1) (“A court

may review a final order of removal only if . . . the alien has exhausted all

administrative remedies available to the alien as of right[.]”); Garcia-Carbajal v.

Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (“To satisfy § 1252(d)(1), an alien

must present the same specific legal theory to the BIA before he or she may advance

it in court.”).

C. We lack jurisdiction to review the hardship determination

Finally, Mr. Herrera asks us to undertake de novo review of whether he

established that his removal to Mexico would result in exceptional and extremely

unusual hardship to his wife, giving particular consideration to the temporal element

under In re Gonzalez Recinas. However, this court construes § 1252(a)(2)(B)(i)’s

limitation on judicial review “as denying jurisdiction to review the discretionary

aspects of a decision concerning cancellation of removal under § 1229b(b)(1).”

Galeano-Romero, 968 F.3d at 1181 (internal quotation marks omitted). And “[s]uch

discretionary aspects include . . . the determination of whether the petitioner’s

removal from the United States would result in exceptional and extremely unusual

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hardship to a qualifying relative under . . . § 1229b(b)(1)(D).” Id. (internal quotation

marks omitted).

Mr. Herrera concedes that Galeano-Romano precludes success on his request

for de novo review of the hardship determination. But he nevertheless asks us to

consider overruling Galeano-Romero in light of several other circuit decisions2 that

have since viewed the hardship determination as a mixed question of fact and law

reviewable under § 1252(a)(2)(D)’s “questions of law” exception to

§ 1252(a)(2)(B)’s jurisdictional bar.3 Those circuit courts reach that conclusion

based on the holding of Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020),

that “the phrase ‘questions of law’ in [§ 1252(a)(2)(D)] includes the application of a

legal standard to undisputed or established facts.”

However, in Galeano-Romano, we considered the effect of Guerrero-Lasprilla

on our prior case law and reaffirmed our precedent that “the determination of whether

the requisite hardship exists is discretionary because ‘there is no algorithm for

determining when a hardship is “exceptional and extremely unusual.”’” 968 F.3d

at 1183 (brackets omitted) (quoting Morales Ventura v. Ashcroft, 348 F.3d 1259,

2 The other circuit decisions Mr. Herrera relies on are Gonzalez Galvan v. Garland, 6 F.4th 552, 560 (4th Cir. 2021); Trejo v. Garland, 3 F.4th 760, 773 (5th Cir. 2021), abrogated on other grounds by Patel v. Garland, 142 S. Ct. 1614, 1622 (2022), as stated in Ruiz-Perez v. Garland, 49 F.4th 972, at 977 (5th Cir. 2022); and Singh v. Rosen, 984 F.3d 1142, 1150 (6th Cir. 2021). The Third Circuit agrees with Galeano-Romano. See Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 249 (3d Cir. 2020). 3 We note Mr. Herrera’s statement that he raises this issue to preserve it for a possible petition for rehearing en banc. 7 Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 8

1262 (10th Cir. 2003)). We concluded that “the Board’s discretionary determinations

[regarding whether the requisite hardship exists] . . . do not raise ‘questions of law’

for purposes of § 1252(a)(2)(D), even if framed as a challenge to the application of a

legal standard to established facts under Guerrero-Lasprilla.” Id. at 1184. And we

held that “[w]e lack jurisdiction to review the Board’s discretionary decision, based

on the facts of the case, whether an alien’s spouse will suffer an exceptional and

extremely unusual hardship.” Id. at 1182–83.

“[I]t is well established that one panel cannot overrule the judgment of another

panel of this court absent en banc reconsideration or a superseding contrary decision

by the Supreme Court.” Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1229

(10th Cir. 2001) (ellipsis and internal quotation marks omitted). Neither of these

conditions is present. We therefore cannot overrule Galeano-Romero and review the

hardship determination.

III. Conclusion

The petition for review is dismissed in part for lack of jurisdiction and

otherwise denied.

Entered for the Court

Joel M. Carson III Circuit Judge