22-6319-ag Garcia Carrera v. Garland

United States Court of Appeals for the Second Circuit August Term, 2023

(Submitted: November 1, 2023 Decided: July 3, 2024 Amended: September 3, 2024)

Docket No. 22-6319-ag

_____________________________________

MIGUEL ANGEL GARCIA CARRERA,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

Before:

LOHIER, NARDINI, and ROBINSON, Circuit Judges.

Petitioner Miguel Angel Garcia Carrera is a nonpermanent resident and a native and citizen of Mexico. He seeks review of a June 6, 2022 decision of the Board of Immigration Appeals affirming a July 16, 2019 decision of an Immigration Judge denying his application for cancellation of removal. Matter of Garcia Carrera, No. A205 308 075 (B.I.A. June 6, 2022), aff’g No. A205 308 075 (Immig. Ct. N.Y.C. July 16, 2019). Garcia Carrera argues that he is eligible for cancellation of removal because his removal would cause exceptional and extremely unusual hardship to his daughter, who is a citizen of the United States. The agency concluded that the hardships his daughter might experience were not “exceptional” and “extremely unusual” as required under 8 U.S.C. § 1229b(b)(1)(D). Because the agency did not err in denying Garcia Carrera’s application for removal, the petition for review is DENIED. 1

Miguel Angel Garcia Carrera, pro se, Middletown, NY, for Petitioner.

Brian M. Boynton, Principal Deputy Assistant Attorney General; Sarah A. Byrd, Song Park, Senior Litigation Counsel; Robert P. Coleman III, Trial Attorney, James A. Hurley, Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent.

PER CURIAM:

Miguel Angel Garcia Carrera, a native and citizen of Mexico, is a

nonpermanent resident who is proceeding on appeal without counsel. After the

Department of Homeland Security placed him in removal proceedings for

entering the United States without inspection, Garcia Carrera filed an application

1This opinion was originally filed on July 3, 2024. See Garcia Carrera v. Garland,

(2d Cir. 2024). On August 16, 2024 the United States filed a motion to amend the opinion to clarify this Circuit’s interpretation of the Supreme Court’s opinion in Wilkinson v. Garland,

(2024). Because we agreed that our opinion risked being misconstrued, we granted the motion and now issue this opinion with minor changes. 2 for cancellation of removal on the basis that his removal would cause exceptional

and extremely unusual hardship to his daughter. The Board of Immigration

Appeals (BIA) affirmed the decision of the Immigration Judge (IJ) denying

Garcia Carrera’s application. The agency concluded that the hardships Garcia

Carrera’s daughter might experience were not “exceptional” and “extremely

unusual” as required under 8 U.S.C. § 1229b(b)(1)(D). Garcia Carrera then

appealed to this Court, arguing that the agency mischaracterized and overlooked

evidence that his removal would cause his daughter, a citizen of the United

States, to suffer exceptional and extremely unusual hardship.

Initially, the Government contended that we lacked jurisdiction to review

Garcia Carrera’s claim because the hardship determination is committed to

agency discretion by law. Following the Supreme Court’s decision in Wilkinson

v. Garland,

(2024), however, the Government concedes that we have

jurisdiction to review Garcia Carrera’s claim. The Government nonetheless

maintains that the agency did not err in denying Garcia Carrera’s application for

removal. Because we have authority to review the agency’s hardship

determination and because the agency did not err in concluding that Garcia

Carrera failed to demonstrate the requisite hardship, we DENY the petition.

3 BACKGROUND

Garcia Carrera illegally entered the United States in 2002. He briefly

returned to Mexico for two months in 2005 but has remained in the United States

since he reentered later that year. In 2012, following his arrest for driving while

intoxicated, the Department of Homeland Security placed him in removal

proceedings for entering without inspection. He conceded removability and

applied for cancellation of removal. Garcia Carrera alleged that his removal

would cause his daughter, a United States citizen who was nine years old at the

time of his hearing, to suffer “exceptional and extremely unusual hardship.”

