Montejano-Martinez v. Garland

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 24, 2024
• Docket: 23-9556
• Status: Unpublished

Opinion

Appellate Case: 23-9556 Document: 010111037368 Date Filed: 04/24/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 24, 2024 _________________________________ Christopher M. Wolpert Clerk of Court RAFAEL MONTEJANO-MARTINEZ,

Petitioner,

v. No. 23-9556 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,

Respondent. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BALDOCK, and McHUGH, Circuit Judges. _________________________________

An immigration judge (IJ) denied Mr. Montejano’s application for cancellation

of removal and ordered him removed to Mexico. Mr. Montejano appealed the IJ’s

decision to the Board of Immigration Appeals (BIA). The BIA dismissed his appeal

from the denial of cancellation but remanded to the IJ to determine Mr. Montejano’s

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-9556 Document: 010111037368 Date Filed: 04/24/2024 Page: 2

eligibility for voluntary departure.1 He now petitions for review of the BIA’s denial

of his application for cancellation of removal. We deny the petition for review.

BACKGROUND

1. Evidence Mr. Montejano presented to the agency

Mr. Montejano is a native and citizen of Mexico who was born in 1973. At the

hearing on his application, he testified he came to the United States as a young child.

He then left this country when he was ten years old and lived in Mexico until he

returned to the United States in 2004. At the time of the hearing, he was 45 years

old.

In 2018 the Department of Homeland Security served him with a Notice to

Appear (NTA) alleging he had entered the United States without being admitted or

paroled after inspection. Mr. Montejano admitted the allegations in the NTA and

conceded his removability, but he sought cancellation of removal.

To be eligible for a discretionary grant of cancellation of removal,

Mr. Montejano had to establish four elements: (1) physical presence in the United

States for a continuous period of not less than ten years; (2) good moral character

during that time; (3) no convictions for certain enumerated offenses; and (4) “that

removal would result in exceptional and extremely unusual hardship to the alien’s

1 Notwithstanding the remand for further proceedings on the voluntary departure issue, the BIA’s order is a final order of removal subject to our review under 8 U.S.C. § 1252. See Batubara v. Holder, 733 F.3d 1040, 1042-43 (10th Cir. 2013) (ongoing proceedings concerning voluntary departure do not affect the finality of a removal order because voluntary departure affects only the manner of the non-citizen’s exit from this country, not the issue of removal itself). 2 Appellate Case: 23-9556 Document: 010111037368 Date Filed: 04/24/2024 Page: 3

spouse, parent, or child, who is a citizen of the United States or an alien lawfully

admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(A)-(D). The government

stipulated that he met the physical presence requirement, had not been convicted of a

disqualifying offense, and had three qualifying relatives: his 13-year-old son, his

lawful permanent resident (LPR) mother, and his citizen father. The remaining

issues to be resolved were whether he had the requisite good moral character and

whether his removal would result in exceptional and extremely unusual hardship to

any or all of his qualifying relatives. Only if these requirements were met would the

IJ need to consider whether he warranted a favorable exercise of discretion.

At the hearing Mr. Montejano testified about his criminal history. Other than

relatively minor offenses, he had been convicted of a Utah Class B misdemeanor

conviction for driving under the influence (DUI). He explained the circumstances

that led to the DUI offense, his compliance with the conditions of his sentence, and

the lessons he had learned from his conviction and sentence.

Mr. Montejano also testified about his family members and the hardship they

would face if he were removed to Mexico. His son, G.M., thirteen, was a United

States citizen born in this country. If Mr. Montejano were removed, G.M. would not

go with him to Mexico. This would cause G.M. hardship, because he and

Mr. Montejano were close, and Mr. Montejano tried to spend as much time as he

could with G.M. They did things together, like going to movies.

Mr. Montejano testified that G.M. did not have any medical conditions. His

wife, who was not a qualifying relative, also had no medical issues and was

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employed. But Mr. Montejano stated he did not think she would be able to pay the

family’s bills if he were removed.

Mr. Montejano also discussed hardship to his LPR mother. He stated she had

serious medical issues, requiring doctor’s appointments, but he was not sure exactly

what those issues were. If Mr. Montejano were removed, she would not go with him

to Mexico because she needed to go to doctor’s appointments in the United States.

Finally, Mr. Montejano discussed hardship to his United States citizen father.

His father had diabetes (for which he had been hospitalized), and liver and kidney

problems. Mr. Montejano provided his father with between $100 and $200 every

month to help him financially because his father was not working. His father would

not join him in Mexico because he needed to receive treatment in the United States.

