Hector Gonzalez-Rivas v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 21-3364
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Hector Gonzalez-Rivas
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: September 22, 2022
Filed: November 23, 2022
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Before GRUENDER, SHEPHERD, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Hector Gonzalez-Rivas, a native and citizen of Guatemala, applied for
cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1). He has three children,
who were 19, 10, and 5 years old at the time of the merits hearing in April 2017.
The immigration judge denied Gonzalez-Rivas’s application. The Board of
Immigration Appeals (“BIA”) dismissed his appeal, and Gonzalez-Rivas timely
petitioned for review of the BIA’s decision. We dismiss the petition.

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To qualify for cancellation of removal, an alien must show: (1) continuous
physical presence in the United States for at least 10 years; (2) good moral character;
(3) no convictions of certain crimes; and (4) removal would result in “exceptional
and extremely unusual hardship” to a qualifying relative. Apolinar v. Barr, 945 F.3d
1072, 1074 (8th Cir. 2019) (citing 8 U.S.C. § 1229b(b)(1)). At issue is only the
fourth prong—the BIA’s determination that Gonzalez-Rivas’s removal from the
United States would not result in exceptional and extremely unusual hardship to his
children.
Because cancellation of removal is a “discretionary form of relief,” Ali v.
Barr, 924 F.3d 983, 985 (8th Cir. 2019), our jurisdiction is limited, Rodriguez v.
Barr, 952 F.3d 984, 989-90 (8th Cir. 2020). We have jurisdiction to review
constitutional claims and questions of law. Id. at 990; 8 U.S.C. § 1252(a)(2)(D).
However, federal courts are without jurisdiction “to review facts found as part of
discretionary-relief proceedings.” Patel v. Garland, 142 S. Ct. 1614, 1627 (2022).
The phrase “questions of law” set forth in § 1252(a)(2)(D) extends to mixed
questions of law and fact involving the proper “application of a legal standard to
undisputed or established facts.” Guerrero Lasprilla v. Barr, 140 S. Ct. 1062, 1067
(2020).
To invoke our jurisdiction, Gonzalez-Rivas frames his issues as constitutional
or legal errors. Specifically, he contends the Court must vacate the BIA decision
because (1) he has a Fifth Amendment due process right to the care, custody, and
control of his minor children; (2) the BIA should shift to a “best interests” analysis
that considers the adverse emotional and financial effects on children caused by the
permanent separation of a removed parent; and (3) the BIA abused its discretion or
misapplied the hardship standard by citing to Matter of Pilch, 21 I&N Dec. 627, 631
(BIA 1996)—a case in which the hardship was not a parent permanently leaving his
children, but a family being removed and separated from extended family residing
in the United States.

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Gonzalez-Rivas has provided no authority allowing us to direct the BIA to
implement a new analytical standard for exceptional and extremely unusual
hardship. To the extent Gonzalez-Rivas claims the BIA misapplied the applicable
hardship standard—a question of law which we may review, Garcia-Ortiz v.
Garland, 20 F.4th 1212, 1215 (8th Cir. 2021)—his claim is without merit. The BIA
considered the relevant hardship factors presented cumulatively, noting specifically
that Gonzalez-Rivas has a loving relationship with his children, he provides financial
support for his family, his children are in good health with no learning disabilities or
mental health issues, and they will suffer significant emotional and financial
hardship following removal. It does not necessarily follow that because the BIA
reached an unfavorable determination or cited a case that Gonzalez-Rivas believes
can be distinguished from his case, it misapplied the applicable hardship standard.
Even after Guerrero Lasprilla, the BIA’s discretionary conclusion that the
hardship to the children is not substantially beyond that typically caused by an
alien’s removal “is precisely the discretionary determination that Congress shielded
from our review.” Rodriguez, 952 F.3d at 990; see Garcia-Ortiz, 20 F.4th at 1216-
17 (declining to review factual matters such as whether removal proceedings were
the cause of child’s declining mental health); see also Castillo-Gutierrez v. Garland,
43 F.4th 477, 481 (5th Cir. 2022); Galeano-Romero v. Barr, 968 F.3d 1176, 1182-
83 (10th Cir. 2020).
For the foregoing reasons, we dismiss the petition.
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