Appellate Case: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 20, 2021 _________________________________ Christopher M. Wolpert Clerk of Court MARCO TULIO RODRIGUEZ ROMERO,
Petitioner, No. 21-9515 v. (Petition for Review)
MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________
Marco Tulio Rodriguez Romero, a native and citizen of Guatemala, petitions
for review of the decision of the Board of Immigration Appeals (the Board)
upholding the immigration judge’s denial of his application for cancellation of
removal. We dismiss the petition in part for lack of jurisdiction and deny the
remainder as moot.
* 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. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 2
BACKGROUND
In 2002 Mr. Romero entered the United States without being admitted or
paroled after inspection and settled in Colorado. In addition to fathering three United
States-citizen children, he accrued three Colorado misdemeanor criminal
convictions—2012 and 2014 convictions for driving under the influence, and a 2014
conviction for an offense apparently referred to commonly as harassment
(strike/shove/kick).
Shortly after his 2014 convictions the government commenced removal
proceedings, prompting Mr. Romero to apply for cancellation of removal. The
immigration judge denied the application, finding that he did not meet the
requirements of showing (1) he was “a person of good moral character” for the ten
years preceding the application, 8 U.S.C. § 1229b(b)(1)(B), and (2) his children
would experience “exceptional and extremely unusual hardship” from his removal,
id. § 1229b(b)(1)(D). The Board agreed with the immigration judge on both points
and dismissed the appeal.
DISCUSSION
Mr. Romero challenges the moral-character and extreme-hardship decisions,
both directly and by attacking the agency’s credibility finding. We need examine
only the arguments relevant to hardship, because that finding is determinative.
Congress has limited our review of the agency’s denial of cancellation of
removal. Under 8 U.S.C. § 1252(a)(2)(B)(i), “no court shall have jurisdiction to
review . . . any judgment regarding the granting of relief under” certain sections,
2 Appellate Case: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 3
including § 1229b. “Our court reads [§ 1252(a)(2)(B)(i)] as denying jurisdiction to
review the discretionary aspects of a decision concerning cancellation of removal
under § 1229b(b)(1),” including “the determination of whether the petitioner’s
removal from the United States would result in exceptional and extremely unusual
hardship to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D).” Galeano-Romero
v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020) (internal quotation marks omitted).
Nevertheless, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review
“constitutional claims” and “questions of law,” “including those that arise in the
circumstances specified at § 1229b(b)(1),” Galeano-Romero, 968 F.3d at 1182.
The Board adopted the immigration judge’s analysis of hardship. Mr. Romero
argues that the immigration judge “effectively dismissed” hardship factors, “failed to
analyze them appropriately,” and “failed to balance the cumulative hardship factors.”
Opening Br. at 23. He asserts that the immigration judge abused his discretion, and
that the Board’s “adoption and affirmance of the [immigration judge’s decision]
without any further evaluation of Mr. Romero’s hardship appeal grounds are a
furtherance of the [immigration judge’s] abuse of discretion,” id. at 24.
These allegations about the agency’s exercise of discretion, however, are
exactly the type of contentions § 1252(a)(2)(B)(i) precludes us from reviewing.
See Galeano-Romero, 968 F.3d at 1181, 1184. Nor can Mr. Romero rely on
§ 1252(a)(2)(D). “An alien does not present a colorable constitutional claim capable
of avoiding the jurisdictional bar by arguing that the evidence was incorrectly
weighed, insufficiently considered, or supports a different outcome.”
3 Appellate Case: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 4
Galeano-Romero, 968 F.3d at 1184-85 (internal quotation marks omitted).
Moreover, “[a] petition for review does not raise a question of law by disputing the
Board’s appraisal of the degree of hardship likely to his [qualifying relatives],” id. at
1182, or by criticizing “how the Board exercise[d] its discretion” even if such
criticisms are “framed as a challenge to the application of a legal standard to
established facts,” id. at 1184.
