Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 16, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
CIRILO OLMEDO MARTINEZ,
Petitioner,
v. No. 23-9593
MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
Petition for Review of a Decision of the Board of Immigration Appeals _________________________________
Submitted on the briefs:*
Margaret W. Pascual, Pascual Law, PLLC, Salt Lake City, Utah, for Petitioner.
Lindsay Dunn, Trial Attorney, and Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent. _________________________________
Before EID, KELLY, and ROSSMAN, Circuit Judges. _________________________________
KELLY, Circuit Judge. _________________________________
* 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. Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 2
Petitioner Cirilo Olmedo-Martinez seeks review of the Board of Immigration
Appeals’ (BIA) denial of his motion to reopen and remand, arguing that he is eligible
for cancellation of removal and that the BIA applied an incorrect legal standard. We
exercise jurisdiction under 8 U.S.C. § 1252(a)(2)(D) and deny the petition for review.
Background
The Department of Homeland Security charged Mr. Olmedo-Martinez, an
alien, with removability. R. 638. Mr. Olmedo-Martinez applied for cancellation of
removal, and on April 3, 2019, the Immigration Judge (IJ) denied relief due to Mr.
Olmedo-Martinez’s failure to demonstrate his removal would result in exceptional
and extremely unusual hardship to family members. Id. at 163–64, 389–401.
Mr. Olmedo-Martinez appealed to the BIA and moved to remand the
proceedings, arguing that the IJ did not adequately consider the evidence of hardship
and asserting that previously unavailable evidence would likely change the result. Id.
at 54–55, 93–102. Specifically, Mr. Olmedo-Martinez presented evidence that (1) a
different IJ granted his brother’s withholding of removal due to ongoing familial
violence in Mexico, and (2) his wife gave birth to a daughter. Id. at 57–59. On
October 11, 2022, the BIA dismissed the appeal and declined to remand the case,
concluding that Mr. Olmedo-Martinez failed to show, first, how his brother’s case
established anything beyond what he previously presented to the IJ, and second, how
his newborn daughter would change the outcome of the IJ’s disposition. Id. at 41–43.
2 Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 3
Mr. Olmedo-Martinez then filed a motion to reopen and remand the case based
on additional new evidence: his son’s diagnosis with a complex medical condition
and an educational impairment. Id. at 9–10. On September 14, 2023, the BIA denied
the motion “for failure to demonstrate prima facie eligibility for cancellation of
removal[.]” Id. at 2. The Board held Mr. Olmedo-Martinez could not demonstrate
that the condition was particularly serious or that his child could not continue
treatment in his absence, and he failed to sufficiently address how his removal would
affect his child’s educational hardship. Id. at 2–3. He seeks review of this decision.
Discussion
As a threshold matter, the government argues that we lack jurisdiction to
review Mr. Olmedo-Martinez’s petition because 8 U.S.C. § 1252(a)(2)(B)(i)
“precludes our review of an ‘exceptional and extremely unusual hardship’
determination under § 1229b(b)(1)(D),” which, consequently, bars our review of the
BIA’s denial of the motion to reopen. Resp. Br. at 9–10 (quoting Alzainati v. Holder,
568 F.3d 844, 849 (10th Cir. 2009)). While this case was pending, the Supreme
Court clarified that “application of the exceptional and extremely unusual hardship
standard to a given set of facts is reviewable as a question of law under
§ 1252(a)(2)(D).” Wilkinson v. Garland, 601 U.S.__, 2024 WL 1160995, at *5
(2024). In doing so, the Supreme Court abrogated our decision in Galeano-Romero
v. Barr where we held that application of the exceptional and extremely unusual
hardship standard does not raise questions of law under § 1252(a)(2)(D). 968 F.3d
3 Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 4
1176, 1182–84 (10th Cir. 2020).1 Under Wilkinson, we have jurisdiction to review
the underlying hardship determination, and therefore we review the BIA’s denial of
Mr. Olmedo-Martinez’s motion to reopen. See Alzainati, 568 F.3d at 848–49.2
We typically review the BIA’s denial of a motion to reopen for abuse of
discretion. Kucana v. Holder, 558 U.S. 233, 242 (2010); Maatougui v. Holder, 738
F.3d 1230, 1239 (10th Cir. 2013); Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th
Cir. 2004). And under § 1252(a)(2)(D), “[w]e review any valid constitutional claims
or questions of law de novo.” Alzainati, 568 F.3d at 851. Of course, in Wilkinson
the Court clarified that we review the hardship determination as a question of law
under § 1252(a)(2)(D). 2024 WL 1160995, at *5. However, the Supreme Court
explained that “[b]ecause this mixed question is primarily factual, that review is
deferential.” Id.; see also Yanez-Olivo v. Garland, No. 23-3653, 2024 WL 1282607,
at *1 (6th Cir. Mar. 26, 2024) (applying Wilkinson’s deferential standard of review in
considering IJ’s determination of eligibility for cancellation). Thus, we apply a
deferential standard to review the BIA’s hardship determination.
