Carlos Manuel Rodriguez- Ortiz, a/k/a Carlos Rodriguez-Cisneros v. ROBERT M. WILKINSON, Acting United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
CARLOS MANUEL RODRIGUEZ-
ORTIZ, a/k/a Carlos Rodriguez-Cisneros,
Petitioner,
v.
ROBERT M. WILKINSON, Acting United
States Attorney General,*
Respondent.
No. 20-9545
(Petition for Review)
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before LUCERO, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
Carlos Manuel Rodriguez-Ortiz petitions for review of a Board of Immigration
Appeals (Board) order denying his motion to reopen his removal proceedings. We
dismiss the petition for review for lack of jurisdiction.
* On January 20, 2021, Robert M. Wilkinson became Acting 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 to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
FILED
United States Court of Appeals
Tenth Circuit
January 26, 2021
Christopher M. Wolpert
Clerk of Court
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I. Background
Petitioner, a native and citizen of Mexico, entered the United States illegally in
1998. In 2009, the Department of Homeland Security initiated removal proceedings,
contending he was removable as an alien who was present in the United States
without admission or parole. See 8 U.S.C. § 1182(a)(6)(A)(i). Through counsel,
Petitioner admitted the Department’s factual allegations, conceded removability, and
sought relief in the form of cancellation of removal pursuant to 8 U.S.C.
§ 1229b(b)(1). To obtain relief, he needed to demonstrate that he had “been a person
of good moral character” during the ten-year period before his application, and that
his “removal would result in exceptional and extremely unusual hardship” to his wife
and three children, all of whom were United States citizens. See id.
§ 1229b(b)(1)(B), (D).
The Immigration Judge (IJ) denied the application, finding Petitioner did not
meet either requirement. With respect to good moral character, the IJ outlined
Petitioner’s many contacts with law enforcement in the United States, including two
convictions for driving under the influence and a 2012 domestic violence conviction.
The IJ acknowledged that most of the incidents occurred outside the relevant ten-year
period and that Petitioner had “stayed out of trouble since 2012.” R. at 170. But the
IJ noted that Petitioner had been in jail fourteen weeks during the relevant period,
and concluded he could not demonstrate the requisite good moral character because
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of the “seriousness” of the domestic violence and DUI convictions, “the number of
offenses,” and his “repeated disregard for the law.” Id.
Turning to family hardship, the IJ found Petitioner’s four qualifying family
members would stay in the United States upon his removal. The IJ acknowledged
Petitioner’s evidence about the emotional, medical, and educational challenges each
of his daughters faced. But the IJ found that despite their challenges the children
were “generally healthy” and there was no evidence “any medical or educational
problems []would be significantly exacerbated” by Petitioner’s removal. Id. at 171.
The IJ also acknowledged that the loss of Petitioner’s income would cause economic
hardship for the whole family, but noted that his wife still worked full time and held
that “economic hardship to one’s qualifying relatives due to reduced income does not
rise to the level of exceptional and extremely unusual hardship.” Id. at 172. The IJ
further found nearby relatives would “help care for” the children and “provide a
supportive and stable environment in” Petitioner’s absence. Id. at 171. After
“consider[ing] all evidence whether expressly referred to in [the] decision or not,” id.
at 167, and weighing the evidence “both individually and cumulatively,” id. at 170,
the IJ concluded that while Petitioner’s removal would “be difficult for his wife and
children,” their hardship would not be “substantially different from that typically
experienced when [an alien] with close family members” is removed, id. at 172
(emphasis omitted). See In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001)
(explaining that to establish “exceptional and extremely unusual hardship” an alien
must show “his qualifying relatives would suffer hardship that is substantially
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different from, or beyond, that which would normally be expected from the
deportation of an alien with close family members” in the United States).
On appeal, the Board found the IJ did not clearly err in finding that
Petitioner’s daughters are “generally healthy, even if some evidence may support a
contrary finding.” R. at 106 (internal quotation marks omitted). The Board agreed
with the IJ’s conclusion that the support of nearby relatives “mitigates some of the
hardship” Petitioner’s removal might cause. Id. at 107. It also agreed with the IJ that
the loss of Petitioner’s income did not meet the statutory standard because reduced
income is a “common result” of a family member’s removal. Id. (internal quotation
marks omitted). And it rejected Petitioner’s contentions that the IJ “overlooked a
portion of the record” and failed to analyze the cumulative effect of the hardship on
his qualifying relatives. Id. In so doing, the Board accepted the IJ’s statement that
he considered all of the evidence both individually and cumulatively, and explained
that an IJ is not required to “discuss every single piece of evidence in the record . . .
as long [as] the decision reflects meaningful consideration of the relevant substantial
evidence.” Id. Because it agreed with the IJ’s ultimate determination that
Petitioner’s hardship evidence was insufficient to establish eligibility for cancellation
of removal, the Board denied Petitioner’s application on that basis alone and declined
to address his challenges to the IJ’s holding that he also failed to establish the
requisite good moral character.
About a month later, Petitioner moved to reopen his removal proceedings,
presenting what he characterized as new hardship evidence, including information
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about his wife’s physical and mental health issues, his oldest daughter’s emotional
and educational challenges, and his middle daughter’s drug use and other struggles
stemming from problems with her mother and her mother’s boyfriend. He asked the
Board to reopen the proceedings and remand to the IJ for reconsideration of his
application for cancellation based on his new evidence.
