NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ROBERTO RIOS-ROCHA, No. 19-73287
Petitioner, Agency No. A209-138-817
v. PAMELA BONDI, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted October 22, 2025 Phoenix, Arizona
Before: GRABER, BADE, and LEE, Circuit Judges. Dissent by Judge GRABER. Petitioner Roberto Rios-Rocha, a native and citizen of Mexico, seeks review
of the Board of Immigration Appeals’ (BIA) decision dismissing the appeal of an
immigration judge’s (IJ) denial of his application for cancellation of removal under
8 U.S.C. § 1229b(b)(1). We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition.
“Where, as here, the BIA agrees with the IJ decision and also adds its own
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reasoning, we review the decision of the BIA and those parts of the IJ’s decision
upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th
Cir. 2019) (citing Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011)). We review
de novo questions of law and constitutional claims. Mohammed v. Gonzales, 400
F.3d 785, 791–92 (9th Cir. 2005).
We review “an IJ’s decision to exclude . . . evidence . . . for an abuse of
discretion.” See Vatyan v. Mukasey, 508 F.3d 1179, 1182 (9th Cir. 2007) (citing
United States v. Whitworth, 856 F.2d 1268, 1283 (9th Cir 1988)). But “if the IJ’s
rejection of the [evidence] is based on purely legal grounds, we review de novo.”
See id. (citing Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001)).
We review the agency’s determination of “exceptional and extremely
unusual hardship” under 8 U.S.C. § 1229b(b)(1)(D) for substantial evidence.
Gonzalez-Juarez v. Bondi, 137 F.4th 996, 1003 (9th Cir. 2025). “Under this
standard, we must uphold the agency determination unless the evidence compels a
contrary conclusion.” Duran-Rodriguez, 918 F.3d at 1028 (citing INS v.
Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)).
1. Rios-Rocha has not shown that the agency erred as a matter of law or
abused its discretion by excluding his expert’s affidavit. Rios-Rocha first argues
that the IJ erred by failing to state his reasons on the record for excluding the
expert’s affidavit. But the IJ’s reasons for excluding the affidavit are reasonably
2 19-73287 discernable from the hearing transcript. See Garland v. Ming Dai, 593 U.S. 357,
369 (2021). Rios-Rocha next argues that the BIA engaged in impermissible
fact-finding by accepting the government’s arguments on the admissibility of the
affidavit. See 8 C.F.R. § 1003.1(d)(3)(i). The BIA, however, expressly adopted
and affirmed the IJ’s decision, and did not make factual findings. Rather, it made a
reliability determination when deciding whether the affidavit was properly
excluded, noting that the government had argued the affidavit was inaccurate and
the witness was not called to testify. And even if we assume that the agency
abused its discretion by excluding the expert’s affidavit, Rios-Rocha has not
demonstrated prejudice. See Hernandez v. Garland, 52 F.4th 757, 766 (9th
Cir. 2022). In reaching its decision, the BIA provided an alternative analysis that
considered the affidavit and nonetheless concluded that Rios-Rocha had not
established that his removal would result in exceptional and extremely unusual
hardship to his qualifying family members. Accordingly, the agency did not err by
excluding the expert’s affidavit.
2. Rios-Rocha also has failed to show that the agency violated his due
process rights by excluding the expert’s affidavit. Rios-Rocha has not
demonstrated that the agency’s exclusion of the affidavit may have affected the
outcome of his proceedings. Accordingly, his due process claim fails. See Lacsina
Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009) (“A due process violation
3 19-73287 occurs where ‘(1) the proceeding was so fundamentally unfair that the alien was
prevented from reasonably presenting his case, and (2) the alien demonstrates
prejudice, which means that the outcome of the proceeding may have been affected
by the alleged violation.’” (quoting Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–
21 (9th Cir. 2006))).
3. Contrary to Rios-Rocha’s assertions, the agency did not misapply the
legal standard as the record shows that it considered the hardship factors
individually and cumulatively. See Salcido-Salcido v. INS, 138 F.3d 1292, 1293
n.1 (9th Cir. 1998) (per curiam); In re Gonzalez Recinas, 23 I. & N. Dec. 467, 472
(B.I.A. 2002) (explaining that the hardship factors must be assessed “in their
totality”—“a ‘cumulative’ analysis”). Specifically, the agency considered the
potential emotional, financial, and health-related circumstances of Rios-Rocha’s
qualifying family members both individually and cumulatively before determining
that the evidence did not surpass the ordinary hardship associated with removal.
