United States Court of Appeals For the First Circuit

No. 19-1687

JOSE NOLBERTO TACURI-TACURI,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Thompson and Kayatta, Circuit Judges.*

Casey L. Riley for petitioner. Jennifer Mascott, United States Department of Justice, with whom Joseph H. Hunt, Assistant Attorney General, Civil Division, Stephen J. Flynn, Assistant Director, Office of Immigration Litigation, and Annette M. Wietecha, Office of Immigration Litigation, Civil Division, United States Department of Justice, were on brief, for respondent.

* Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to

(d). May 24, 2021 THOMPSON, Circuit Judge. In this immigration appeal, we

are tasked with examining whether the petitioner, Jose Nolberto

Tacuri-Tacuri (Tacuri), has established that the Board of

Immigration Appeals (BIA) erred in reversing an Immigration

Judge's (IJ) grant of his application for cancellation of removal.

For the reasons explained below, we deny Tacuri's petition in part

and otherwise dismiss it for lack of jurisdiction.

Background

Tacuri is a native of Ecuador who entered the United

States without inspection in 2001 to earn more money to help

support his parents and siblings. He has lived in Massachusetts

since 2003 with his wife, who also moved to the U.S. from Ecuador.

Tacuri and his wife have two minor children, one son (J.T.C.) and

one daughter (K.T.C.), both born in the U.S. Throughout his time

living in the U.S., Tacuri has worked primarily in construction

and roofing. He started his own business in this field around

2008.

Regrettably, Tacuri has had frequent contact with local

police throughout his residency in the U.S., including

approximately eighteen charges for driving with a suspended

license or driving under the influence. A social worker became

involved with Tacuri's family after his son began having some

- 3 - problems at school. Tacuri started attending a class or meetings

on a regular basis to address his use of alcohol.1

As a result of Tacuri's frequent contact with Milford,

Massachusetts police for motor vehicle violations, Immigration and

Customs Enforcement (ICE) initiated removal proceedings against

Tacuri in August 2018 by filing a Notice to Appear in the Boston

Immigration Court. He was detained from August 2018 to April 2020.

The Department of Homeland Security (DHS) charged Tacuri as

removable under the Immigration and Nationality Act (INA)

§ 212(a)(6)(A)(i) as an alien who had illegally entered the

country. Tacuri conceded the charge of removability and indicated

he would apply for relief from removal through asylum, withholding

of removal, cancellation of removal, and, in the alternative,

voluntary departure. During a hearing in December 2018, Tacuri

withdrew his application for asylum and withholding of removal,

leaving only his applications for cancellation of removal pursuant

to the INA § 240(A) (codified at 8 U.S.C. § 1229a) and voluntary

departure in the alternative. As we will discuss in depth soon,

an IJ can consider granting a nonpermanent resident's application

for cancellation of removal only when the IJ finds, among other

requirements, the applicant's removal would result in an

1The record does not indicate exactly what kind of course or meetings Tacuri attended, only that they were related to his use of alcohol.

- 4 - "exceptional and extremely unusual hardship" to a United States

relative. 8 U.S.C. § 1229b(b)(1)(D).

During the hearing, the IJ heard testimony from Tacuri

and his wife about their family relationship and the effect his

removal would have on their two young children. With respect to

their then five-year-old daughter, Tacuri's wife testified that

K.T.C. frequently cried and asked where her father was. As to

their then twelve-year-old son, J.T.C., Tacuri's wife explained

that he was "suffering" without his father, had become quiet,

wasn't eating much, and was afraid of what his friends would say

about his father's absence. A report submitted from a social

worker described J.T.C.'s noticeable decline in personal hygiene,

causing complaints about his body odor from school officials.

Although J.T.C.'s grades improved after his father was taken into

custody, his school guidance counselor expressed concern because

J.T.C. had stated he worked to improve his grades so he didn't

cause additional worry or stress to his mother.

