Ana Martinez Choto v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12544
Non-Argument Calendar
____________________
ANA DELMY MARTINEZ CHOTO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-463-545
____________________
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2 Opinion of the Court 23-12544
Before R OSENBAUM , GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Ana Delmy Martinez Choto seeks review of the Board of
Immigration Appeals’ (“BIA”) order affirming the Immigration
Judge’s (“IJ”) denial of her application for cancellation of removal
under 8 U.S.C. § 1229b. After careful review, we deny the petition.
I.
Martinez Choto is a native and citizen of El Salvador who
entered the United States in 2005 without admission or parole by
an immigration officer. In August 2018, the Department of Home-
land Security initiated removal proceedings against Martinez
Choto, charging her as removable for being present in the United
States without authorization. See 8 U.S.C. § 1182(a)(6)(A)(i).
Through counsel, Martinez Choto admitted the allegations and
conceded removability.
Martinez Choto applied for cancellation of removal for non-
permanent residents. In her application, she indicated that her re-
moval would result in exceptional and extremely unusual hardship
to her son, J.A., a United States citizen born in 2012. In support of
that contention, she submitted various documents, including (1) a
2019 psychological report finding that J.A. had Attention Deficit
Hyperactivity Disorder (“ADHD”), as well as a developmental dis-
order of speech and language; (2) psychotherapy notes from a reg-
istered clinical social worker; (3) a biopsychosocial assessment
from 2018 finding that J.A. had ADHD, combined type, and
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23-12544 Opinion of the Court 3
recommending therapy; (4) information about ADHD from the
National Institutes of Health; (5) a referral form for psychiatry; and
(6) J.A.’s school records, which showed that he was below grade
level in both language arts and mathematics and was also receiving
accommodations in language arts. She also provided World Health
Organization statistics regarding the availability of mental-health
resources in El Salvador.
In February 2020, Martinez Choto appeared before an IJ and
testified in support of her application. She stated that she had one
child, J.A., who was seven years old at the time of her testimony.
J.A. was diagnosed with ADHD in 2018, for symptoms including
difficulty sleeping and following instructions, frustration when he
does not see progress, and changing the subject “out of nowhere.”
For treatment, he had one-hour therapy sessions twice per month.
He also took melatonin for difficulty sleeping and iron for an iron
deficiency. He was in the second grade and was being evaluated
for special-education placement because of his lagging progress.
He could speak Spanish, which was the primary language spoken
at home, but could not read or write it, and he received accommo-
dations in school for his low English language proficiency.
Martinez Choto further testified that if she were removed to
El Salvador, she would take J.A. with her and stay with her parents.
She believed that, in El Salvador, she would not have enough
money to continue his therapy treatment, and that he would not
receive the benefits he currently received, like “education, health,
[and] food.”
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4 Opinion of the Court 23-12544
After the parties presented argument on the issue of hard-
ship to J.A., the IJ issued an oral decision denying Martinez Choto’s
application for cancellation relief and ordered her removal. The IJ
said that cancellation of removal was appropriate only “where the
facts demonstrate an exceptional and extremely unusual hardship
to a qualifying family member,” namely, her son. Citing Matter of
Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001), the IJ outlined the
relevant analysis as follows:
In determining whether [Martinez Choto] has satis-
fied the standard, the Court has considered all factors
in the aggregate. Relevant factors include the ages,
health, and circumstances of a qualifying relative. A
strong applicant might have a qualifying child with
very serious health issues or compelling special needs
in school. A lower standard of living or adverse coun-
try conditions in the country of removal are relevant
but are generally insufficient without more to consti-
tute exceptional and extremely unusual hardship to a
qualifying relative.
The IJ found that Martinez Choto, based on her testimony
and documentary evidence, had not established that her son would
experience hardship that rose to the level of exceptional and ex-
tremely unusual hardship as a result of her removal. The IJ found
that J.A. had been diagnosed with ADHD, had sleep difficulties, an
iron deficiency, and a developmental disorder of speech and lan-
guage, and that he saw a clinical social worker twice per month for
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23-12544 Opinion of the Court 5
therapy. But the IJ concluded that Martinez Choto had not shown
that these conditions were not treatable, or that J.A.’s course of
treatment was “not available in El Salvador.” The IJ noted that,
while there was evidence that “access to some therapy is more lim-
ited in El Salvador,” the fact that medical facilities in El Salvador
“may not be as good as they are in the United States [did] not itself
establish exceptional and extremely unusual hardship to a qualify-
ing relative.”