8 U.S.C. § 1229b(b)(1)(D).

After a 2017 merits hearing, the IJ denied Garcia Carrera’s petition for

cancellation of removal. The IJ concluded that Garcia Carrera had not

demonstrated the requisite hardship to his daughter because he adduced no

evidence that she had serious mental or physical health conditions and failed to

show that his return to Mexico would cause exceptional emotional hardship

beyond the “normal emotional impacts . . . faced by almost every family in a

position of being required to depart the United States.” CAR at 59‒64. The BIA

agreed with the IJ’s determination that Garcia Carrera failed to establish the

4 requisite hardship because his daughter, who would remain in the United States

with her mother, had no serious physical or mental disabilities. Garcia Carrera,

proceeding without counsel, then appealed to this Court.

While the appeal was pending, the Supreme Court granted certiorari in

Wilkinson v. Garland,

(2024) to address whether the agency’s

exceptional and extremely unusual hardship determination “is a mixed question

of law and fact reviewable under [8 U.S.C.] § 1252(a)(2)(D) or whether this

determination is a discretionary judgment call that is unreviewable under

§ 1252(a)(2)(B)(i).” Wilkinson,

(cleaned up). We then issued an

order holding this case in abeyance pending the Supreme Court’s decision in

Wilkinson and requested supplemental briefing from the parties. On March 19,

2024, the Supreme Court issued its decision.

DISCUSSION

We consider both the IJ’s and the BIA’s decisions “for the sake of

completeness.” Wangchuck v. Dep’t of Homeland Sec.,

(2d Cir.

2006). A nonpermanent resident may have removal cancelled by, in relevant

part, establishing “that removal would result in exceptional and extremely

unusual hardship to [a] spouse, parent, or child, who is a citizen of the United

5 States or [a noncitizen] lawfully admitted for permanent residence.” 8 U.S.C.

§ 1229b(b)(1)(D). The hardship to a qualifying relative “must be substantially

beyond the ordinary hardship that would be expected when a close family

member leaves this country.” In re Monreal-Aguinaga,

(B.I.A. 2001) (quotation marks omitted). When assessing hardship, the agency

considers “the ages, health, and circumstances of qualifying . . . relatives,”

, and must consider the cumulative effect of those hardships, see In re Gonzalez

Recinas,

(B.I.A. 2002).

Our jurisdiction to review the agency’s denial of cancellation of removal is

limited to “constitutional claims” and “questions of law.”

(a)(2)(B)(i), (D). For purposes of § 1252(a)(2)(D), “questions of law” include

“[t]he application of a statutory legal standard (like the exceptional and

extremely unusual hardship standard) to an established set of facts.” Wilkinson,

. We need not determine the precise standard of review applicable

to each of Garcia Carrera’s claims because, even considering them de novo, we

discern no error.

Because it is now clear that Courts of Appeals have jurisdiction to review

the agency’s exceptional and extremely unusual hardship determination, see

6 Wilkinson,

, we address the merits of Garcia Carrera’s claims. He

argues that the agency mischaracterized and overlooked evidence that his

removal would cause exceptional and extremely unusual hardship to his

daughter. He also argues that the agency did not sufficiently consider his

daughter’s mental health conditions, the seriousness of those conditions, or the

cumulative effect of the hardships she endured. We are not persuaded.

As an initial matter, the IJ correctly stated the applicable legal standards.

See In re Monreal-Aguinaga, 23 I. & N. Dec. at 62–63. The IJ addressed the

hardships that Garcia Carrera claimed his daughter would suffer, and there is no

indication that the IJ failed to consider other relevant evidence. See Xiao Ji Chen v.

U.S. Dep’t of Just.,

, 336 n.17 (2d Cir. 2006) (“[W]e presume that an IJ

has taken into account all of the evidence before [her], unless the record

compellingly suggests otherwise.”). The IJ also considered Garcia Carrera’s

testimony and a report from the psychotherapist who had examined his

daughter. Garcia Carrera insists that the agency focused only on his daughter’s

current condition and failed to consider the risk that her condition could worsen

or that she could face future hardships triggered by his removal. But the BIA

acknowledged Garcia Carrera’s argument that his daughter’s mental health

7 could worsen and simply determined that even these potential hardships were

not “exceptional and extremely unusual.” 8 U.S.C. § 1229b(b)(1)(D).

On this record, we find no error in the agency’s conclusion that the

established facts did not demonstrate the requisite hardship. See In re Monreal-

Aguinaga, 23 I. & N. Dec. at 62

CONCLUSION

We have considered Garcia Carrera’s remaining arguments and conclude

that they are without merit. For the foregoing reasons, the petition for review is

DENIED. All pending motions and applications are DENIED and stays

VACATED.

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