Gregorio Gurrola-Rosales v. ERIC H. HOLDER, JR., Attorney General of the United States

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 14, 2009
Decided November 4, 2009
Before
JOHN L. COFFEY, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 09‐1644
GREGORIO GURROLA‐ROSALES,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A098 172 130
O R D E R
Gregorio Gurrola‐Rosales, a citizen of Mexico, illegally crossed the border into the
United States in 1992. He was 17 years old at the time. In 2004, the Department of
Homeland Security (“DHS”) commenced removal proceedings against him. In 2007,
following a hearing, an immigration judge (“IJ”) granted Gurrola‐Rosales’s application for
cancellation of removal based on a finding that his daughter would suffer exceptional and
extremely unusual hardship if he was forced to leave the country. The DHS appealed. The
Board of Immigration Appeals (“BIA”) reversed and ordered Gurrola‐Rosales removed
from the United States. Gurrola‐Rosales now petitions for review, but because we lack
jurisdiction, we must dismiss his petition.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 09‐1644 Page 2
Gurrola‐Rosales settled in Kansas City, Kansas, secured steady employment,
purchased a home, and fathered four children. But after a dozen years here, DHS wanted
him removed.
Gurrola‐Rosales conceded removability but sought cancellation of removal based on
“exceptional and extremely unusual hardship” to his 3‐year‐old daughter. See 8 U.S.C.
§ 1229b(b)(1)(D). At his hearing before the IJ, Gurrola‐Rosales testified that his daughter, a
United States citizen, has a medical condition that causes recurrent growths in her larynx
and requires frequent outpatient surgeries. This condition, he said, affects her speech and
interferes with her breathing, but does not require her to take any medications or limit her
activities. His daughter’s treatment is covered by Medicaid, and doctors expect the
condition to subside when the girl is a teenager. Gurrola‐Rosales testified that he is the sole
source of support for his daughter and her mother, and that if he is removed to Mexico, the
child will remain in the United States with her mother, an undocumented alien with no
source of income. When asked about the child’s mother’s background, Gurrola‐Rosales
explained that she has never worked, and that before moving in with him, she lived with
family members in the United States. He further noted that his daughter’s maternal
grandmother suffers from diabetes.
At the conclusion of the hearing, the IJ granted Gurrola‐Rosales’s application for
cancellation of removal. The IJ found that Gurrola‐Rosales had shown continuous physical
presence in the United States for ten years and that, as the government conceded, he had
established good moral character. See § 1229b(b)(1). The IJ next found that Gurrola‐Rosales
had established that his removal would work an exceptional and extremely unusual
hardship on his daughter given her medical issues, frequent surgeries, and the possibility
that she may be at risk for diabetes, which, the IJ opined, could be aggravated by
medications. The IJ concluded by stating that, “Under these circumstances, the Court finds
that at this trying time in the child’s life, to be separated from her father when she is going
through this medical sojourn in which she is exposed to repetitive operations, the Court
finds that psychologically and physiologically, the child would suffer the requisite
exceptional and extremely unusual hardship.”
The DHS appealed, and the BIA vacated the IJ’s order and denied Gurrola‐Rosales’s
application for relief. The BIA explained that Gurrola‐Rosales had failed to show that his
daughter would experience exceptional and extremely unusual hardship if he is removed,
given that she would likely remain with her mother in the United States, where the
government pays for her medical care. The BIA concluded that the IJ had further erred by
speculating about the risk of a future onset of diabetes. Moreover, the BIA reasoned, the IJ’s
finding that the child would suffer psychological hardship was not supported by any
testimony in the record. Accordingly, the BIA ordered Gurrola‐Rosales removed and

