FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court JOSE MANUEL ORTEGA-LOPEZ, a/k/a Jose Lopez, a/k/a Manuel Lopez, a/k/a Jose Ortega, a/k/a Jose Manuel Lopez, a/k/a Manuel Jose Lopez,
Petitioner,
v. No. 19-9591 (Petition for Review) WILLIAM P. BARR, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, McHUGH, and EID, Circuit Judges. _________________________________
Jose Manuel Ortega-Lopez, a native and citizen of Mexico, seeks review of a
Board of Immigration Appeals (BIA) decision affirming the denial of his application for
cancellation of removal. Mr. Ortega-Lopez contends the agency lacked jurisdiction over
his removal proceedings, improperly conditioned relief on his having more than one child
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. and being destitute, and denied him due process by failing to address all his arguments.
We deny the petition for review.
I
Mr. Ortega-Lopez initially entered the United States without inspection in 1986.
In 1998 he departed for two weeks, reentered without inspection, and has remained here
since. In 2005 he was served with a notice to appear in removal proceedings, charging
him with entering this country without admission or parole. See 8 U.S.C.
§ 1182(a)(6)(A)(i). He conceded the charge and was granted voluntary departure, but an
immigration judge (IJ) reopened the case so he could apply for cancellation of removal.
To qualify for cancellation of removal, which is a form of discretionary relief,
Mr. Ortega-Lopez had to show, among other things, that his “removal would result in
exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a
citizen of the United States.” 8 U.S.C. § 1229b(b)(1)(D).1
Mr. Ortega-Lopez claimed that his removal would result in exceptional and
extremely unusual hardship to his 12-year-old daughter, Yesenia, a U.S. citizen. Through
a proffer he said that Yesenia lived with her mother and her mother’s boyfriend, but he
visited her at least once each week and they went on regular outings. He voluntarily paid
1 A noncitizen must also demonstrate that he was physically present in the United States for the ten years preceding his application, he had been a person of good moral character during that time, and he had not been convicted of any disqualifying crimes. See 8 U.S.C. § 1229b(b)(1)(A)-(C). If a noncitizen satisfies the statutory criteria, he must then persuade the Attorney General to favorably exercise discretion and grant relief. The government stipulated that Mr. Ortega-Lopez satisfied the first three statutory criteria. 2 $500 every month in child support for Yesenia, and although she did not have any
exceptional medical or mental-health issues, she would greatly miss her father. She
earned As and Bs in school, but his removal would impact her ability to focus and make
her “extremely sad.” Admin. R. at 119.
The IJ denied cancellation of removal. He recited the details of Yesenia’s living
arrangement and recognized that she had a good relationship with Mr. Ortega-Lopez.
The IJ also recognized that he used his opportunities to visit her, and that being separated
“would be very difficult and emotional,” id. at 86, particularly because Yesenia was at an
age “when her father’s presence is extremely supportive in [her] life,” id. at 89. The IJ
acknowledged that Mr. Ortega-Lopez’s removal would disrupt his child-support
payments, but the IJ observed that financial hardship was “an unfortunate outcome of
many removal cases.” Id. at 88. He further said that Yesenia had no acute or chronic
medical needs or special educational issues, and he noted that Yesenia would still have
the support of her mother and perhaps her mother’s boyfriend. The IJ concluded that
Mr. Ortega-Lopez failed to demonstrate that Yesenia would suffer exceptional and
extremely unusual hardship.
Mr. Ortega-Lopez appealed to the BIA, but during the pendency of the appeal he
moved for a remand to the IJ in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). His
motion for remand argued that the IJ lacked jurisdiction to conduct removal proceedings
under Pereira because his notice to appear did not specify the time and place of his
removal hearing. On the merits Mr. Ortega-Lopez asserted that the IJ incorrectly
concluded that he had failed to demonstrate exceptional and extremely unusual hardship.
3 First, he argued that he satisfied the hardship standard set forth in a “trilogy of cases,”
Admin. R. at 20, including In re Recinas, 23 I. & N. Dec. 467 (BIA 2002), but the IJ had
improperly viewed the facts of Recinas as setting the outer boundaries of what could
satisfy the hardship standard and had denied relief on the ground that he was ineligible
because he has only one child and was not financially destitute. Second, he argued that in
several unpublished cases the BIA had effectively broadened the hardship standard by
concluding that applicants demonstrated hardship despite having fewer children than the
applicant in Recinas, and thus, “if Recinas truly marked the ‘outer limit’ of what
constitutes exceptional and extremely unusual hardship,” Admin. R at 30, then the BIA
should reexamine its caselaw.