Mr. Romero’s credibility arguments also indirectly challenge the hardship
determination. But as with the hardship arguments, we lack jurisdiction to review his
contention that the Board “affirmed incorrect factual findings” and to grant his
request to “review the [Board’s] factual findings for substantial evidence,” Aplt.
Opening Br. at 16. See Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016)
(credibility determinations are factual findings); Arambula-Medina v. Holder,
572 F.3d 824, 828 (10th Cir. 2009) (“We have construed the term ‘judgment’ in
[§ 1252(a)(2)(B)(i)] as referring to the discretionary aspects of a decision concerning
cancellation of removal. This includes any underlying factual determinations.”
(citation omitted)).
We recognize that as part of his credibility argument, Mr. Romero asserts that
the immigration judge and Board were biased against him. This portion of the
argument invokes § 1252(a)(2)(D), because Mr. Romero is entitled to “a fair and
impartial decision-maker” as a matter of due process. Lucio-Rayos v. Sessions, 875
F.3d 573, 576 (10th Cir. 2017). For two reasons, however, we also lack jurisdiction
to review this contention. First, Mr. Romero’s assertion that the Board was biased
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Appellate Case: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 20, 2021 _________________________________ Christopher M. Wolpert Clerk of Court MARCO TULIO RODRIGUEZ ROMERO,
Petitioner, No. 21-9515 v. (Petition for Review)
MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HARTZ, BACHARACH, and CARSON, Circuit Judges. _________________________________
Marco Tulio Rodriguez Romero, a native and citizen of Guatemala, petitions
for review of the decision of the Board of Immigration Appeals (the Board)
upholding the immigration judge’s denial of his application for cancellation of
removal. We dismiss the petition in part for lack of jurisdiction and deny the
remainder as moot.
* 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. 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: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 2
BACKGROUND
In 2002 Mr. Romero entered the United States without being admitted or
paroled after inspection and settled in Colorado. In addition to fathering three United
States-citizen children, he accrued three Colorado misdemeanor criminal
convictions—2012 and 2014 convictions for driving under the influence, and a 2014
conviction for an offense apparently referred to commonly as harassment
(strike/shove/kick).
Shortly after his 2014 convictions the government commenced removal
proceedings, prompting Mr. Romero to apply for cancellation of removal. The
immigration judge denied the application, finding that he did not meet the
requirements of showing (1) he was “a person of good moral character” for the ten
years preceding the application, 8 U.S.C. § 1229b(b)(1)(B), and (2) his children
would experience “exceptional and extremely unusual hardship” from his removal,
id. § 1229b(b)(1)(D). The Board agreed with the immigration judge on both points
and dismissed the appeal.
DISCUSSION
Mr. Romero challenges the moral-character and extreme-hardship decisions,
both directly and by attacking the agency’s credibility finding. We need examine
only the arguments relevant to hardship, because that finding is determinative.
Congress has limited our review of the agency’s denial of cancellation of
removal. Under 8 U.S.C. § 1252(a)(2)(B)(i), “no court shall have jurisdiction to
review . . . any judgment regarding the granting of relief under” certain sections,
2 Appellate Case: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 3
including § 1229b. “Our court reads [§ 1252(a)(2)(B)(i)] as denying jurisdiction to
review the discretionary aspects of a decision concerning cancellation of removal
under § 1229b(b)(1),” including “the determination of whether the petitioner’s
removal from the United States would result in exceptional and extremely unusual
hardship to a qualifying relative under 8 U.S.C. § 1229b(b)(1)(D).” Galeano-Romero
v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020) (internal quotation marks omitted).
Nevertheless, under 8 U.S.C. § 1252(a)(2)(D), we retain jurisdiction to review
“constitutional claims” and “questions of law,” “including those that arise in the
circumstances specified at § 1229b(b)(1),” Galeano-Romero, 968 F.3d at 1182.
The Board adopted the immigration judge’s analysis of hardship. Mr. Romero
argues that the immigration judge “effectively dismissed” hardship factors, “failed to
analyze them appropriately,” and “failed to balance the cumulative hardship factors.”
