FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 16, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JOSE ALEJANDRO VALERIO-LOPEZ, a/k/a Pedro Torres-Gamez,
Petitioner,
v. No. 20-9588 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT** _________________________________
Before MORITZ, BALDOCK, and KELLY, Circuit Judges. _________________________________
Petitioner Jose Alejandro Valerio-Lopez filed an application for cancellation
of removal under 8 U.S.C. § 1229b(b), which an immigration judge (IJ) denied after
a hearing. The Board of Immigration Appeals (BIA) affirmed on appeal.
On March 11, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Valerio-Lopez then filed a petition for review. We dismiss the petition in part for
lack of jurisdiction, and affirm in part the BIA’s decision denying Valerio-Lopez’s
application.
I. Background
Valerio-Lopez is a native of Mexico who last entered the United States without
inspection in 2004. In April 2010, the Department of Homeland Security issued
Valerio-Lopez a Notice to Appear in removal proceedings, charging him with being
subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i).
Valerio-Lopez appeared in immigration court in January 2011 and conceded
removability. He indicated his intent to apply for cancellation of removal under
8 U.S.C. § 1229b(b)(1). Later that year Valerio-Lopez submitted that application,
arguing that his removal would result in hardship to his four U.S.-born children.
See id. § 1229b(b)(1)(D).
The IJ held a hearing in June 2018. By that time, Valerio-Lopez’s two older
children had reached the age of 21 and therefore were not considered qualifying
relatives under § 1229b(b)(1)(D). Valerio-Lopez testified, however, that if he were
removed to Mexico, his two younger daughters, E.V.M. and A.V.M., would suffer
the requisite “exceptional and extremely unusual hardship” under § 1229b(b)(1)(D).
He testified that E.V.M., who was born in 2007, had received several months of
counseling for anxiety in 2010 when Valerio-Lopez was temporarily placed in
immigration detention. Valerio-Lopez submitted a corroborating letter from the
licensed professional counselor who treated E.V.M. Valerio-Lopez acknowledged,
2 however, that E.V.M. no longer requires any treatment or medication. He also
testified that his youngest daughter, A.V.M., has asthma that was severe at one time
but is now controlled with an inhaler. Finally, Valerio-Lopez testified that if he were
removed to Mexico his minor daughters would suffer financial hardship because he is
the sole financial provider for his family and his wife Erica, who plans to stay in the
United States with E.V.M and A.V.M in the event of her husband’s removal, would
be forced to find employment.
The IJ accepted as credible Valerio-Lopez’s testimony and other evidence.
The IJ also concluded Valerio-Lopez had satisfied three of the four elements of
§ 1229b(b)(1)—namely, he had been physically present in the United States for a
continuous period of 10 years prior to the filing of his application; he had been a
person of good moral character during that time; and he had not been convicted of
any disqualifying criminal offenses. See id. § 1229b(b)(1)(A)-(C).
As to the fourth element, however, the IJ concluded removal would not result
in the requisite level of hardship. See id. § 1229b(b)(1)(D). The IJ noted that while
E.V.M. had been diagnosed with anxiety, she had since recovered. She further
observed that A.V.M.’s asthma was adequately managed with an inhaler. Finally, the
IJ found that while E.V.M. and A.V.M. would face some emotional and financial
hardship if their father were removed to Mexico, that hardship, even taken in the
aggregate, would not meet the “exceptional and extremely unusual” standard. On
appeal, the BIA adopted the IJ’s reasoning and affirmed in a two-page opinion. This
petition followed.
3 II. Discussion
Valerio-Lopez makes four arguments. First, he contends the BIA failed to
consider the hardship his removal would cause his two oldest children when the delay in
hearing his application caused those children to “age out.” Second, he argues he received
ineffective assistance of counsel. Third, he argues that in its hardship analysis, the BIA
committed legal error in relying upon In re J-J-G-, 27 I. & N. Dec. 808 (BIA 2020).
Finally, Valerio-Lopez argues the BIA committed legal error by mischaracterizing or
ignoring relevant hardship evidence. We dismiss his first two arguments for failure to
exhaust, and we reject his other two arguments on the merits.
A. Failure to Exhaust
Valerio-Lopez did not raise before the agency his argument concerning the delay
in having his application heard and the resulting inability to consider hardship to his two
older children. We may review only those arguments for which a petitioner has
exhausted all administrative remedies. 8 U.S.C. § 1252(d)(1). Thus, “the failure to raise
an issue on appeal to the BIA constitutes failure to exhaust administrative remedies with
respect to that question and deprives the Court of Appeals of jurisdiction to hear the
matter.” Robles-Garcia v. Barr, 944 F.3d 1280, 1283 (10th Cir. 2019) (alterations,
italics, and internal quotation marks omitted). Because Valerio-Lopez did not present
this argument to the IJ or the BIA, we lack jurisdiction to review it in the first instance.