J.T.C. has always been asthmatic, which has been a source

of concern for Tacuri and his wife. J.T.C. takes pills and uses

an inhaler every day, which costs about $75 every two weeks despite

having health insurance. Tacuri's wife stated J.T.C.'s asthma

worsened after his father's detainment. He started experiencing

chest pains and he felt less safe participating in his usual karate

- 5 - and soccer activities without his father around to help if he were

to faint.

Tacuri testified that his wife and two children would

remain in the United States if he were removed due to Ecuador's

lack of educational opportunities and medical resources necessary

to manage J.T.C.'s asthma. As Tacuri explained, he would be unable

to continue providing economic support to his family from Ecuador

because he would likely earn less than $10 per day, if he could

find employment at all. Tacuri's wife typically made about $350

per week working at the local grocery store but had been able to

earn $500 per week after her husband's detainment by working

additional hours. She expressed concern, however, that she would

be unable to make enough money to support her children without her

husband's assistance and income; at the time of the hearing she

was already borrowing money from family members.

After considering all of the testimony and documents

submitted to support Tacuri's application for cancellation of

removal, the IJ concluded Tacuri's removal to Ecuador would pose

an "exceptional and extremely unusual hardship" to both of Tacuri's

children, but especially to his son. The IJ focused on J.T.C.'s

asthma, deeming this medical condition "compelling." The IJ also

concluded that Tacuri's wife would face considerable financial

difficulty in paying for J.T.C.'s medical care without the

assistance of Tacuri's usual income, resulting in "exceptional and

- 6 - extremely unusual hardship" to J.T.C. The IJ decided Tacuri met

the other statutory requirements for cancellation of removal and

granted Tacuri's application for cancellation of removal.2 The IJ

did not reach the merits of Tacuri's alternative application for

voluntary departure.

Unsatisfied with the result, DHS appealed the IJ's

decision to the BIA. The BIA disagreed with the IJ's conclusion

that Tacuri had met the required "exceptional and extremely unusual

hardship" standard and sustained DHS's appeal. In a brief

decision, the BIA focused on J.T.C.'s academic record reflecting

strong grades, emphasized the IJ's finding that J.T.C.'s asthma

was "currently manageable and largely stable," and noted that

J.T.C. was active and played sports. Despite the IJ's finding

that Tacuri's family "could struggle to provide [J.T.C.] with his

required medicine," the BIA stated there was no indication J.T.C.

would be deprived of his medication, especially because the family

indicated Tacuri's wife and children would remain in the United

States and the family could retain health insurance. Further, the

2 The IJ concluded Tacuri had the requisite "good moral character" to be eligible for cancellation of removal. Although the IJ acknowledged Tacuri's "sometimes troubling relationship with alcohol," the IJ looked positively upon the fact that Tacuri met with his son's school social workers and proactively attended an alcohol course, which he attended until his detention, to change his behavior and "become a better father." Further, the IJ found that Tacuri's numerous driving offenses in multiple jurisdictions were explained by Tacuri's need to get to work despite not having a license, which he eventually remedied by hiring a driver.

- 7 - BIA opined that there was no evidence J.T.C.'s asthma could not

continue to be managed if Tacuri is removed to Ecuador. Aside

from J.T.C.'s asthma, the BIA also found Tacuri had not

demonstrated that his children's mental health issues were

"exceptional and extremely unusual" for children separated from a

parent. Ultimately, the BIA concluded Tacuri had not "show[n]

that his return to Ecuador would have a material economic impact

on his children for cancellation of removal purposes" because his

wife was employed full time and Tacuri's construction skills were

transferrable to Ecuador. "[A] lowered standard of living and

reduced economic opportunities," the BIA reasoned, "generally are

insufficient" to support "a finding of exceptional and extremely

unusual hardship."

In addition, the BIA remanded Tacuri's alternative

application for voluntary departure to the IJ because the IJ had

not provided a ruling on this alternative relief when he granted

Tacuri's application for cancellation of removal.3 Before the IJ

issued a ruling about voluntary departure, Tacuri filed a petition

for review of the BIA's decision in this Court. The IJ

subsequently granted Tacuri's application for voluntary departure,

and this Court then granted his motion for a stay of removal

Because the BIA concluded Tacuri had not met his burden to 3

demonstrate "exceptional and extremely unusual hardship," it did not examine whether Tacuri had met his burden of establishing he had good moral character.

