NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 23-1573 ____________
HUGO FRANCISCO MATEO, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ____________
On Petition for Review of a Final Order of the Board of Immigration Appeals (No. A208-443-795) Immigration Judge: John B. Carle ____________
Submitted Under Third Circuit L.A.R. 34.1(a) on February 2, 2024
Before: CHAGARES, Chief Judge, RESTREPO and FREEMAN, Circuit Judges
(Opinion filed: August 22, 2024)
_______________
OPINION * _______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FREEMAN, Circuit Judge.
Hugo Francisco Mateo sought cancellation of his removal to Guatemala, but an
Immigration Judge and the Board of Immigration Appeals denied his request. He now
petitions our Court for review and claims that the agency failed to properly weigh certain
facts. For the following reasons, we will deny the petition.
I
A
Mateo is a citizen of Guatemala. He is of indigenous descent and suffered
discrimination in Guatemala because of the color of his skin and his dialect. He entered
the United States without authorization in 2002 at age 14 and has remained in this
country ever since. His father, who is 71 years old, alcoholic, and blind in one eye, is a
lawful permanent resident of the United States and is employed as a gardener. Mateo’s
mother and three of his eight siblings have passed away. Mateo and two of his brothers
(who also live in the United States) provide financial support to their father, with Mateo
contributing $200 per month.
Mateo is separated from his wife, Sabrina Lee Mateo (a U.S. citizen), with whom
he has two school-age U.S. citizen children. Sabrina has primary custody of the children,
but Mateo sees them every weekend and during their school vacations. He pays $600 per
month in child support. Sabrina also lives with her new partner, Anthony, Anthony’s two
children, and Sabrina and Anthony’s twins. Sabrina is disabled and does not work but
2 receives government benefits, and Anthony provides some financial assistance to
Mateo’s children.
B
Mateo was convicted of DUI in 2007 and 2016. Following his second DUI arrest,
the Department of Homeland Security initiated removal proceedings. It charged that, as a
noncitizen present without being admitted or paroled, he was removable under 8 U.S.C.
§ 1182(a)(6)(A)(i). Mateo conceded removability but sought cancellation of removal
under 8 U.S.C. § 1229b(b). He testified that his children, who would remain in the
United States, would be emotionally devastated and would lose financial support if he
were removed. He also claimed that his children prefer to live with him and do not feel
safe with Anthony. Finally, Mateo testified that his father economically depends on him
and his brothers.
In August 2019, the Immigration Judge denied Mateo’s application for
cancellation of removal. The IJ determined that Mateo met three of the four cancellation
criteria, but failed to demonstrate that any qualifying relatives would suffer exceptional
and extremely unusual hardship if he were removed.1 Mateo appealed, and in March
2023 the Board of Immigration Appeals adopted the IJ’s decision and dismissed the
1 To be eligible for cancellation of removal under the Immigration and Nationality Act, a petitioner must: (1) have been physically present in the United States for a continuous period of ten years, (2) be a person of good moral character, (3) have not been convicted of certain criminal offenses, and (4) demonstrate that removal would result in “exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United States or [lawful permanent resident].” 8 U.S.C. § 1229b(b)(1).
3 appeal. It agreed that Mateo did not prove that his removal would result in exceptional
and extremely unusual hardship for his two U.S. citizen children or lawful permanent
resident father. While acknowledging “the emotional and economic hardship likely to be
caused by” Mateo’s “separation from his qualifying relatives,” the BIA determined that
the IJ properly considered all relevant hardship factors and did not overlook any pertinent
ones. J.A. 8.
Mateo timely petitioned our Court for review. Following briefing, we placed this
case on hold pending the Supreme Court’s decision in Wilkinson v. Garland, 601 U.S.
209 (2024). The parties then submitted supplemental briefs addressing the effect of that
decision.
II
A2
We begin by addressing our jurisdiction to review Mateo’s petition. Agency
decisions on orders of removal largely fall into two categories: discretionary decisions,
which we lack jurisdiction to review pursuant to 8 U.S.C. § 1252(a)(2)(B)(i); and
“constitutional claims or questions of law,” which are reviewable pursuant to
§ 1252(a)(2)(D).
In Guerrero-Lasprilla v. Barr, the Supreme Court held that the “statutory phrase
‘questions of law’ includes the application of a legal standard to undisputed or
established facts.” 589 U.S. 221, 227 (2020). In the wake of that ruling, we concluded
2 The BIA had jurisdiction over Mateo’s application under 8 C.F.R. § 1003.1(b).
4 that the “exceptional and extremely unusual hardship” inquiry under 8 U.S.C.
§ 1229b(b)(1)(D) did not qualify as a question of law because it was a discretionary
decision. See Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 249 (3d Cir. 2020),
abrogated by Wilkinson v. Garland, 601 U.S. 209 (2024). But the Supreme Court
subsequently overturned that holding in Wilkinson v. Garland, explaining that the
agency’s “exceptional and extremely unusual hardship” determination on an established
set of facts is a “quintessential mixed question of law and fact.” 601 U.S. at 212.