Similarly, Valerio-Lopez did not raise his ineffective assistance of counsel
argument before the BIA. “The BIA permits an alien to move to reopen the
administrative proceedings when his counsel’s incompetence has prevented him from
4 reasonably presenting his case.” Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.
1999) (internal quotation marks omitted).
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 16, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JOSE ALEJANDRO VALERIO-LOPEZ, a/k/a Pedro Torres-Gamez,
Petitioner,
v. No. 20-9588 (Petition for Review) MERRICK B. GARLAND, United States Attorney General,
Respondent. _________________________________
ORDER AND JUDGMENT** _________________________________
Before MORITZ, BALDOCK, and KELLY, Circuit Judges. _________________________________
Petitioner Jose Alejandro Valerio-Lopez filed an application for cancellation
of removal under 8 U.S.C. § 1229b(b), which an immigration judge (IJ) denied after
a hearing. The Board of Immigration Appeals (BIA) affirmed on appeal.
On March 11, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** 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. Valerio-Lopez then filed a petition for review. We dismiss the petition in part for
lack of jurisdiction, and affirm in part the BIA’s decision denying Valerio-Lopez’s
application.
I. Background
Valerio-Lopez is a native of Mexico who last entered the United States without
inspection in 2004. In April 2010, the Department of Homeland Security issued
Valerio-Lopez a Notice to Appear in removal proceedings, charging him with being
subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i).
Valerio-Lopez appeared in immigration court in January 2011 and conceded
removability. He indicated his intent to apply for cancellation of removal under
8 U.S.C. § 1229b(b)(1). Later that year Valerio-Lopez submitted that application,
arguing that his removal would result in hardship to his four U.S.-born children.
See id. § 1229b(b)(1)(D).
The IJ held a hearing in June 2018. By that time, Valerio-Lopez’s two older
children had reached the age of 21 and therefore were not considered qualifying
relatives under § 1229b(b)(1)(D). Valerio-Lopez testified, however, that if he were
removed to Mexico, his two younger daughters, E.V.M. and A.V.M., would suffer
the requisite “exceptional and extremely unusual hardship” under § 1229b(b)(1)(D).
He testified that E.V.M., who was born in 2007, had received several months of
counseling for anxiety in 2010 when Valerio-Lopez was temporarily placed in
immigration detention. Valerio-Lopez submitted a corroborating letter from the
licensed professional counselor who treated E.V.M. Valerio-Lopez acknowledged,
2 however, that E.V.M. no longer requires any treatment or medication. He also
testified that his youngest daughter, A.V.M., has asthma that was severe at one time
but is now controlled with an inhaler. Finally, Valerio-Lopez testified that if he were
removed to Mexico his minor daughters would suffer financial hardship because he is
the sole financial provider for his family and his wife Erica, who plans to stay in the
United States with E.V.M and A.V.M in the event of her husband’s removal, would
be forced to find employment.
The IJ accepted as credible Valerio-Lopez’s testimony and other evidence.
The IJ also concluded Valerio-Lopez had satisfied three of the four elements of
§ 1229b(b)(1)—namely, he had been physically present in the United States for a
continuous period of 10 years prior to the filing of his application; he had been a
person of good moral character during that time; and he had not been convicted of
any disqualifying criminal offenses. See id. § 1229b(b)(1)(A)-(C).
As to the fourth element, however, the IJ concluded removal would not result
in the requisite level of hardship. See id. § 1229b(b)(1)(D). The IJ noted that while
E.V.M. had been diagnosed with anxiety, she had since recovered. She further
observed that A.V.M.’s asthma was adequately managed with an inhaler. Finally, the
IJ found that while E.V.M. and A.V.M. would face some emotional and financial
hardship if their father were removed to Mexico, that hardship, even taken in the
aggregate, would not meet the “exceptional and extremely unusual” standard. On
appeal, the BIA adopted the IJ’s reasoning and affirmed in a two-page opinion. This
petition followed.
3 II. Discussion
Valerio-Lopez makes four arguments. First, he contends the BIA failed to
consider the hardship his removal would cause his two oldest children when the delay in
hearing his application caused those children to “age out.” Second, he argues he received
ineffective assistance of counsel. Third, he argues that in its hardship analysis, the BIA
committed legal error in relying upon In re J-J-G-, 27 I. & N. Dec. 808 (BIA 2020).
Finally, Valerio-Lopez argues the BIA committed legal error by mischaracterizing or
ignoring relevant hardship evidence. We dismiss his first two arguments for failure to
exhaust, and we reject his other two arguments on the merits.