Apart from the availability of treatment, the IJ considered
the severity of J.A.’s condition. In the IJ’s view, Martinez Choto
had not established that J.A.’s condition “constitute[d] very serious
health issues, or that his attention and behavioral disorders and ap-
parent language issues have resulted in compelling special needs in
[J.A.’s] education.” The IJ noted that the “only special accommo-
dation received by [J.A.] is related to English as a second language.”
The IJ also evaluated J.A.’s adjustment to El Salvador more
generally. She reasoned that, because J.A. spoke Spanish at home,
there would be no extreme or unusual hardship in his readjustment
to another language other than English, particularly in light of his
young age. While the IJ acknowledged that J.A. would face diffi-
culties adjusting to life in El Salvador, she concluded that they did
not “substantially differ from those encountered [by] other chil-
dren who relocate as a consequence of their parents’ deportation.”
Finally, the IJ determined that Martinez Choto had failed to prove
that she would face difficulties working and supporting her son in
El Salvador beyond the typical “economic detriment due to
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6 Opinion of the Court 23-12544
adverse country conditions in [El Salvador].” The “bottom line”
for the IJ was that Martinez Choto had not established the “type of
hardship that rises to the level of exceptional and extremely unu-
sual or that . . . goes substantially beyond that which is to be ex-
pected.
Martinez Choto appealed the IJ’s decision to the BIA. In her
brief to the BIA, she argued that her case should be remanded for
further consideration in light of Matter of J-J-G-, 27 I. & N. Dec. 808
(BIA 2020), which was issued shortly after the IJ’s decision and
which, in her view, clarified the appropriate standard for evaluating
a claim of exceptional and extremely unusual hardship based on the
medical condition of a qualifying relative. She otherwise argued
that the IJ made factual and legal errors in evaluating her evidence.
In July 2023, the BIA dismissed the appeal and affirmed the
order of removal. The BIA determined that Martinez Choto had
not established clear error in the IJ’s factual findings regarding the
hardship her son would experience upon her removal, and that the
IJ properly considered both the availability and quality of care in
analyzing whether J.A. would experience the requisite level of
hardship. Regarding Matter of J-J-G-, the BIA determined that the
case did not articulate a new standard and that the IJ considered the
seriousness of J.A.’s medical condition consistent with Matter of J-J-
G-. The BIA determined that the totality of the evidence did not
reflect that the hardship to J.A. would be “substantially beyond”
the ordinary hardship that would be expected when a close family
member leaves this country. Finally, the BIA found that remand
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23-12544 Opinion of the Court 7
to consider Matter of J-J-G- was not warranted because the IJ consid-
ered evidence of the seriousness of J.A.’s medical conditions and
the availability of care, and because Martinez Choto did not pro-
vide an explanation as to what additional evidence she would pre-
sent on remand.
Martinez Choto timely petitioned this Court for review.
II.
We review the decision of the BIA only, except to the extent
that the BIA expressly adopts or agrees with the IJ’s opinion or rea-
soning. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011).
“We therefore review the IJ’s opinion, to the extent that the BIA
found that the IJ’s reasons were supported by the record, and we
review the BIA’s decision, with regard to those matters on which
it rendered its own opinion and reasoning.” Id. (quotation marks
omitted).
Section 1229b allows the Attorney General to cancel the re-
moval of a noncitizen who demonstrates these four things: (1) con-
tinuous physical presence in the United States for at least ten years;
(2) good moral character during that period; (3) a lack of certain
criminal convictions; and (4) “exceptional and extremely unusual
hardship” to a “spouse, parent, or child” who is a U.S. citizen or
permanent resident. 8 U.S.C. § 1229b(b)(1).
Section 1252(a)(2)(B) states that we are barred from review-
ing “any judgment regarding” certain forms of relief, including can-
cellation of removal under § 1229b. 8 U.S.C. § 1252(a)(2)(B)(i). But
we retain jurisdiction to review “constitutional claims or questions
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8 Opinion of the Court 23-12544
of law” raised in a petition for review. Id. § 1252(a)(2)(D). “[T]he
statutory phrase ‘questions of law’ includes the application of a le-
gal standard to undisputed or established facts,” also referred to as
mixed questions of law and fact.” Wilkinson v. Garland, 601 U.S.