See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006 (9th Cir. 2003) (explaining
that an alien must demonstrate hardship “substantially beyond that which
ordinarily would be expected to result from the alien’s deportation” (quoting In re
Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (B.I.A. 2001))).
4. We decline to reach whether substantial evidence supports the
agency’s hardship determination as Rios-Rocha did not raise this issue in his
4 19-73287 opening brief. See Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024,
1033 (9th Cir. 2008) (“[We] will not ordinarily consider matters on appeal that are
not specifically and distinctly argued in appellant’s opening brief . . . .” (quoting
Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986))).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ROBERTO RIOS-ROCHA, No. 19-73287
Petitioner, Agency No. A209-138-817
v. PAMELA BONDI, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted October 22, 2025 Phoenix, Arizona
Before: GRABER, BADE, and LEE, Circuit Judges. Dissent by Judge GRABER. Petitioner Roberto Rios-Rocha, a native and citizen of Mexico, seeks review
of the Board of Immigration Appeals’ (BIA) decision dismissing the appeal of an
immigration judge’s (IJ) denial of his application for cancellation of removal under
8 U.S.C. § 1229b(b)(1). We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition.
“Where, as here, the BIA agrees with the IJ decision and also adds its own
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reasoning, we review the decision of the BIA and those parts of the IJ’s decision
upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th
Cir. 2019) (citing Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011)). We review
de novo questions of law and constitutional claims. Mohammed v. Gonzales, 400
F.3d 785, 791–92 (9th Cir. 2005).
We review “an IJ’s decision to exclude . . . evidence . . . for an abuse of
discretion.” See Vatyan v. Mukasey, 508 F.3d 1179, 1182 (9th Cir. 2007) (citing
United States v. Whitworth, 856 F.2d 1268, 1283 (9th Cir 1988)). But “if the IJ’s
rejection of the [evidence] is based on purely legal grounds, we review de novo.”
See id. (citing Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001)).
We review the agency’s determination of “exceptional and extremely
unusual hardship” under 8 U.S.C. § 1229b(b)(1)(D) for substantial evidence.
Gonzalez-Juarez v. Bondi, 137 F.4th 996, 1003 (9th Cir. 2025). “Under this
standard, we must uphold the agency determination unless the evidence compels a
contrary conclusion.” Duran-Rodriguez, 918 F.3d at 1028 (citing INS v.
Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)).
1. Rios-Rocha has not shown that the agency erred as a matter of law or
abused its discretion by excluding his expert’s affidavit. Rios-Rocha first argues
that the IJ erred by failing to state his reasons on the record for excluding the
expert’s affidavit. But the IJ’s reasons for excluding the affidavit are reasonably
2 19-73287 discernable from the hearing transcript. See Garland v. Ming Dai, 593 U.S. 357,
369 (2021). Rios-Rocha next argues that the BIA engaged in impermissible
fact-finding by accepting the government’s arguments on the admissibility of the
affidavit. See 8 C.F.R. § 1003.1(d)(3)(i). The BIA, however, expressly adopted
and affirmed the IJ’s decision, and did not make factual findings. Rather, it made a
reliability determination when deciding whether the affidavit was properly
excluded, noting that the government had argued the affidavit was inaccurate and
the witness was not called to testify. And even if we assume that the agency
abused its discretion by excluding the expert’s affidavit, Rios-Rocha has not
demonstrated prejudice. See Hernandez v. Garland, 52 F.4th 757, 766 (9th
Cir. 2022). In reaching its decision, the BIA provided an alternative analysis that
considered the affidavit and nonetheless concluded that Rios-Rocha had not
established that his removal would result in exceptional and extremely unusual
hardship to his qualifying family members. Accordingly, the agency did not err by
excluding the expert’s affidavit.