A. Failure to Exhaust
Valerio-Lopez did not raise before the agency his argument concerning the delay
in having his application heard and the resulting inability to consider hardship to his two
older children. We may review only those arguments for which a petitioner has
exhausted all administrative remedies. 8 U.S.C. § 1252(d)(1). Thus, “the failure to raise
an issue on appeal to the BIA constitutes failure to exhaust administrative remedies with
respect to that question and deprives the Court of Appeals of jurisdiction to hear the
matter.” Robles-Garcia v. Barr, 944 F.3d 1280, 1283 (10th Cir. 2019) (alterations,
italics, and internal quotation marks omitted). Because Valerio-Lopez did not present
this argument to the IJ or the BIA, we lack jurisdiction to review it in the first instance.
Similarly, Valerio-Lopez did not raise his ineffective assistance of counsel
argument before the BIA. “The BIA permits an alien to move to reopen the
administrative proceedings when his counsel’s incompetence has prevented him from
4 reasonably presenting his case.” Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.
1999) (internal quotation marks omitted). “[B]ecause the BIA provides a mechanism for
hearing an ineffective assistance claim, an alien’s failure to raise the claim to the BIA
deprives this court of jurisdiction to review it.” Id. We therefore lack jurisdiction over
Valerio-Lopez’s ineffective assistance argument.
B. Cancellation of Removal
Our jurisdiction over the remaining two arguments is limited. The
Immigration and Nationality Act provides that “no court shall have jurisdiction to
review . . . any judgment regarding the granting of relief under section . . . 1229b.”
8 U.S.C. § 1252(a)(2)(B)(i). This provision precludes jurisdiction to review the
discretionary aspects of a decision concerning cancellation of removal under
§ 1229b(b)(1). Galeano-Romero v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020).
“Such discretionary aspects include any underlying factual determinations as well as
the determination of whether . . . removal . . . would result in exceptional and
extremely unusual hardship to a qualifying relative under 8 U.S.C.
§ 1229b(b)(1)(D).” Id. (internal quotation marks omitted).
The INA does, however, provide jurisdiction to review “constitutional claims”
and “questions of law”—including those arising under § 1229b(b)(1). See
§ 1252(a)(2)(D). Valerio-Lopez attempts to raise two questions of law, both of
which we reject.
First, Valerio-Lopez observes that in rejecting his application, the BIA cited to
In re J-J-G-, 27 I. & N. Dec. 808, which he contends impermissibly redefines
5 hardship beyond what § 1229b(b)(1)(D) requires. We disagree. In re J-J-G- held
that to the extent a cancellation application is based on the health of a qualifying
relative, the applicant must present “persuasive and sufficiently specific testimony
regarding the seriousness of a qualifying relative’s medical condition . . . .”
27 I. & N. Dec. at 811-12. Thus, In re J-J-G- does not redefine the hardship
standard, but simply specifies the type of evidence required to meet it. The BIA cited
In re J-J-G- in support of its observation that the agency’s analysis must be based on
a “consider[ation of] the hardship factors in the aggregate.” R. at 4; see In re J-J-G-,
27 I. & N. Dec. at 811 (observing that the hardship standard “is based on a
cumulative consideration of all hardship factors”). We discern no error in the BIA’s
reliance on In re J-J-G-.
Second, Valerio-Lopez asserts the BIA committed legal error by
mischaracterizing and ignoring hardship evidence. This argument, however, amounts
to a disagreement with how the BIA weighed the hardship factors in light of
E.V.M.’s and A.V.M.’s medical conditions. We lack jurisdiction over such
determinations. See, e.g., Galeano-Romero, 968 F.3d at 1182 n.8 (holding argument
that BIA “improperly discount[ed] the hardship his wife would suffer upon
[petitioner’s] removal . . . boils down to a contention that the [BIA] improperly
weighed the” evidence). Even if Valerio-Lopez’s arguments could be characterized
as questions of law, they are meritless. He contends the BIA erred in stating
A.V.M.’s asthma was under control, but he himself testified that her asthma is
controlled with an inhaler and that “[s]he’s not really using it” anymore. R. at 185.
6 Similarly, he argues the BIA mischaracterized E.V.M.’s anxiety as having been
resolved, but the BIA actually found that while Valerio-Lopez’s “removal may have
some impact on [E.V.M.’s] life and development,” the “record show[ed] that with
therapy, [E.V.M.] learned to successfully cope with her anxiety even when her father
was not present.” R. at 4.
In short, we hold the BIA committed no legal error in denying the application
for cancellation, and therefore affirm the BIA’s decision.
III. Conclusion
We dismiss in part Valerio-Lopez’s petition for failure to exhaust his
arguments concerning hardship to his now-adult children and ineffective assistance
of counsel. As to his exhausted arguments, we affirm the BIA’s denial of the
application for cancellation.
Entered for the Court
Nancy L. Moritz Circuit Judge