Jose Lozano-Hernandez v. Merrick B. Garland

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 30, 2024
• Docket: 23-3532
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 24a0226n.06

No. 23-3532

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 30, 2024 KELLY L. STEPHENS, Clerk ) JOSE CRUZ LOZANO-HERNANDEZ, ) Petitioner, ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES v. ) BOARD OF IMMIGRATION ) APPEALS MERRICK B. GARLAND, Attorney General, ) ) OPINION Respondent. ) )

Before: KETHLEDGE, LARSEN and BLOOMEKATZ, Circuit Judges.

LARSEN, Circuit Judge. Jose Cruz Lozano-Hernandez petitions this court for review of a

decision of the Board of Immigration Appeals (BIA) denying his applications for cancellation of

removal or, in the alternative, voluntary departure. The BIA denied Lozano-Hernandez’s

applications, concluding that his case did not warrant a favorable exercise of discretion. We lack

jurisdiction to review the agency’s dispositive exercise of its discretion. We therefore DISMISS

the petition for review.

I.

Lozano-Hernandez entered the United States illegally in May 1996 at the age of eighteen.

He was apprehended by immigration authorities in 1998 and was granted voluntary departure to

Mexico. Two weeks after his voluntary departure, Lozano-Hernandez reentered the United States

illegally. He has remained in the United States since that time. No. 23-3532, Lozano-Hernandez v. Garland

Lozano-Hernandez lives in Lorain, Ohio, where he owns and operates a construction

business. He is married to a United States citizen and has three United States-citizen children from

prior relationships and three United States-citizen step-children. All the children are now adults,

but at the time of Lozano-Hernandez’s immigration hearing, two were in high school, aged 17 and

18. Lozano-Hernandez is involved in the lives of his children and provides some support to his

family. But he previously failed to make child-support payments and was $14,000 in arrears at

the time of his hearing. He also has a criminal record. He was convicted of disorderly conduct,

possession of criminal tools, and attempted non-support, and he was arrested for driving under the

influence resulting in a conviction for reckless operation.

In 2011, Lozano-Hernandez was again apprehended by immigration authorities. The

government initiated removal proceedings under 8 U.S.C. § 1182(a)(6)(A)(i). Lozano-Hernandez

conceded removability but applied for multiple forms of relief, only two of which are at issue

here: cancellation of removal and voluntary departure.1 After a series of continuances, an

Immigration Judge (IJ) held a hearing and denied Lozano-Hernandez’s applications for relief. The

IJ determined that Lozano-Hernandez was ineligible for relief because he lacked good moral

character and, with respect to cancellation of removal, he had failed to show that his removal would

cause his qualifying relatives exceptional and extremely unusual hardship. The IJ also concluded

that Lozano-Hernandez was undeserving of relief as a matter of discretion.

The BIA affirmed. The BIA concluded that Lozano-Hernandez’s application did “not

warrant a favorable exercise of discretion for either cancellation of removal or voluntary

departure.” AR 5. And he was not even eligible for cancellation of removal because he had not

1 The IJ and BIA denied Lozano-Hernandez’s applications for asylum, withholding of removal, and protection under the Convention against Torture. Lozano-Hernandez does not seek review of those decisions in this court. -2- No. 23-3532, Lozano-Hernandez v. Garland

shown that his removal would cause exceptional and extremely unusual hardship to his qualifying

relatives. The BIA did not, however, adopt the IJ’s conclusion that Lozano-Hernandez lacked

good moral character.

Lozano-Hernandez now petitions this court for review.

II.

The Attorney General “may” cancel removal or allow voluntary departure for aliens

meeting certain eligibility requirements. 8 U.S.C. §§ 1229b, 1229c. To be eligible for either

cancellation of removal or voluntary departure, an alien must have exhibited “good moral

character” during the period set by statute. Id. §§ 1229b(b)(1)(B), 1229c(b)(1)(B). Eligibility for

cancellation of removal also requires an alien to show that removal would cause “exceptional and

extremely unusual hardship” to his or her qualifying relatives. Id. § 1229b(b)(1)(D). We have

jurisdiction to review the BIA’s hardship determination “under [8 U.S.C.] § 1252(a)(2)(D), which

gives Courts of Appeals jurisdiction to review ‘questions of law.’” Wilkinson v. Garland, 601

U.S. 209, 212, 217 (2024). But even if an alien meets all eligibility requirements, the Attorney

General retains “residual ‘discretion to deny relief.’” Singh v. Rosen, 984 F.3d 1142, 1147 (6th

Cir. 2021) (quoting Galicia Del Valle v. Holder, 343 F. App’x 45, 51 (6th Cir. 2009)). And we

lack jurisdiction to review the BIA’s exercise of its discretion. Id. at 1148–49; 8 U.S.C.

§ 1252(a)(1), (a)(2)(B), (a)(2)(D).

In this case, the BIA concluded that Lozano-Hernandez was ineligible for cancellation of

removal because he had not shown that his qualifying family members would suffer exceptional

-3- No. 23-3532, Lozano-Hernandez v. Garland

and extremely unusual hardship. Lozano-Hernandez challenges that conclusion, which we have

the statutory authority to review.2 Wilkinson, 601 U.S. at 217.

But the BIA also concluded that “[Lozano-Hernandez] does not warrant a favorable

exercise of discretion for either cancellation of removal or voluntary departure.” AR 5. The BIA

reached that conclusion after weighing Lozano-Hernandez’s lengthy period of residence in the

United States, his relationship with his family, his employment history, and his generosity toward

others against his child-support arrearage and his criminal record.

“[W]e have no jurisdiction to review that discretionary decision.” Bernardino Murillo v.

Barr, 795 F. App’x 437, 441 (6th Cir. 2019). We may entertain “constitutional claims or questions

of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). But Lozano-Hernandez has

not identified any constitutional or legal questions “underlying the BIA’s exercise of its

discretion.” Bernardino Murillo, 795 F. App’x at 441. “Thus, even if we were to conclude that

[Lozano-Hernandez’s] arguments regarding . . . hardship had merit, we would have no authority

to disturb the BIA’s discretionary denial of relief.” Id. So we cannot grant him relief.

The only remaining question is whether to deny or dismiss Lozano-Hernandez’s petition

for review. We think the proper course is to dismiss the petition for lack of subject-matter

jurisdiction. “Because we cannot overturn the BIA’s discretionary denial of relief regardless of

our legal conclusions, any opinion we reach on [Lozano-Hernandez’s other] claims would be

purely advisory and beyond our authority under Article III.” Ortega v. Holder, 736 F.3d 637, 640

(1st Cir. 2013); see also Ekasinta v. Gonzales, 415 F.3d 1188, 1191 (10th Cir. 2005) (“Absent

2 Lozano-Hernandez also challenges the IJ’s moral-character finding. That is a mixed question reviewable under 8 U.S.C. § 1252(a)(2)(D). Hernandez v. Garland, 59 F.4th 762, 768 (6th Cir. 2023). But the BIA did not rely on the IJ’s moral-character finding, and the BIA’s opinion is the one we review. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). -4- No. 23-3532, Lozano-Hernandez v. Garland

authority to review the discretionary ground, any opinion of ours reviewing the nondiscretionary

ground could not affect the final order’s validity and so would be advisory only.”).

***

We DISMISS the petition for review.

-5-