A. Exceptional and Extremely Unusual Hardship
The BIA denied the motion due to Mr. Olmedo-Martinez’s failure to establish
“a reasonable likelihood . . . that the statutory requirement of exceptional and
1 In addition to Galeano-Romero, the Supreme Court’s decision partially abrogated Alzainati, 568 F.3d at 847–50, on the same ground. 2 We still lack jurisdiction to review agency factfinding. Wilkinson, 2024 WL 1160995, at *9 (“The facts underlying any determination on cancellation of removal therefore remain unreviewable.”). For example, “the seriousness of a family member’s medical condition” would be unreviewable. Id. 4 Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 5
extremely unusual hardship would be met in reopened proceedings.” R. 2. Under
this standard, the applicant must establish hardship that is “substantially different
from, or beyond, that which would normally be expected from the deportation of an
alien with close family members here.” In re Monreal-Aguinaga, 23 I. & N. Dec.
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Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 16, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
CIRILO OLMEDO MARTINEZ,
Petitioner,
v. No. 23-9593
MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
Petition for Review of a Decision of the Board of Immigration Appeals _________________________________
Submitted on the briefs:*
Margaret W. Pascual, Pascual Law, PLLC, Salt Lake City, Utah, for Petitioner.
Lindsay Dunn, Trial Attorney, and Kiley Kane, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent. _________________________________
Before EID, KELLY, and ROSSMAN, Circuit Judges. _________________________________
KELLY, Circuit Judge. _________________________________
* 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. Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 2
Petitioner Cirilo Olmedo-Martinez seeks review of the Board of Immigration
Appeals’ (BIA) denial of his motion to reopen and remand, arguing that he is eligible
for cancellation of removal and that the BIA applied an incorrect legal standard. We
exercise jurisdiction under 8 U.S.C. § 1252(a)(2)(D) and deny the petition for review.
Background
The Department of Homeland Security charged Mr. Olmedo-Martinez, an
alien, with removability. R. 638. Mr. Olmedo-Martinez applied for cancellation of
removal, and on April 3, 2019, the Immigration Judge (IJ) denied relief due to Mr.
Olmedo-Martinez’s failure to demonstrate his removal would result in exceptional
and extremely unusual hardship to family members. Id. at 163–64, 389–401.
Mr. Olmedo-Martinez appealed to the BIA and moved to remand the
proceedings, arguing that the IJ did not adequately consider the evidence of hardship
and asserting that previously unavailable evidence would likely change the result. Id.
at 54–55, 93–102. Specifically, Mr. Olmedo-Martinez presented evidence that (1) a
different IJ granted his brother’s withholding of removal due to ongoing familial
violence in Mexico, and (2) his wife gave birth to a daughter. Id. at 57–59. On
October 11, 2022, the BIA dismissed the appeal and declined to remand the case,
concluding that Mr. Olmedo-Martinez failed to show, first, how his brother’s case
established anything beyond what he previously presented to the IJ, and second, how
his newborn daughter would change the outcome of the IJ’s disposition. Id. at 41–43.
2 Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 3
Mr. Olmedo-Martinez then filed a motion to reopen and remand the case based
on additional new evidence: his son’s diagnosis with a complex medical condition
and an educational impairment. Id. at 9–10. On September 14, 2023, the BIA denied
the motion “for failure to demonstrate prima facie eligibility for cancellation of
removal[.]” Id. at 2. The Board held Mr. Olmedo-Martinez could not demonstrate
that the condition was particularly serious or that his child could not continue
treatment in his absence, and he failed to sufficiently address how his removal would
affect his child’s educational hardship. Id. at 2–3. He seeks review of this decision.
