Tolentino-Hernandez v. Garland, 20-4021
| Decision Date | 13 October 2021 |
| Docket Number | 20-4021 |
| Parties | JAVIER TOLENTINO-HERNANDEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON PETITION FOR REVIEW OF A FINAL ORDER FROM THE BOARD OF IMMIGRATION APPEALS
Before: GILMAN, THAPAR, and NALBANDIAN, Circuit Judges.
An immigration judge (IJ) denied Javier Tolentino-Hernandez's (Tolentino's) application for cancellation of removal on the basis that Tolentino failed to meet the statutory standard of "exceptional and extremely unusual hardship" to his United States children, a showing necessary to warrant cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D). Tolentino appealed the IJ's decision to the Board of Immigration Appeals (BIA), which affirmed the decision and dismissed Tolentino's appeal. For the reasons set forth below, we conclude that the IJ and the BIA committed no error. We therefore DENY the petition for review.
Tolentino is a Mexican citizen who unlawfully entered the United States in 2006. He is married to Olga Karina Mendoza, who is also a Mexican citizen unlawfully present in the United States. Tolentino and his wife have three children, each of whom is a United States citizen. At the time of Tolentino's hearing, which was held in October 2017, his children were six years old, five years old, and six months old. Both Tolentino's wife and children intend to relocate to Mexico if Tolentino is removed.
During his hearing, Tolentino presented documentary and testimonial evidence in support of his contention that his children will suffer exceptional and extremely unusual hardship in the form of financial, educational, emotional, acculturational, and medical hardship if Tolentino is removed. Although acknowledging that Tolentino's children will face indisputable challenges, the IJ ultimately found that the hardships asserted did not rise to the level of being exceptional and extremely unusual. Tolentino timely appealed the IJ's decision to the BIA, which agreed that Tolentino had failed to meet the hardship standard. This timely petition for review followed.
The Immigration and Nationality Act (INA) allows us to review "constitutional claims or questions of law raised upon a petition for review." 8 U.S.C. § 1252(a)(2)(D). We do not have jurisdiction to review "discretionary or factual issues," Singh v. Rosen, 984 F.3d 1142, 1149 (6th Cir. 2021), but the Supreme Court has interpreted the phrase "questions of law" in § 1252(a)(2)(D) as extending to mixed questions of fact and law. Guerrero-Lasprilla v. Barr, 140 S.Ct. 1062, 1068-69 (2020). Because the BIA's exceptional-and-extremely-unusual-hardship determination is a mixed question of fact and law, we have jurisdiction to assess the merits of Tolentino's claims. See Singh, 984 F.3d at 1154 ().
When the BIA affirms an IJ's decision but adds its own comments, "we review both the IJ's decision and the [BIA's] additional remarks." Skripkov v. Barr, 966 F.3d 480, 486 (6th Cir. 2020) (quoting Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir. 2009)). Section 1252(a)(2)(D) permits judicial review of hardship determinations, but the provision is silent as to the appropriate standard of review. See Singh, 984 F.3d at 1154 (). In Singh, this court indicated that the "nature of this mixed question likely signals deference" to the BIA, but it refrained from selecting the proper standard. Id. This court instead concluded that "[n]o matter the standard, the [BIA] correctly held that [the applicant] failed to establish the required 'exceptional and extremely unusual hardship' to his family." Id. (quoting 8 U.S.C. § 1229b(b)(1)(D)). We likewise refrain from choosing the applicable standard of review because, no matter the standard applied, we conclude that Tolentino has not shown that exceptional and extremely unusual hardship to his children will result from his removal. See Singh, 984 F.3d at 1154; Araujo-Padilla v. Garland, 854 Fed.Appx. 646, 649 (6th Cir. 2021) (); Ramirez-Garcia v. Garland, No. 20-4005, __ Fed.Appx. ___, 2021 WL 3017274, at * 1 (6th Cir. July 16, 2021) (same).