Mateo seeks review of the agency’s hardship determination based on an
established set of facts. As a result, we have jurisdiction to review Mateo’s petition
under § 1252(a)(2)(D). Id.
In Wilkinson, the Supreme Court did not set a specific standard of review to apply
to the hardship determination, but it did give some guidance. It recognized that “[m]ixed
questions ‘are not all alike’”—they may be primarily legal or primarily factual. Id. at
221–22 (citation omitted). Nonetheless, it clarified that determining whether established
facts satisfy the hardship standard is a “primarily factual” mixed question, so “th[e]
review is deferential.” Id. at 225.3
3 Our sister circuits have yet to settle on a precise standard of review for this primarily factual inquiry. See Cortes v. Garland, 105 F.4th 124, 133 (4th Cir. 2024) (“[W]e leave to future decisions the task of sorting out how to apply the standard of review discussed in Wilkinson.”); Martinez v.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 23-1573 ____________
HUGO FRANCISCO MATEO, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ____________
On Petition for Review of a Final Order of the Board of Immigration Appeals (No. A208-443-795) Immigration Judge: John B. Carle ____________
Submitted Under Third Circuit L.A.R. 34.1(a) on February 2, 2024
Before: CHAGARES, Chief Judge, RESTREPO and FREEMAN, Circuit Judges
(Opinion filed: August 22, 2024)
_______________
OPINION * _______________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FREEMAN, Circuit Judge.
Hugo Francisco Mateo sought cancellation of his removal to Guatemala, but an
Immigration Judge and the Board of Immigration Appeals denied his request. He now
petitions our Court for review and claims that the agency failed to properly weigh certain
facts. For the following reasons, we will deny the petition.
I
A
Mateo is a citizen of Guatemala. He is of indigenous descent and suffered
discrimination in Guatemala because of the color of his skin and his dialect. He entered
the United States without authorization in 2002 at age 14 and has remained in this
country ever since. His father, who is 71 years old, alcoholic, and blind in one eye, is a
lawful permanent resident of the United States and is employed as a gardener. Mateo’s
mother and three of his eight siblings have passed away. Mateo and two of his brothers
(who also live in the United States) provide financial support to their father, with Mateo
contributing $200 per month.
Mateo is separated from his wife, Sabrina Lee Mateo (a U.S. citizen), with whom
he has two school-age U.S. citizen children. Sabrina has primary custody of the children,
but Mateo sees them every weekend and during their school vacations. He pays $600 per
month in child support. Sabrina also lives with her new partner, Anthony, Anthony’s two
children, and Sabrina and Anthony’s twins. Sabrina is disabled and does not work but
2 receives government benefits, and Anthony provides some financial assistance to
Mateo’s children.
B
Mateo was convicted of DUI in 2007 and 2016. Following his second DUI arrest,
the Department of Homeland Security initiated removal proceedings. It charged that, as a
noncitizen present without being admitted or paroled, he was removable under 8 U.S.C.
§ 1182(a)(6)(A)(i). Mateo conceded removability but sought cancellation of removal
under 8 U.S.C. § 1229b(b). He testified that his children, who would remain in the
United States, would be emotionally devastated and would lose financial support if he
were removed. He also claimed that his children prefer to live with him and do not feel
safe with Anthony. Finally, Mateo testified that his father economically depends on him
and his brothers.
In August 2019, the Immigration Judge denied Mateo’s application for
cancellation of removal. The IJ determined that Mateo met three of the four cancellation
criteria, but failed to demonstrate that any qualifying relatives would suffer exceptional
and extremely unusual hardship if he were removed.1 Mateo appealed, and in March
2023 the Board of Immigration Appeals adopted the IJ’s decision and dismissed the
1 To be eligible for cancellation of removal under the Immigration and Nationality Act, a petitioner must: (1) have been physically present in the United States for a continuous period of ten years, (2) be a person of good moral character, (3) have not been convicted of certain criminal offenses, and (4) demonstrate that removal would result in “exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a citizen of the United States or [lawful permanent resident].” 8 U.S.C. § 1229b(b)(1).
3 appeal. It agreed that Mateo did not prove that his removal would result in exceptional
and extremely unusual hardship for his two U.S. citizen children or lawful permanent
resident father. While acknowledging “the emotional and economic hardship likely to be
caused by” Mateo’s “separation from his qualifying relatives,” the BIA determined that
the IJ properly considered all relevant hardship factors and did not overlook any pertinent
ones. J.A. 8.
Mateo timely petitioned our Court for review. Following briefing, we placed this
case on hold pending the Supreme Court’s decision in Wilkinson v. Garland, 601 U.S.
209 (2024). The parties then submitted supplemental briefs addressing the effect of that
decision.