He would suffer financially and emotionally if Mr. Montejano were removed to

Mexico.

Mr. Montejano’s father also testified at the hearing. He stated he was 64 years

old, had diabetes and kidney problems, and could not work but received social

security benefits. He was seeing a kidney specialist and had spent time in the

hospital three years earlier for intestinal problems. He had medical insurance and

lived in his own home with his wife and daughter. His daughter helped him

financially and his wife received retirement pay from Dillard’s. He also received

financial help from his two other sons, who live in Utah. Consistent with his son’s

testimony, he stated that if Mr. Montejano were removed to Mexico, he would not go

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with him because he receives medical treatment in the United States. He estimated

Mr. Montejano provided him with support of between $100 and $400 per month.

In addition to this testimonial evidence, Mr. Montejano also supplied

documentary evidence in support of his claim. This included background

information about his application along with his father’s medical records,

Mr. Montejano’s employment records (including W-2 and tax forms), and

information about his criminal history.

2. The IJ’s decision

Although he cited Mr. Montejano’s “impressive work history,” his

“outstanding parenting,” and his “strong family ties in the United States,” R. at 57,

the IJ concluded he had failed to meet his burden of establishing good moral

character. The IJ cited the “aggravating” circumstances of Mr. Montejano’s DUI

conviction, including his high blood alcohol content and his erratic driving when he

was stopped by the Utah Highway Patrol. Id. at 58.

The IJ also concluded Mr. Montejano had failed to establish exceptional and

unusual hardship to his qualifying relatives. Based on the hearing testimony, the IJ

analyzed the effect on those relatives if Mr. Montejano was the only person in his

extended family who relocated to Mexico. The IJ acknowledged “[t]hat scenario

would certainly create hardship for all three permanent residents.” Id. at 59. And

although “all three qualifying relatives would suffer emotional and financial

hardship,” Mr. Montejano had not shown “that the hardship that they would suffer

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would be substantially beyond the ordinary hardship that would be expected when a

close family member leaves the United States.” Id. at 61.

Although G.M. would no longer be living with both parents if Mr. Montejano

were removed to Mexico, G.M. had no medical issues, was doing well in school, was

living with his mother, and would have the emotional and financial support of other

family members who lived nearby. Mr. Montejano’s parents lived in their own home

with an adult daughter and received support from all five of their adult children

living in Utah. If Mr. Montejano were removed to Mexico, their other children could

continue to provide them with support and could perhaps increase their contribution

to compensate for the loss of his financial support. In addition, both parents had

retirement income and Mr. Montejano’s father had government-sponsored health

insurance to help with his medical bills. The IJ specifically considered the parents’

health, noting there was no evidence their healthcare treatment would be

discontinued if Mr. Montejano were removed.

3. The BIA’s decision

Mr. Montejano appealed to the BIA, which adopted and affirmed the IJ’s

decision denying cancellation of removal. The BIA specifically mentioned and

affirmed both the IJ’s good moral character and hardship determinations. But it

remanded for further proceedings before the IJ on the voluntary departure issue.

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DISCUSSION

1. Standard of Review

This case involves a single BIA member’s brief order under 8 C.F.R.

§ 1003.1(e)(5).2 We review that order as the final agency determination, “limit[ing]

our review to issues specifically addressed therein.” Diallo v. Gonzales, 447 F.3d

1274, 1279 (10th Cir. 2006). When the BIA adopts the IJ’s rationale by reference, as

it did here, “[w]e may consult the IJ’s decision to give substance to the BIA’s

reasoning.” Razkane v. Holder, 562 F.3d 1283, 1287 (10th Cir. 2009). “We review

the BIA’s legal determinations de novo, and its findings of fact for substantial

evidence.” Aguayo v. Garland, 78 F.4th 1210, 1216 (10th Cir. 2023).

2. Exceptional and Extremely Unusual Hardship

While this appeal was pending, the Supreme Court abrogated our decision in

Galeano-Romero v. Barr, 968 F.3d 1176, 1182-84 (10th Cir. 2020), and determined

that the BIA’s application of the “exceptional and extremely unusual hardship”

standard under § 1229b(b)(1)(D) to a given set of facts is a question of law subject to

judicial review. Wilkinson v. Garland, 144 S. Ct. 780, 787-88 & n.2 (2024). The

Court emphasized, however, that “[b]ecause this mixed question is primarily factual,

that review is deferential.” Id. at 792-93; see also Martinez v. Garland, ___F.4th___,

No. 23-9593, 2024 WL 1626336, at *2 (10th Cir. Apr. 16, 2024) (stating that under

2 The BIA’s decision was issued by a Temporary Appellate Immigration Judge appointed by the Attorney General. See generally 8 C.F.R. § 1003.1(a)(1), (4). 7 Appellate Case: 23-9556 Document: 010111037368 Date Filed: 04/24/2024 Page: 8

Wilkinson, “we apply a deferential standard to review the BIA’s hardship

determination”).