Discussion
As a threshold matter, the government argues that we lack jurisdiction to
review Mr. Olmedo-Martinez’s petition because 8 U.S.C. § 1252(a)(2)(B)(i)
“precludes our review of an ‘exceptional and extremely unusual hardship’
determination under § 1229b(b)(1)(D),” which, consequently, bars our review of the
BIA’s denial of the motion to reopen. Resp. Br. at 9–10 (quoting Alzainati v. Holder,
568 F.3d 844, 849 (10th Cir. 2009)). While this case was pending, the Supreme
Court clarified that “application of the exceptional and extremely unusual hardship
standard to a given set of facts is reviewable as a question of law under
§ 1252(a)(2)(D).” Wilkinson v. Garland, 601 U.S.__, 2024 WL 1160995, at *5
(2024). In doing so, the Supreme Court abrogated our decision in Galeano-Romero
v. Barr where we held that application of the exceptional and extremely unusual
hardship standard does not raise questions of law under § 1252(a)(2)(D). 968 F.3d
3 Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 4
1176, 1182–84 (10th Cir. 2020).1 Under Wilkinson, we have jurisdiction to review
the underlying hardship determination, and therefore we review the BIA’s denial of
Mr. Olmedo-Martinez’s motion to reopen. See Alzainati, 568 F.3d at 848–49.2
We typically review the BIA’s denial of a motion to reopen for abuse of
discretion. Kucana v. Holder, 558 U.S. 233, 242 (2010); Maatougui v. Holder, 738
F.3d 1230, 1239 (10th Cir. 2013); Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th
Cir. 2004). And under § 1252(a)(2)(D), “[w]e review any valid constitutional claims
or questions of law de novo.” Alzainati, 568 F.3d at 851. Of course, in Wilkinson
the Court clarified that we review the hardship determination as a question of law
under § 1252(a)(2)(D). 2024 WL 1160995, at *5. However, the Supreme Court
explained that “[b]ecause this mixed question is primarily factual, that review is
deferential.” Id.; see also Yanez-Olivo v. Garland, No. 23-3653, 2024 WL 1282607,
at *1 (6th Cir. Mar. 26, 2024) (applying Wilkinson’s deferential standard of review in
considering IJ’s determination of eligibility for cancellation). Thus, we apply a
deferential standard to review the BIA’s hardship determination.
A. Exceptional and Extremely Unusual Hardship
The BIA denied the motion due to Mr. Olmedo-Martinez’s failure to establish
“a reasonable likelihood . . . that the statutory requirement of exceptional and
1 In addition to Galeano-Romero, the Supreme Court’s decision partially abrogated Alzainati, 568 F.3d at 847–50, on the same ground. 2 We still lack jurisdiction to review agency factfinding. Wilkinson, 2024 WL 1160995, at *9 (“The facts underlying any determination on cancellation of removal therefore remain unreviewable.”). For example, “the seriousness of a family member’s medical condition” would be unreviewable. Id. 4 Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 5
extremely unusual hardship would be met in reopened proceedings.” R. 2. Under
this standard, the applicant must establish hardship that is “substantially different
from, or beyond, that which would normally be expected from the deportation of an
alien with close family members here.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56,
65 (B.I.A. 2001) (en banc). For example, the BIA has noted that an applicant whose
child has “very serious health issues, or compelling special needs in school” might
qualify. Id. at 63. But economic detriment and diminished educational opportunities
are insufficient. In re Andazola-Rivas, 23 I. & N. Dec. 319, 323 (B.I.A. 2002).
Given the high standard, the BIA did not err in denying the motion to reopen.
The Board recognized that Mr. Olmedo-Martinez’s son was diagnosed with a
complex bowel issue, but relying upon a medical article proffered with the motion,
found that it could be ameliorated by a variety of treatments including behavioral
modification. R. 2–3. Similarly, though his son has been placed in an Individualized
Education Program (IEP) at school, Mr. Olmedo-Martinez failed to show how his
removal would cause his son’s educational impairments to rise to the level of
extremely unusual hardship. Id. at 3. His generic statement that his son would
require increased time, attention, and resources was insufficient. Id. at 13.
Finally, contrary to Mr. Olmedo-Martinez’s argument that the BIA failed to
address the cumulative effects of all the evidence presented, Pet. Br. at 13–14, the
Board reasoned that “the documents submitted, even when considered in the
aggregate with other evidence of record, do not make a prima facie case for
hardship[.]” R. 3 (emphasis added). Therefore, the BIA properly considered all Mr.
5 Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 6
Olmedo-Martinez’s proffered evidence, including potential violence in Mexico and
problems stemming from his separation from his children and financial loss. Pet. Br.
at 13. While the hardships faced by Mr. Olmedo-Martinez and his family are
undoubtedly difficult, they do not rise to the level of exceptional or extremely
unusual hardship.
B. The BIA’s Application of the Legal Standard
Applying de novo review, we conclude that Mr. Olmedo-Martinez’s remaining
argument fails. He claims that the BIA’s September 2023 denial “appears” to
substitute the “reasonable likelihood” standard for a higher standard — whether the
new evidence “would likely” establish exceptional and extremely unusual hardship in
a reopened proceeding. Pet. Br. at 2. This argument is inconsistent with the record;
the BIA’s September 2023 order uses only the “reasonable likelihood” standard. See
R. 2–3.
To the extent Mr. Olmedo-Martinez argues that an incorrect legal standard was
applied in the IJ’s April 2019 decision or the BIA’s October 2022 order, he failed to
raise such arguments in his initial appeal of the IJ’s decision, id. at 88–103, in a
motion to reconsider, see 8 U.S.C. § 1229a(c)(6), or elsewhere. Before advancing a
specific legal theory in court, the alien must first present that same specific legal
theory to the BIA. Miguel-Pena v. Garland, 94 F.4th 1145, 1154 (10th. Cir. 2024).
Accordingly, the Petition for Review is DENIED.