Tolentino does not dispute the legal test that the IJ and the BIA applied in assessing hardship. Rather, he argues that the IJ and the BIA failed to adequately consider the full scope of the factors relevant to a cancellation-of-removal hardship analysis. Under §§ 1229b(b)(1)(A)-(D) of the INA, noncitizens subject to removal proceedings are eligible for cancellation of removal if they demonstrate that they (1) have been "physically present in the United States for at least 10 years," (2) have "been a person of good moral character," (3) have not "been convicted of a specified criminal offense," and (4) have "established that removal would result in exceptional and extremely unusual hardship" to their "spouse, parent, or child, who is a United States citizen or lawful permanent resident." In re Gonzalez Recinas, 23 I. & N. Dec. 467, 468 (B.I.A. 2002). The issue before us is whether the IJ and the BIA properly concluded that Tolentino failed to establish that his removal would result in exceptional and extremely unusual hardship to his children. We hold that they did not err in their analysis.
To establish exceptional and extremely unusual hardship, an applicant for cancellation of removal must provide "evidence of harm to his spouse, parent, or child substantially beyond that which ordinarily would be expected to result" from the noncitizen's removal. Araujo-Padilla, 854 Fed.Appx. at 649 (emphasis in original) (quoting In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 59 (B.I.A. 2001)); 8 U.S.C. § 1229a(c)(4)(A) (). The reviewing tribunal must consider the individual and the aggregate effect of "the age, health, and circumstances of the qualifying family members, including how a lower standard of living or adverse country conditions . . . might affect those relatives." In re Gonzalez Recinas, 23 I. & N. Dec. at 468. A lower standard of living or adverse country conditions, however, "generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship." In re Monreal-Aguinaga, 23 I. & N. Dec. at 63-64. If the qualifying relative is a child, a successful applicant might show, for example, that the child has "very serious health issues, or compelling special needs in school." Id. at 63.
Here, Tolentino argues that the IJ and the BIA erred because they failed to adequately consider and assess the cumulative weight of five alleged hardships: (1) deterioration of his children's standard of living due to financial hardship; (2) lack of educational opportunities in Mexico; (3) mental, emotional, and cultural hardship resulting from relocation; (4) almost-certain medical hardship; and (5) the fact that Tolentino has no other lawful means of immigrating to the United States. He also argues that the IJ's and the BIA's failure to cumulatively weigh the unique circumstances of his case violated his Fifth Amendment right to a fundamentally fair hearing. We address Tolentino's arguments in turn below.
First, Tolentino contends that his children will experience financial hardship and a lower standard of living due to Tolentino's removal. The IJ and the BIA acknowledged that Tolentino and his family will face economic challenges that might affect the standard of living to which the children are accustomed. Both explained, however, that (1) financial hardship and "[g]eneral contentions concerning poor conditions in Mexico" are within the realm of hardships to be expected upon removal, and (2) the anticipated decline in Tolentino's earning power and financial status in Mexico --and its impact on his children's standard of living--are concerns mitigated by other circumstances in the record. For example, the IJ observed that Tolentino is young, healthy, and physically able to maintain employment in Mexico. The IJ also found that Tolentino's wife is capable of assisting "with the family's financial obligations." Tolentino further testified that he and his family could temporarily reside with his parents in Mexico while seeking employment.
We agree with the IJ's and the BIA's reasoning. Although the record establishes that the economic conditions and financial opportunities in Mexico are not equal to the opportunities that Tolentino has had in the United States--and that the children's standard of living will decline as a result--these circumstances do not rise to the level of exceptional and extremely unusual hardship. Financial hardship is within the realm of expected hardship, and other factors in the record mitigate the financial concerns raised. See Araujo-Padilla, 854 Fed.Appx. at 650-51 ().
Second Tolentino argues that his children will have limited educational opportunities in Mexico. Based on the evidence presented, the IJ found that Tolentino's children did not have any compelling special needs in school, and the BIA likewise concluded that the children did not have any educational issues. Binding precedent provides that "diminished educational options alone do not establish...
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