Mr. Montejano primarily argues the BIA departed from its precedent by failing

to account for the totality of the circumstances and the cumulative effect on his

qualifying relatives if he is removed to Mexico. The BIA’s precedent requires that

“all hardship factors should be considered in the aggregate when assessing

exceptional and extremely unusual hardship.” In re Monreal-Aguinaga, 23 I. & N.

Dec. 56, 64 (BIA 2001). The ultimate issue is whether the applicant has

demonstrated that his qualifying relatives would suffer hardship that is substantially

beyond that which would ordinarily be expected to result from the person’s

departure. Id. at 59.

As Mr. Montejano implicitly acknowledges, see Pet’r. Opening Br. at 13, the

BIA referred to (and adopted) the IJ’s consideration of hardship factors in their

totality. See R. at 6 (BIA’s decision twice stating that “the [IJ] properly considered

the numerous hardship factors in their totality, but determined that they did not rise

to the requisite level of hardship”); see also 61 (IJ’s decision concluding, after

analyzing the financial, emotional, and medical hardship to all three qualifying

relatives, that “all three qualifying relatives would suffer emotional and financial

hardship” but that Mr. Montejano had not established “the hardship that they would

suffer would be substantially beyond the ordinary hardship that would be expected

when a close family member leaves the United States”). Mr. Montejano reiterates

some of the hardships his qualifying relatives may face as the result of his removal,

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see Pet’r Opening Br. at 11-12, but fails to show that the BIA ignored or failed to

discuss the aggregate impact of these harms when making its hardship determination.

Mr. Montejano further argues the BIA’s decision is inconsistent with a case it

cited, In re Gonzalez Recinas, 23 I. & N. Dec. 467 (BIA 2002) (en banc).3 The facts

and circumstances of Recinas differ significantly from those of this case. In Recinas,

the respondent was the single mother of six children, four of whom were United

States citizens ranging in age from 5 to 12 years old. She depended on her mother to

watch the children while she worked, and there was no indication the children’s

father remained actively involved in their lives. The children would return to Mexico

with their mother if she were removed but they had never even traveled there and had

difficulty speaking Spanish. Under these circumstances, the BIA found the case

presented a close question, and fell “on the outer limit of the narrow spectrum of

cases in which the exceptional and extremely unusual hardship standard will be met.”

Id. at 470. The BIA nevertheless found the hardship to be exceptional and extremely

unusual, given the cumulative hardship factors, which included “the heavy financial

and familial burden on the adult respondent, the lack of support from the children’s

father, the United States citizen children’s unfamiliarity with the Spanish language,

the lawful residence in this country of all of the respondent’s immediate family, and

3 Mr. Montejano also contends the BIA’s decision is inconsistent with two other cases it cited. But he does not develop a specific argument concerning any inconsistency with those cases. We have examined the cases he cites and find no inconsistency with the BIA’s decision. Given the lack of a developed argument on this point, however, we decline to discuss these cases in detail. 9 Appellate Case: 23-9556 Document: 010111037368 Date Filed: 04/24/2024 Page: 10

the concomitant lack of family in Mexico.” Id. at 472. Mr. Montejano’s case does

not present such an extraordinary, cumulative burden of unalleviated hardship

factors, and the IJ and BIA’s hardship analysis in his case was not impermissibly

inconsistent with Recinas’s cumulative approach.

In sum, Mr. Montejano has not established that, contrary to its own caselaw,

the BIA failed to assess the aggregate impact of hardship to all of his qualifying

relatives. Nor has he shown, under our deferential standard of review, that the BIA

erred in determining that he failed to show the required level of hardship. We

therefore deny the petition for review on the hardship issue.

3. Good Moral Character

As stated earlier, Mr. Montejano had to establish all four criteria in

§ 1229b(b)(1)(A)-(D) to be eligible for cancellation of removal. Thus, his failure to

establish any one element would preclude his eligibility for relief. Because we have

upheld the BIA’s unfavorable hardship determination, we need not further consider

the issues he raises concerning its independent ground for denial, the BIA’s

determination that he lacked good moral character.

CONCLUSION

The petition for review is denied.

Entered for the Court

Bobby R. Baldock Circuit Judge