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1 Because the BIA’s order of removal will not be affected by the outcome of Gurrola‐
Rosales’s application for voluntary departure, the order is a “final order of removal” under
8 U.S.C. § 1252(a)(1), the first hurdle to our jurisdiction. See Viracacha v. Mukasey, 518 F.3d
511, 513‐14 (7th Cir. 2008); Yusupov v. Attorney Gen., 518 F.3d 185, 195‐96 (3d Cir. 2008).
remanded the case to the IJ for the limited purpose of addressing Gurrola‐Rosales’s request
for voluntary departure. 1 This petition for review followed.
In his petition Gurrola‐Rosales argues that the BIA erred in reversing the IJ’s decision
and failed to thoroughly review the record. The government, however, responds that we
lack jurisdiction to consider the petition. As the government correctly notes, 8 U.S.C.
§ 1252(a)(2)(B)(i) strips us of jurisdiction to review any judgment regarding the
discretionary decision to cancel removal under § 1229b(b)(1). See Stepanovic v. Filip, 554 F.3d
673, 678‐79 (7th Cir. 2009); Chavez‐Vasquez v. Mukasey, 548 F.3d 1115, 1118 (7th Cir. 2008);
Mireles v. Gonzales, 433 F.3d 965, 968 (7th Cir. 2006). Nevertheless, we retain jurisdiction to
consider constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(D); Chavez‐Vasquez,
548 F.3d at 1118.
Gurrola‐Rosales attempts to skirt this jurisdictional bar by arguing that the BIA
violated his right to due process by completely failing to consider the record and
“irrationally” remanding the case to the IJ for a determination on his request for voluntary
departure. At the outset, Gurrola‐Rosales’s contention that the BIA’s limited remand was
confusing and irrational lacks merit. Because the IJ granted Gurrola‐Rosales’s request for
relief, the IJ did not make the necessary findings to support voluntary departure under 8
U.S.C. § 1229c. Although the evidence in the record may have been sufficient to support a
finding of eligibility, the BIA was entitled to permit the IJ to make this determination in the
first instance. See 8 C.F.R. § 1003.1(d)(3) (detailing the BIA’s scope of review); see, e.g.,
Zamora‐Mallari v. Mukasey, 514 F.3d 679, 695 (7th Cir. 2008); Zahren v. Gonzales, 487 F.3d
1039, 1040 n.2 (7th Cir. 2007); Castrejon‐Garcia v. Immigration & Naturalization Serv., 60 F.3d
1359, 1361‐62 (9th Cir. 1995). And Gurrola‐Rosales’s contention that the BIA so completely
failed to consider the evidence as to constitute a denial of due process is belied by the
record. As the BIA explained, its decision to reverse the IJ’s grant of relief was based on its
finding that the medical evidence and testimony “does not indicate that [the daughter’s]
condition is so severe that it imposes needs and limitations in her life which would
necessitate the respondent’s continued residence in the United States.” Based on its
examination of the record, the BIA further concluded that there was no evidence to show
that his daughter faced psychological harm or a specific risk of diabetes. The BIA’s order
discusses Gurrola‐Rosales’s testimony in detail and supports its reasoning with citations to
the hearing transcript and record evidence. Accordingly, Gurrola‐Rosales’s argument is

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2 Finding that we lack jurisdiction to review the BIA’s decision should not be
confused with agreeing with that decision. Given Gurrola‐Rosales’s 17 years here, his
admittedly good moral character, his work record, family, and sickly daughter, we much
prefer the decision of Judge Brahos. With everything else it has to do, why the DHS thought
this matter was so important that an appeal to the BIA was necessary, is less than clear.
more accurately characterized as a challenge to the manner in which the BIA weighed the
evidence, and thus does not present a question of law. See Chavez‐Vasquez, 548 F.3d at 1119;
Khan v. Filip, 554 F.3d 681, 688‐89 (7th Cir. 2009).
Perhaps anticipating this outcome, Gurrola‐Rosales also contends that the BIA did
not follow its own precedent, noting that prior decisions of the BIA, addressing the standard
for exceptional and extremely unusual hardship, “have all turned on the ability of those
respondents to care for their children.” Gurrola‐Rosales is correct that questions of law may
include a misreading of the Board’s own precedent or use of the wrong legal standard. See
Patel v. Holder, 563 F.3d 565, 568 (7th Cir. 2009); Huang v. Mukasey, 534 F.3d 618, 620 (7th Cir.
2008). But here the BIA applied the correct legal standard under § 1229b, and although
recognizing that In re Monreal‐Aguinaga, 23 I. & N. Dec. 56, 63 (BIA 2001), suggests that
an alien might have a strong case for cancellation of removal if he can show that he has “a
qualifying child with very serious health issues,” the BIA nevertheless found that the
medical condition of Gurrola‐Rosales’s daughter is not “so severe” that it would cause her
to experience exceptional and extremely unusual hardship. The BIA further noted that the
child is likely to remain with her mother where her medical expenses will be covered.
Again, Gurrola‐Rosales’s argument can only be described as a challenge to the BIA’s factual
determinations and thus presents no question of law for review. See Adebowale v. Mukasey,
546 F.3d 893, 896 (7th Cir. 2008) (“A question does not become ‘constitutional’ or ‘legal’ just
because its resolution involves the application of a legal standard . . . .”); Johnson v. Mukasey,
546 F.3d 403, 404‐05 (7th Cir. 2008). Because Gurrola‐Rosales has not identified any
constitutional claims or questions of law, we lack jurisdiction to review the BIA’s order of
removal.2
Accordingly, we DISMISS the petition for review.

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