II
A2
We begin by addressing our jurisdiction to review Mateo’s petition. Agency
decisions on orders of removal largely fall into two categories: discretionary decisions,
which we lack jurisdiction to review pursuant to 8 U.S.C. § 1252(a)(2)(B)(i); and
“constitutional claims or questions of law,” which are reviewable pursuant to
§ 1252(a)(2)(D).
In Guerrero-Lasprilla v. Barr, the Supreme Court held that the “statutory phrase
‘questions of law’ includes the application of a legal standard to undisputed or
established facts.” 589 U.S. 221, 227 (2020). In the wake of that ruling, we concluded
2 The BIA had jurisdiction over Mateo’s application under 8 C.F.R. § 1003.1(b).
4 that the “exceptional and extremely unusual hardship” inquiry under 8 U.S.C.
§ 1229b(b)(1)(D) did not qualify as a question of law because it was a discretionary
decision. See Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 249 (3d Cir. 2020),
abrogated by Wilkinson v. Garland, 601 U.S. 209 (2024). But the Supreme Court
subsequently overturned that holding in Wilkinson v. Garland, explaining that the
agency’s “exceptional and extremely unusual hardship” determination on an established
set of facts is a “quintessential mixed question of law and fact.” 601 U.S. at 212.
Mateo seeks review of the agency’s hardship determination based on an
established set of facts. As a result, we have jurisdiction to review Mateo’s petition
under § 1252(a)(2)(D). Id.
In Wilkinson, the Supreme Court did not set a specific standard of review to apply
to the hardship determination, but it did give some guidance. It recognized that “[m]ixed
questions ‘are not all alike’”—they may be primarily legal or primarily factual. Id. at
221–22 (citation omitted). Nonetheless, it clarified that determining whether established
facts satisfy the hardship standard is a “primarily factual” mixed question, so “th[e]
review is deferential.” Id. at 225.3
3 Our sister circuits have yet to settle on a precise standard of review for this primarily factual inquiry. See Cortes v. Garland, 105 F.4th 124, 133 (4th Cir. 2024) (“[W]e leave to future decisions the task of sorting out how to apply the standard of review discussed in Wilkinson.”); Martinez v. Garland, 98 F.4th 1018, 1021 (10th Cir. 2024) (“[W]e apply a deferential standard to review the BIA’s hardship determination.”); Gonzalez-Rivas v. Garland, ___ F.4th ___, 2024 WL 3504968, at *1 (8th Cir. July 23, 2024) (“[O]ur review is deferential.”).
5 After Wilkinson, the government urges us to apply the highly deferential
substantial-evidence standard, while Mateo suggests de novo review. De novo review is
incompatible with the Court’s direction that our review “is deferential,” id., but we need
not determine how much deference is due because Mateo cannot prevail even if we give
the agency’s decision minimal deference.
C
Cancellation of removal requires hardship “substantially beyond that which
ordinarily would be expected to result from the [petitioner’s] deportation.” In re
Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (BIA 2001) (citation and emphasis omitted).
Country conditions, a lower standard of living, and economic detriment are relevant
“only insofar as they may affect a qualifying relative, but generally will be insufficient in
themselves to support a finding of exceptional and extremely unusual hardship.” Id. at
63–64.
Here, the IJ acknowledged that Mateo’s removal would inflict a financial and
emotional toll on his children and father, but the IJ concluded that those hardships were
not exceptional and extreme.4 The IJ found that Mateo’s siblings would offset the loss of
financial assistance that Mateo provides for his father, and that the children have other
sources of financial support—support that has remained consistent even when Mateo fell
into arrears with his child support payments. The IJ also found that Mateo’s children’s
4 The BIA adopted the IJ’s decision, so we look to both decisions. Myrie v. Att’y Gen., 855 F.3d 509, 515 (3d Cir. 2017).
6 educational and medical needs would be met in their father’s absence, and the record did
not show that the children were in danger or were mistreated by Sabrina or Anthony.
Mateo argues that the IJ erred by incorrectly weighing his indigenous background,
the insecure economic and social conditions that his children face with Sabrina, and his
father’s vulnerabilities. While the agency could have weighed these factors differently, it
considered all the factors in a manner consistent with BIA precedent.
The IJ considered the evidence cumulatively. Because Mateo’s evidence centered
on the emotional and economic impact that his removal would have on his qualifying
relatives, the IJ’s opinion focused on that as well. Although the IJ did not emphasize the
challenges Mateo could face in Guatemala due to his indigenous background, on this
record it was appropriate for the IJ to focus instead on the known circumstances of
Mateo’s qualifying relatives, all of whom would remain in the United States and have
alternative sources of support in Mateo’s absence. The IJ’s findings about Sabrina’s
household demonstrate that Mateo’s removal would not cause the children hardship
substantially beyond what would be expected when a close family member must leave
the country. Similarly, notwithstanding Mateo’s father’s challenges, the IJ correctly
concluded that he would not face exceptional or extreme hardship in light of the
assistance he receives from Mateo’s brothers in the United States.
* * *
For the foregoing reasons, we will deny the petition for review.