- 8 - pending our review of his case (legalese meaning Tacuri could

remain in the United States until we decide his case). The time

has come for us to do just that.

Discussion

Tacuri argues that the BIA applied the wrong legal

standard and ignored its own binding precedent when it overturned

the IJ's grant of his application for cancellation of removal.

The government counters that we lack the jurisdiction to review

Tacuri's challenges to the BIA's decision.

We begin with a quick primer about the relief Tacuri

requested. Cancellation of removal is one of the discretionary

forms of relief available to the Attorney General for nonpermanent

residents who have been deemed removable from the country when the

applicants can establish the following four requirements: (1)

they have been in the United States continuously for at least ten

years; (2) they are a person of "good moral character"; (3) they

have not been convicted of certain criminal offenses; and (4) --

the only part at issue here -- they can show that their removal

would result in "exceptional and extremely unusual hardship" to a

relative with permanent legal status in the United States. 8

U.S.C. § 1229b(b)(1); see also § 1229a(c)(4).

Before we get to the merits of this issue, however, we

have a jurisdictional hurdle to clear. Typically, this Court lacks

jurisdiction to review a BIA decision concerning this

- 9 - discretionary remedy of cancellation of removal.

(a)(2)(B)(i); Alvarado v. Holder,

(1st

Cir. 2014). We retain jurisdiction, however, over "constitutional

claims or questions of law."

(a)(2)(D); Alvarado,

. If Tacuri's arguments present constitutional or

legal issues (and he argues they do), then we have jurisdiction

and we review those claims de novo. See Alvarado v. Whitaker,

(1st Cir. 2019).

In his petition for review of the BIA's decision, Tacuri

asserts the BIA both failed to identify and apply each of the

factors identified in its governing precedent and expected him to

meet a higher bar for the "exceptional and extremely unusual

hardship" standard than that set forth in other cases. While the

"choice and shape" of a legal standard is "quintessentially a

question of law," Ayeni v. Holder,

(1st Cir. 2010),

the presence of a constitutional or legal question is a "matter of

substance, not a function of labeling," Alvarado,

.

To that end, styling a factual challenge as a constitutional or

legal error -- as the government asserts Tacuri is doing here --

does not "transform an unreviewable issue of fact into a reviewable

issue of law."

As we have stated on more than one occasion, we usually

decline to review a determination of whether an applicant for

cancellation of removal has satisfied the hardship requirement

- 10 - because this is typically a purely factual inquiry.

(citing

Castro v. Holder,

(1st Cir. 2013)). Although

applying the wrong legal standard is indeed a legal issue, the

evidentiary weight involved in a hardship determination is not.

(collecting cases where we have not had jurisdiction to review

challenges to alleged hardships to a petitioner's family). To be

sure, the BIA does not commit an error of law "each and every time

a piece of evidence is described with less than perfect accuracy."

Ayeni,

(holding there was no jurisdiction to

determine whether the BIA "neglected adequately to weigh the

seriousness of [petitioner's] eldest child's asthma").

As we mentioned above, Tacuri attempts to clear this

jurisdictional hurdle by presenting his claims as legal issues

this Court has jurisdiction to review and decide. He identifies

ways in which the BIA "cherry-pick[ed]" from the record to focus

only on some facts while ignoring other facts, resulting (he says)

in ultimately requiring him to show unconscionability to meet the

hardship standard. He also asserts that even though the BIA cited

three instrumental cases for the "exceptional and extremely

unusual hardship" standard, it did not discuss these precedents

nearly enough to justify reversing the IJ's decision.

The government responds that Tacuri merely disagrees

with how the BIA weighed the facts in his case. Disagreement with

how the BIA reached an unfavorable outcome, the government reasons,

- 11 - is not a legal or constitutional issue that falls within our

purview. And so the government urges us to dismiss Tacuri's

petition for review for lack of jurisdiction.