The Board denied the motion for two reasons. First, it found some of the
evidence Petitioner submitted in support of reopening was not new and previously
unavailable, and that regardless of whether it was new, reopening was not warranted
because the evidence was insufficient “to overcome” the IJ’s factual findings and still
did not demonstrate the requisite level of family hardship. Id. at 4. Accordingly, the
Board concluded Petitioner had “not shown that the new evidence would likely
change the result of his case.” Id. at 5; see Maatougui v. Holder, 738 F.3d 1230,
1240 (10th Cir. 2013) (explaining that to merit reopening, an alien must present new
and previously unavailable facts demonstrating that “if proceedings before the IJ
were reopened . . ., the new evidence offered would likely change the result in the
case” (brackets and internal quotation marks omitted)). Second, the Board concluded
that even if the new evidence were sufficient to establish extreme and unusual
hardship, reopening was not warranted because the motion did not address the IJ’s
determination that Petitioner was also ineligible for cancellation based on his failure
to meet the good moral character requirement.
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II. Discussion
Petitioner claims the Board erred by concluding his new hardship evidence did
not warrant reopening. We conclude we lack jurisdiction to review his challenges to
the Board’s hardship determination.
We do not have jurisdiction to review the BIA’s discretionary determinations
regarding applications for cancellation of removal. See 8 U.S.C. § 1252(a)(2)(B)(i)
(“[N]o court shall have jurisdiction to review . . . any judgment regarding the
granting of relief under section . . . 1229b”). Whether an alien has demonstrated the
exceptional and extremely unusual hardship required for cancellation of removal by
§ 1229b(b)(1)(D) is one such discretionary determination beyond our review.
Alzainati v. Holder, 568 F.3d 844, 848 (10th Cir. 2009).
Like Petitioner, the alien in Alzainati appealed the BIA’s denial of his motion
to reopen based on new evidence supporting his claim of exceptional and extremely
unusual hardship. See 568 F.3d at 847. Noting that we would not have jurisdiction
to review the BIA’s hardship ruling if it had been challenged on direct review, we
considered whether an alien can, by appealing the denial of a motion to reopen,
“indirectly obtain judicial review of a discretionary ruling that is not directly
reviewable.” Id. at 848. We explained that “a proper jurisdictional analysis must
consider the basis for the denial of the motion to reopen,” because some grounds for
denial of reopening would not implicate the jurisdictional bar on judicial review of
discretionary decisions. See id. at 849-50. But “[i]f the [Board] decides, in an
exercise of agency discretion, an alien has not produced sufficient evidence to
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warrant a finding of exceptional and extremely unusual hardship, we cannot review
that decision.” Id. at 850. Thus, if “[t]he [Board]’s denial of the motion to reopen
was, like the underlying order of removal, based on the merits of the hardship issue,
which is a discretionary determination,” the jurisdictional bar precludes our review
unless the alien raises a constitutional claim or a question of law. Id.; see 8 U.S.C.
§ 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.” Galeano-Romero v.
Barr, 968 F.3d 1176, 1184-85 (10th Cir. 2020) (internal quotation marks omitted).
And “[a] petition for review does not raise a question of law by disputing the [BIA]’s
appraisal of the degree of hardship likely to [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 fact,”
id. at 1184.
Petitioner contends the Board erred in finding some of his evidence was not
new or previously unavailable, failed to consider all of the hardship evidence he
submitted in support of reopening, and did not meaningfully analyze or improperly
weighed evidence he claims meets the hardship standard and establishes his
eligibility for cancellation. But these complaints about the adequacy of the Board’s
analysis and its weighing of the evidence are exactly the types of merits-based
challenges we lack jurisdiction to review. See Alzainati, 568 F.3d at 850. And his
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contentions that the Board’s decision is “manifestly contrary to the law,” Aplt.
Opening Br. at 8, and that the Board violated his right to due process by denying
reopening without remanding to the IJ for “further development of the record for
purposes of establishing eligibility for the relief sought,” id. at 6, 11, do not raise
either a question of law or a constitutional claim. They are nothing more than
another way of contending that the Board weighed the evidence incorrectly and made
the wrong discretionary decision, and we lack jurisdiction to review such claims. See
Galeano-Romero, 968 F.3d at 1185 (rejecting attempt to couch claims that Board
“failed to consider all the relevant factors . . . in the aggregate” and “overvalued” and
“undervalued” evidence as constitutional claims); Alzainati, 568 F.3d at 851
(concluding argument that Board violated due process by not addressing certain
evidence in its order was “just a quarrel about the level of detail required in the
[Board]’s analysis, not a colorable due process claim”).
Because the Board’s denial of Petitioner’s motion to reopen hinged on its
hardship determination, and because we lack jurisdiction to review that
determination, we need not address the parties’ arguments regarding the Board’s
failure to review the IJ’s conclusion that he did not show the requisite good moral
character. See Galeano-Romero 968 F.3d at 1180 n.5 (declining to consider
good-moral-character arguments where Board’s cancellation decision hinged on
unreviewable hardship determination).
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III. Conclusion
Because we lack jurisdiction to review Petitioner’s claims, we dismiss the
petition for review.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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