The BIA rejected these arguments and affirmed the IJ’s decision. It determined
that Mr. Ortega-Lopez’s Pereira argument failed because he was sent a notice of hearing
informing him of the date and time of the proceedings. And it agreed with the IJ that
Mr. Ortega-Lopez had failed to demonstrate exceptional and extremely unusual hardship.
The BIA observed that Yesenia had no health or learning problems and she would remain
in the United States with her mother. It acknowledged that Mr. Ortega-Lopez paid child
support and that his removal would cause Yesenia both emotional and financial hardship,
but it said that this hardship would not be “beyond that which would ordinarily be
expected to result from a parent’s removal.” Id. at 4. Finally, the BIA was unpersuaded
that the IJ improperly considered the evidence or applied the wrong legal standard, and
declined to reconsider its caselaw.
4 II
In his petition to this court, Mr. Ortega-Lopez maintains that under Pereira the IJ
lacked jurisdiction over his removal proceedings because his notice to appear was
defective. He also contends the BIA improperly denied cancellation of removal on the
ground that he has only one child and is not destitute.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court JOSE MANUEL ORTEGA-LOPEZ, a/k/a Jose Lopez, a/k/a Manuel Lopez, a/k/a Jose Ortega, a/k/a Jose Manuel Lopez, a/k/a Manuel Jose Lopez,
Petitioner,
v. No. 19-9591 (Petition for Review) WILLIAM P. BARR, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, McHUGH, and EID, Circuit Judges. _________________________________
Jose Manuel Ortega-Lopez, a native and citizen of Mexico, seeks review of a
Board of Immigration Appeals (BIA) decision affirming the denial of his application for
cancellation of removal. Mr. Ortega-Lopez contends the agency lacked jurisdiction over
his removal proceedings, improperly conditioned relief on his having more than one child
* 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. and being destitute, and denied him due process by failing to address all his arguments.
We deny the petition for review.
I
Mr. Ortega-Lopez initially entered the United States without inspection in 1986.
In 1998 he departed for two weeks, reentered without inspection, and has remained here
since. In 2005 he was served with a notice to appear in removal proceedings, charging
him with entering this country without admission or parole. See 8 U.S.C.
§ 1182(a)(6)(A)(i). He conceded the charge and was granted voluntary departure, but an
immigration judge (IJ) reopened the case so he could apply for cancellation of removal.
To qualify for cancellation of removal, which is a form of discretionary relief,
Mr. Ortega-Lopez had to show, among other things, that his “removal would result in
exceptional and extremely unusual hardship to [his] spouse, parent, or child, who is a
citizen of the United States.” 8 U.S.C. § 1229b(b)(1)(D).1
Mr. Ortega-Lopez claimed that his removal would result in exceptional and
extremely unusual hardship to his 12-year-old daughter, Yesenia, a U.S. citizen. Through
a proffer he said that Yesenia lived with her mother and her mother’s boyfriend, but he
visited her at least once each week and they went on regular outings. He voluntarily paid
1 A noncitizen must also demonstrate that he was physically present in the United States for the ten years preceding his application, he had been a person of good moral character during that time, and he had not been convicted of any disqualifying crimes. See 8 U.S.C. § 1229b(b)(1)(A)-(C). If a noncitizen satisfies the statutory criteria, he must then persuade the Attorney General to favorably exercise discretion and grant relief. The government stipulated that Mr. Ortega-Lopez satisfied the first three statutory criteria. 2 $500 every month in child support for Yesenia, and although she did not have any
exceptional medical or mental-health issues, she would greatly miss her father. She
earned As and Bs in school, but his removal would impact her ability to focus and make
her “extremely sad.” Admin. R. at 119.
The IJ denied cancellation of removal. He recited the details of Yesenia’s living
arrangement and recognized that she had a good relationship with Mr. Ortega-Lopez.
The IJ also recognized that he used his opportunities to visit her, and that being separated
“would be very difficult and emotional,” id. at 86, particularly because Yesenia was at an
age “when her father’s presence is extremely supportive in [her] life,” id. at 89. The IJ
acknowledged that Mr. Ortega-Lopez’s removal would disrupt his child-support
payments, but the IJ observed that financial hardship was “an unfortunate outcome of
many removal cases.” Id. at 88. He further said that Yesenia had no acute or chronic
medical needs or special educational issues, and he noted that Yesenia would still have
the support of her mother and perhaps her mother’s boyfriend. The IJ concluded that
Mr. Ortega-Lopez failed to demonstrate that Yesenia would suffer exceptional and
extremely unusual hardship.
Mr. Ortega-Lopez appealed to the BIA, but during the pendency of the appeal he
moved for a remand to the IJ in light of Pereira v. Sessions, 138 S. Ct. 2105 (2018). His
motion for remand argued that the IJ lacked jurisdiction to conduct removal proceedings
under Pereira because his notice to appear did not specify the time and place of his
removal hearing. On the merits Mr. Ortega-Lopez asserted that the IJ incorrectly
concluded that he had failed to demonstrate exceptional and extremely unusual hardship.