It is not obvious to us whether Tacuri's arguments go

only to his quibbling with the BIA's take on the facts of his case

(as the government contends) or to his assertion that the BIA erred

as a matter of law by applying a more demanding standard for Tacuri

to meet than that identified in the caselaw. Fortunately, we need

not decide because, as this Court has done before when statutory

jurisdiction is ambiguous but the merits are straightforward, we

bypass the jurisdictional issue and explain why the merits hold no

water. See Alvarado,

(citing Royal Siam Corp. v.

Chertoff,

(1st Cir. 2007)) (passing over a

jurisdictional claim to explain why precedent "clearly dictates"

the result on the merits). While federal courts typically cannot

apply "hypothetical jurisdiction" in terms of Article III

jurisdiction, we can sidestep statutory jurisdiction when, as

here, it makes sense to do so because the resolution on the merits

of the case is straightforward.

(collecting cases

demonstrating this Court has taken this path in similar immigration

cases). Without further ado, we therefore proceed to assess

Tacuri's arguments on the merits.

To prove an "exceptional and extremely unusual

hardship," an applicant must "establish that his qualifying

- 12 - relatives would suffer hardship that is substantially different

from, or beyond, that which would normally be expected from the

deportation of an alien with close family members here." In re

Monreal-Aguinaga,

(BIA 2001) (en banc)

(Matter of Monreal). An applicant need not show, however, that

such hardship would be "unconscionable."

. In Matter

of Monreal, the BIA indicated immigration judges could work in the

space in between "hardship that is substantially beyond that which

would ordinarily be expected" and "unconscionability" by

considering "the ages, health, and circumstances of qualifying

lawful permanent resident and United States citizen relatives."

. The BIA identified "strong" circumstances to include

"an applicant who has elderly parents in this country who are

solely dependent upon him for support . . . [or who has] a

qualifying child with very serious health issues[] or compelling

special needs in school."

In addition, the BIA stated:

A lower standard of living or adverse country conditions in the country of return are factors to consider only insofar as they may affect a qualifying relative, but generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship. As with extreme hardship, all hardship factors should be considered in the aggregate when assessing exceptional and extremely unusual hardship.

.4

4 The BIA adopted these considerations from a more general hardship standard it applied before Congress changed the applicable standard from "extreme hardship" to "exceptional and

- 13 - The "exceptional and extremely unusual hardship"

standard "constitutes a high threshold that is in keeping with

Congress' intent to substantially narrow the class of aliens who

would qualify for relief." In re Gonzalez Recinas,

(BIA 2002) (approving cancellation of removal for

single mother of six children, four of whom are United States

citizens, with no remaining close relatives in Mexico). While an

applicant's child's poor health is a compelling factor, Matter of

Monreal, 23 I. & N. Dec. at 63, the applicant must further

establish that "the relative has a serious medical condition and,

if he or she is accompanying the applicant to the country of

removal, that adequate medical care for the claimed condition is

not reasonably available in that country," Matter of J-J-G-,

(BIA 2020) (holding that applicant's

daughter's hypothyroidism may constitute a serious medical

condition but does not constitute an "exceptional and extremely

unusual hardship" because she could still receive medical care in

Guatemala). Overall, the BIA couches its standard for "exceptional

and extremely unusual hardship" in the qualifier that "reasonable

people can agree that the meaning of these terms . . . are not

terms of 'fixed and inflexible content or meaning.'" Matter of

extremely unusual hardship" in 1996. Alvarado,

, 276 n.2 (citing Matter of Monreal, 23 I. & N. Dec. at 56 and Matter of Anderson,

(1978)).

- 14 - Monreal, 23 I. & N. Dec. at 59 (citing Matter of Hwang,

(BIA 1964)).

Now that we have identified the standard, we turn to

Tacuri's specific arguments regarding his application and the way

in which he claims the BIA erred in evaluating it. First, he

argues that the BIA erred by ignoring its own precedent when it

concluded he had not demonstrated an "exceptional and extremely

unusual hardship" to his children if he is deported. Tacuri says

the BIA's cursory citations to its own governing precedent for

"exceptional and extremely unusual hardship" was not good enough

because the BIA ignored the "particulars of the factors" these

cases lay out. We disagree with Tacuri. Our caselaw indicates

these citations are indeed good enough: For example, in Alvarado,

the BIA didn't cite its most prominent hardship cases, and we still

found no legal error because the BIA had applied the precepts from

the cases.