209, 217 (2024).
While this appeal was pending, the Supreme Court clarified
in Wilkinson that “the application of the statutory ‘exceptional and
extremely unusual hardship’ standard to a given set of facts pre-
sents a mixed question of law and fact” that is reviewable under
§ 1252(a)(2)(D).1 Id. at 221. That remains true even if the case “re-
quires a close examination of the facts.” Id. at 222. Thus, our con-
trary precedent on this question has been overruled. See Martinez
v. U.S. Att’y Gen., 446 F.3d 1219, 1222–23 (11th Cir. 2006) (“Not-
withstanding Congress’s enactment of § 1252(a)(2)(D), we con-
tinue to lack jurisdiction over the BIA’s purely discretionary deci-
sion that a petitioner did not meet § 1229b(b)(1)(D)’s ‘exceptional
and extremely unusual hardship’ standard.”).
Nonetheless, “a court is still without jurisdiction to review a
factual question raised in an application for discretionary relief.”
Wilkinson, 601 U.S. at 222. Thus, “an IJ’s factfinding on credibility,
the seriousness of a family member’s medical condition, or the
level of financial support a noncitizen currently provides remain
unreviewable.” Id. at 225. But “[w]hen an IJ weighs those found
facts and applies the ‘exceptional and extremely unusual hardship’
1 At our request, the parties have submitted supplemental briefs addressing the
effect of Wilkinson on this appeal.
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23-12544 Opinion of the Court 9
standard, . . . the result is a mixed question of law and fact that is
reviewable under § 1252(a)(2)(D).” Id. at 222. “Because this mixed
question is primarily factual, that review is deferential.” Id. at 225.
III.
“[T]he exceptional and extremely unusual hardship require-
ment is governed by BIA precedent.” Flores-Alonso v. U.S. Att’y
Gen., 36 F.4th 1095 (11th Cir. 2022), abrogated on other grounds by
Wilkinson v. Garland, 601 U.S. 209 (2024); see Matter of J-J-G-, 27 I. &
N. Dec. 808 (BIA 2020); Matter of Monreal-Aguinaga, 23 I. & N. Dec.
56 (BIA 2001); Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (BIA
2002); Matter of Gonzalez Recinas, 23 I. & N. Dec. 467 (BIA 2002).
According to the BIA, the hardship to the applicant’s qualifying rel-
atives, if the applicant is forced to leave the United States, “must be
‘substantially’ beyond the ordinary hardship that would be ex-
pected when a close family member leaves this country.” Matter of
Monreal, 23 I. & N. Dec. at 62.
In assessing hardship, the BIA considers several factors, in-
cluding the “ages, health, and circumstances” of qualifying rela-
tives. Id. at 63. There is no “fixed definition of what constitutes
exceptional and extremely unusual hardship,” but the BIA has of-
fered a few examples for guidance. Flores-Alonso, 36 F.4th at 1097.
For instance, “an applicant who has elderly parents in this country
who are solely dependent upon him for support might well have a
strong case.” Matter of Monreal, 23 I. & N. Dec. at 63. So too might
an applicant who has a “qualifying child with very serious health
issues, or compelling special needs in school.” Id. But a “lower
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10 Opinion of the Court 23-12544
standard of living or adverse country conditions in the country of
return,” while relevant to the inquiry, “generally will be insuffi-
cient in themselves to support a finding of exceptional and ex-
tremely unusual hardship.” Id. at 63–64. Nonetheless, “all hardship
factors should be considered in the aggregate when assessing ex-
ceptional and extremely unusual hardship.” Id. at 64.
In Matter of J-J-G-, issued after the IJ’s decision in this case,
the BIA clarified the showing required for cancellation applications
based on the health of a qualifying relative. See 27 I. & N. Dec. at
811–12. The BIA explained that an applicant basing a claim on the
health of a qualifying relative “needs to 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 coun-
try.” Id. at 811. Thus, the IJ must evaluate the “seriousness of a
qualifying relative’s medical condition and the reasonable availabil-
ity of medical care in the country of removal.” Id. Nonetheless,
Matter of J-J-G- reiterated that the hardship determination is “based
on a cumulative consideration of all hardship factors.” Id.