3 First, he argued that he satisfied the hardship standard set forth in a “trilogy of cases,”
Admin. R. at 20, including In re Recinas, 23 I. & N. Dec. 467 (BIA 2002), but the IJ had
improperly viewed the facts of Recinas as setting the outer boundaries of what could
satisfy the hardship standard and had denied relief on the ground that he was ineligible
because he has only one child and was not financially destitute. Second, he argued that in
several unpublished cases the BIA had effectively broadened the hardship standard by
concluding that applicants demonstrated hardship despite having fewer children than the
applicant in Recinas, and thus, “if Recinas truly marked the ‘outer limit’ of what
constitutes exceptional and extremely unusual hardship,” Admin. R at 30, then the BIA
should reexamine its caselaw.
The BIA rejected these arguments and affirmed the IJ’s decision. It determined
that Mr. Ortega-Lopez’s Pereira argument failed because he was sent a notice of hearing
informing him of the date and time of the proceedings. And it agreed with the IJ that
Mr. Ortega-Lopez had failed to demonstrate exceptional and extremely unusual hardship.
The BIA observed that Yesenia had no health or learning problems and she would remain
in the United States with her mother. It acknowledged that Mr. Ortega-Lopez paid child
support and that his removal would cause Yesenia both emotional and financial hardship,
but it said that this hardship would not be “beyond that which would ordinarily be
expected to result from a parent’s removal.” Id. at 4. Finally, the BIA was unpersuaded
that the IJ improperly considered the evidence or applied the wrong legal standard, and
declined to reconsider its caselaw.
4 II
In his petition to this court, Mr. Ortega-Lopez maintains that under Pereira the IJ
lacked jurisdiction over his removal proceedings because his notice to appear was
defective. He also contends the BIA improperly denied cancellation of removal on the
ground that he has only one child and is not destitute. Last, he contends the BIA denied
him due process by failing to address his argument that it should reconsider its hardship
cases.
A. Pereira
We dispose of the Pereira argument summarily. We have repeatedly held that
failure to include the date and time of the hearing in the original notice does not deprive
the immigration court of jurisdiction if adequate notice is provided later. See, e.g.,
Lopez-Munoz v. Barr, 941 F.3d 1013, 1018 (10th Cir. 2019). Thus, the argument fails.
B. Statutory Criteria for Relief
Mr. Ortega-Lopez next contends the BIA denied relief based on extra-statutory
criteria that he have more than one child and be destitute. We understand this argument
as raising a question of statutory construction regarding whether § 1229b(b)(1)(D) limits
eligibility for relief to noncitizens who have more than one qualifying relative and are
destitute. We have jurisdiction to consider the argument. See Galeano-Romero v. Barr,
968 F.3d 1176, 1182 (10th Cir. 2020). But it rests on a false premise and can be disposed
of summarily. The BIA decision cannot reasonably be read as recognizing or applying a
one-child or destitution requirement to be entitled to cancellation of removal. The
argument fails.
5 C. Due Process
Last, Mr. Ortega-Lopez contends he was denied due process because the BIA
failed to address his specific argument that it had broadened the hardship standard in
several unpublished cases by granting relief to applicants with fewer children than
the applicant in Recinas. This argument suffers from the same infirmity as the prior
one. It relies on the false premise that the BIA conditioned his eligibility for relief on
having more qualifying relatives. Moreover, Mr. Ortega-Lopez raised this issue as
part of his overall contention that he demonstrated hardship qualifying him for
cancellation of removal, which is a discretionary decision we cannot review. See
Galeano-Romero, 968 F.3d at 1182-84.
Also, to the extent that Mr. Ortega-Lopez disputes the adequacy of the BIA
analysis, he fails to raise a colorable constitutional due-process claim. See Alzainati
v. Holder, 568 F.3d 844, 851 (10th Cir. 2009) (“[A] quarrel about the level of detail
required in the BIA’s analysis [is] not a colorable due process claim.”). “The BIA is
not required to write an exegesis on every contention.” Maatougui v. Holder,
738 F.3d 1230, 1242-43 (10th Cir. 2013) (internal quotation marks omitted). “What
is required is that [the BIA] consider the issues raised[] and announce its decision in
terms sufficient to enable a reviewing court to perceive that it has heard and thought
and not merely reacted.” Id. at 1243 (brackets and internal quotation marks
omitted)).
6 The BIA considered whether to revisit its caselaw concerning the hardship
standard; but perceiving no error, it declined to do so. In the circumstances, the BIA
said enough. There was no constitutional violation.
III
The petition for review is denied.
Entered for the Court
Harris L Hartz Circuit Judge