Opening Br. at 23. He asserts that the immigration judge abused his discretion, and
that the Board’s “adoption and affirmance of the [immigration judge’s decision]
without any further evaluation of Mr. Romero’s hardship appeal grounds are a
furtherance of the [immigration judge’s] abuse of discretion,” id. at 24.
These allegations about the agency’s exercise of discretion, however, are
exactly the type of contentions § 1252(a)(2)(B)(i) precludes us from reviewing.
See Galeano-Romero, 968 F.3d at 1181, 1184. Nor can Mr. Romero rely on
§ 1252(a)(2)(D). “An alien does not present a colorable constitutional claim capable
of avoiding the jurisdictional bar by arguing that the evidence was incorrectly
weighed, insufficiently considered, or supports a different outcome.”
3 Appellate Case: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 4
Galeano-Romero, 968 F.3d at 1184-85 (internal quotation marks omitted).
Moreover, “[a] petition for review does not raise a question of law by disputing the
Board’s appraisal of the degree of hardship likely to his [qualifying relatives],” id. at
1182, or by criticizing “how the Board exercise[d] its discretion” even if such
criticisms are “framed as a challenge to the application of a legal standard to
established facts,” id. at 1184.
Mr. Romero’s credibility arguments also indirectly challenge the hardship
determination. But as with the hardship arguments, we lack jurisdiction to review his
contention that the Board “affirmed incorrect factual findings” and to grant his
request to “review the [Board’s] factual findings for substantial evidence,” Aplt.
Opening Br. at 16. See Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016)
(credibility determinations are factual findings); Arambula-Medina v. Holder,
572 F.3d 824, 828 (10th Cir. 2009) (“We have construed the term ‘judgment’ in
[§ 1252(a)(2)(B)(i)] as referring to the discretionary aspects of a decision concerning
cancellation of removal. This includes any underlying factual determinations.”
(citation omitted)).
We recognize that as part of his credibility argument, Mr. Romero asserts that
the immigration judge and Board were biased against him. This portion of the
argument invokes § 1252(a)(2)(D), because Mr. Romero is entitled to “a fair and
impartial decision-maker” as a matter of due process. Lucio-Rayos v. Sessions, 875
F.3d 573, 576 (10th Cir. 2017). For two reasons, however, we also lack jurisdiction
to review this contention. First, Mr. Romero’s assertion that the Board was biased
4 Appellate Case: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 5
amounts to no more than a complaint that the Board approved the immigration
judge’s allegedly biased decision. But he did not argue before the Board that the
immigration judge was biased. Because this is a matter that the Board could have
remedied, his failure to exhaust his administrative remedies deprives us of
jurisdiction. See Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010)
(“It is a fundamental principle of administrative law that an agency must have the
opportunity to rule on a challenger’s arguments before the challenger may bring
those arguments to court.”); Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th
Cir. 2008) (“[O]bjections to procedural errors or defects that the [Board] could have
remedied must be exhausted even if the alien later attempts to frame them in terms of
constitutional due process on judicial review.”). Second, our review of his bias
argument reveals that it is in essence merely an attack on the agency’s evaluation of
the evidence. Such “challenge[s] to the agency’s discretionary and fact-finding
exercises cloaked in constitutional garb” are “outside the scope of judicial review.”
Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir. 2007) (internal quotation marks
omitted).
In short, Mr. Romero cannot overcome the agency’s determination that he
failed to satisfy the hardship requirement, either directly or by attacking the
credibility finding. And without showing hardship, he cannot obtain cancellation of
removal even if we were to rule in his favor on his moral-character arguments.
See 8 U.S.C. § 1229b(b)(1). Accordingly, those arguments are moot.
5 Appellate Case: 21-9515 Document: 010110621236 Date Filed: 12/20/2021 Page: 6
CONCLUSION
We dismiss those portions of the petition for review challenging the hardship
and credibility findings and arguing that the decisionmakers were biased. We deny
the remainder of the petition as moot.
Entered for the Court
Harris L Hartz Circuit Judge