Martinez-Choto alleges several interrelated errors based on
Matter of J-J-G-. First, she says that the IJ and BIA applied a higher
standard of proof than what J-J-G- demands, requiring her to show
that J.A. had a “very serious medical condition,” and that treatment
was “not available,” instead of a “serious medical condition” for
which adequate treatment was “not reasonably available.” Second,
she claims that the BIA improperly reviewed for “clear error” the
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23-12544 Opinion of the Court 11
legal determination of whether the IJ used an incorrect legal stand-
ard regarding the availability of treatment. Third, the BIA, in her
view, made improper fact findings when it failed to remand for the
IJ to apply the lower, revised legal standard. And fourth, she con-
tends that the BIA abused its discretion by failing to follow its prec-
edent in Matter of J-J-G-. All of these arguments are questions of law
or mixed questions of law and fact that we have jurisdiction to re-
view under § 1252(a)(2)(D). See Wilkinson, 601 U.S. at 221–22.
Nonetheless, Martinez Choto’s overarching premise, that
Matter of J-J-G- set forth a lower standard for cancellation applica-
tions based on the health of a qualifying relative, is misguided. Mat-
ter of J-J-G- did not state a new legal standard because it neither
overruled nor conflicted with existing BIA precedent on the stand-
ard for exceptional and extremely unusual hardship. The discus-
sion of the hardship standard in Matter of J-J-G- was the same as that
in Matter of Monreal, which is evident because Matter of Monreal is
quoted multiple times and the discussions of the relevant hardship
standard were almost identical in both cases. See Matter of J-J-G-, 27
I. & N. Dec. at 811–14; Matter of Monreal, 23 I. & N. Dec. at 63–64.
And Matter of J-J-G- reiterated that “[t]he exceptional and extremely
unusual hardship for cancellation of removal is based on a cumula-
tive consideration of all hardship factors.” 27 I. & N. Dec. at 811–
12. So while Matter of J-J-G- clarified aspects of a cancellation appli-
cant’s evidentiary burden, it did not change the “cumulative” anal-
ysis immigration judges apply in hardship cases or the ultimate
standard applicants must meet. See id. at 814.
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12 Opinion of the Court 23-12544
In short, we agree with the BIA that Matter of J-J-G- “did not
articulate a new standard” for which remand to the IJ would be
required on this record. As the BIA explained, the record shows
that, consistent with Matter of J-J-G- and Matter of Monreal, the IJ
considered and made findings about both the seriousness of J.A.’s
medical condition and the availability of treatment in El Salvador
as part of its cumulative hardship analysis. See Matter of J-J-G-, 27 I.
& N. Dec. at 811, 814; Matter of Monreal, 23 I. & N. Dec. at 63. In
particular, the IJ found that J.A. suffered from ADHD, for which he
was receiving therapy from a clinical social worker twice per
month, and that the only accommodation he received for this con-
dition “was related to English as a second language,” which would
not be a problem in El Salvador since he spoke Spanish. And the IJ
reasoned that the evidence did not show that J.A. would be unable
to continue his treatment in El Salvador, even if “access to some
therapy is more limited there.” See Matter of J-J-G-, 27 I. & N. Dec.
at 812 (finding “no indication that [the qualifying relative] will be
unable to continue treatment if the respondent is removed”).
Those factual matters are not within the scope of our review. See
Wilkinson, 601 U.S. at 222.
Based on these and other findings, the IJ concluded that Mar-
tinez Choto had not established that her removal would result in
hardship “substantially beyond that which is to be expected,” the
same standard applied in Matter of J-J-G-. See 27 I. & N. Dec. at 814
(“The hardship must be substantially different from, or beyond,
that which would normally be expected from the deportation of [a
noncitizen] with close family members here.”) (quotation marks
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23-12544 Opinion of the Court 13
omitted). Martinez Choto does not claim “that the facts of her case
meet” the exceptional-and-extremely-unusual standard, and the IJ’s
determination strikes us as reasonable on its face. And we have
otherwise rejected her argument that Matter of J-J-G- articulated a
new standard warranting remand in this case. It follows that the
BIA, in affirming the IJ’s hardship determination, did not apply the
wrong hardship standard, apply the wrong standard of review,
make improper factual findings, or fail to follow its own precedent.
For these reasons, the BIA did not commit any legal error by
adopting and affirming the IJ’s denial of Martinez Choto’s applica-
tion for cancellation of removal without remanding for the IJ to
consider Matter of J-J-G-.
PETITION DENIED.
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