. Here, the BIA cited two governing

cases, Matter of Monreal and In re Andazola-Rivas,

(BIA 2002) (Matter of Andazola), acknowledging the

precepts from these cases after it summarized the facts on the

record about Tacuri's two children, including J.T.C.'s asthma and

the family's economic circumstances.

On this same point, Tacuri argues that the governing

caselaw "force[s the BIA] to address the complete record," which,

according to Tacuri, the BIA did not do. For instance, Tacuri

- 15 - points out how the BIA did not consider J.T.C.'s personal hygiene

issues and only gave "selective" attention to J.T.C.'s asthma by

mentioning it was "largely stable." Further, Tacuri asserts the

decision failed to mention that J.T.C.'s $75 inhaler cost was the

out-of-pocket cost after the insurance covered a portion and that

J.T.C.'s asthma had gotten worse since his father's detainment.

This argument falls flat, however, because he cites no caselaw to

support the proposition that the BIA must specifically address

every evidentiary submission within the record.

Tacuri also claims the BIA improperly "applied a higher

standard than required" for determining "exceptional and extremely

unusual hardship" by impermissibly (though not explicitly)

requiring unconscionability. Remember, the BIA must "consider the

ages, health, and circumstances of qualifying lawful permanent

resident and United States relatives" but stops short of requiring

unconscionability when it determines whether the applicant's

removal would constitute "exceptional and extremely unusual

hardship" to these family members. Matter of Monreal, 23 I. & N.

Dec. at 63. Here, the BIA undoubtedly weighted some pieces of

evidence differently than the IJ; otherwise it wouldn't have

reached a different conclusion. But, in our view, the BIA did

cite the appropriate standard and did not require the hardship to

Tacuri's children to be unconscionable. In fact, the BIA decision

does not mention the word "unconscionable" at all.

- 16 - The "exceptional and extremely unusual hardship"

standard is supposed to be hard to meet and is evaluated in

comparison to the hardships typically felt by children whose

parents are removed from the country -- this in itself sets a high

bar. See Matter of Monreal, 23 I. & N. Dec. at 63; Matter of

Gonzalez Recinas, 23 I. & N. Dec. at 470. While Tacuri justifiably

believes the BIA's conclusion is unconscionable given the

injurious impact his departure will have on his entire family,

that does not translate to the BIA applying an unconscionability

standard in its decision. Ultimately, Tacuri's claims boil down

to his fundamental disagreement with how the BIA weighed and

considered the facts in his case. The BIA adequately explained

and supported its decision that Tacuri failed to meet the

"exceptional and extremely unusual hardship" standard. Citing

relevant precedent (as we addressed above), the BIA mentioned

J.T.C. and K.T.C.'s ages, it explored the children's "alleged

mental health issues," it addressed (however cursorily) J.T.C.'s

asthma, and it considered the economic impact Tacuri's removal

would have on his family.

All of this to say that, in our view, the BIA did not

commit any legal errors when it concluded Tacuri had not met his

burden to show his removal would result in "exceptional and

extremely unusual hardship" to his family. To the extent Tacuri

has challenged the BIA's decision as legally unsound, his claim

- 17 - fails on the merits. And to the extent Tacuri has disputed the

weight to which the BIA accorded some evidence over other evidence

and some factors over other factors, we have no jurisdiction to

consider these arguments.

Conclusion

This case is yet another occasion when we "regret that

we can do nothing more for petitioner[] and [his] children."

Alvarado,

. Tacuri's removal from this country

will undoubtedly be devastating for his wife and children. The

law, however, does not lean in Tacuri's favor, both in the daunting

standard it sets and in the wide discretion it grants to the BIA

to deny relief even when others would not do so. And so, for the

foregoing reasons, the petition is denied in part and otherwise

dismissed for lack of jurisdiction.

- 18 -