2. Rios-Rocha also has failed to show that the agency violated his due
process rights by excluding the expert’s affidavit. Rios-Rocha has not
demonstrated that the agency’s exclusion of the affidavit may have affected the
outcome of his proceedings. Accordingly, his due process claim fails. See Lacsina
Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir. 2009) (“A due process violation
3 19-73287 occurs where ‘(1) the proceeding was so fundamentally unfair that the alien was
prevented from reasonably presenting his case, and (2) the alien demonstrates
prejudice, which means that the outcome of the proceeding may have been affected
by the alleged violation.’” (quoting Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–
21 (9th Cir. 2006))).
3. Contrary to Rios-Rocha’s assertions, the agency did not misapply the
legal standard as the record shows that it considered the hardship factors
individually and cumulatively. See Salcido-Salcido v. INS, 138 F.3d 1292, 1293
n.1 (9th Cir. 1998) (per curiam); In re Gonzalez Recinas, 23 I. & N. Dec. 467, 472
(B.I.A. 2002) (explaining that the hardship factors must be assessed “in their
totality”—“a ‘cumulative’ analysis”). Specifically, the agency considered the
potential emotional, financial, and health-related circumstances of Rios-Rocha’s
qualifying family members both individually and cumulatively before determining
that the evidence did not surpass the ordinary hardship associated with removal.
See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006 (9th Cir. 2003) (explaining
that an alien must demonstrate hardship “substantially beyond that which
ordinarily would be expected to result from the alien’s deportation” (quoting In re
Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (B.I.A. 2001))).
4. We decline to reach whether substantial evidence supports the
agency’s hardship determination as Rios-Rocha did not raise this issue in his
4 19-73287 opening brief. See Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024,
1033 (9th Cir. 2008) (“[We] will not ordinarily consider matters on appeal that are
not specifically and distinctly argued in appellant’s opening brief . . . .” (quoting
Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986))).
PETITION FOR REVIEW DENIED.1
1 The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal, Dkt. 1, is otherwise denied.
5 19-73287 Rios-Rocha v. Bondi, No. 19-73287 FILED GRABER, Circuit Judge, dissenting: NOV 6 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I respectfully dissent.
The immigration judge (“IJ”) erred by excluding the expert’s affidavit. To
the extent that the IJ and the Board of Immigration Appeals (“BIA”) relied on the
expert’s unavailability for cross-examination, they legally erred. See Sanchez v.
Holder, 704 F.3d 1107, 1109 (9th Cir. 2012) (per curiam) (“The Federal Rules of
Evidence . . . do not apply in immigration hearings.”). To the extent that they
relied on the government’s explanation that “the affidavit contains factual errors,
including a mischaracterization of the [Petitioner’s] son’s asthma type,” that
assertion is entirely unsupported by the record. “Where the BIA does not consider
all the evidence before it”—which may be indicated by the BIA’s “misstating the
record”—its “decision is legal error.” Flores Molina v. Garland, 37 F.4th 626, 632
(9th Cir. 2022) (citation omitted).
Nor is the BIA’s “alternative” ruling a sufficient reason to deny the petition.
The BIA gave only one reason: “even if this evidence had been admitted, the
[Petitioner] has failed to demonstrate that treatment for his son’s asthma would not
continue to be available at no cost to the [Petitioner’s] family in the United States
after the [Petitioner] returns to his country.” The fact that Petitioner’s family will continue to have access to free medical
care in the United States has no bearing on whether the expert affidavit’s content
would have affected the agency’s hardship analysis. The agency is required to
consider “all hardship factors . . . in the aggregate.” Matter of Monreal-Aguinaga,
23 I. & N. Dec. 56, 64 (BIA 2001). The agency could not have conducted the
required “cumulative” analysis of those factors, see Matter of Gonzalez Recinas,
23 I. & N. Dec. 467, 472 (BIA 2002), because the affidavit contained information
that was relevant to the assessment of hardship and that was not otherwise in the
record. For example, the expert opined that the stress that Petitioner’s son and wife
would experience as a result of his removal likely would aggravate his son’s
asthma which, in turn, could adversely affect his son’s long-term pulmonary health,
academic success, and professional achievement, as well as his wife’s ability to
keep a job. Because we lack jurisdiction to reweigh the hardship factors, see
Mendez-Castro v. Mukasey, 552 F.3d 975, 980–81 (9th Cir. 2009), abrogated on
other grounds by Wilkinson v. Garland, 601 U.S. 209 (2024), I would grant the
petition and remand for a new hearing.