Jaime Barboza-Cruz v. Merrick B. Garland, Attorney General of the United States

United States Court of Appeals
For the Eighth Circuit
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No. 22-2745
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Jaime Barboza-Cruz
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: May 9, 2023
Filed: July 19, 2023
[Unpublished]
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Before SHEPHERD, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
Jaime Barboza-Cruz, a native and citizen of Mexico, petitions for review from
an order of the Board of Immigration Appeals (BIA) affirming an immigration
judge’s (IJ) decision to deny his application for cancellation of removal. We dismiss
the petition for review in part and deny the petition for review in part.

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I.
Barboza-Cruz entered the United States without being lawfully admitted in
the early 2000s. On April 16, 2010, the Department of Homeland Security (DHS)
commenced removal proceedings against him, charging Barboza-Cruz with
removability pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present without
being admitted or paroled. Barboza-Cruz admitted to the factual allegations charged
in the Notice to Appear and conceded removability. However, he submitted
applications for asylum, statutory withholding of removal, protection under the
Convention Against Torture (CAT), cancellation of removal, and voluntary
departure.
Regarding his application for cancellation of removal, Barboza-Cruz argued
that his removal would result in an “exceptional and extremely unusual hardship” to
his daughter, a qualifying United States citizen. 8 U.S.C. § 1229b(b)(1)(D).
Specifically, he argued that his removal would likely render him unable to pay child
support and affect the close relationship he has with his daughter, causing her
economic and emotional hardship. In support of his argument, the IJ heard testimony
from Barboza-Cruz as well as the daughter’s mother. In reviewing the claim, the IJ
noted that the daughter had no health issues and was doing well in school. While
the IJ admitted that there would be emotional hardship, he found that such hardship
did not “rise to the level of exceptional and extremely unusual hardship” needed to
obtain relief. Accordingly, the IJ denied Barboza-Cruz’s application for cancellation
of removal. The IJ also denied his applications for asylum, statutory withholding of
removal, and CAT protection but granted his application for voluntary departure.
Barboza-Cruz appealed the IJ’s decision to the BIA. First, he argued that the
proceedings needed to be remanded to the IJ because the transcript of his
proceedings was defective, preventing the BIA from conducting a full and fair
review of his appeal. Specifically, Barboza-Cruz noted that the portions of the
transcript containing the colloquy between the IJ and the daughter’s mother were
missing. He next argued, as relevant to this appeal, that the IJ erred in denying his

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application for cancellation of removal. He contended that the daughter’s economic
and emotional hardship met the threshold for relief and that the IJ did not fully
consider and weigh the evidence before him.
The BIA affirmed the IJ’s decision and dismissed the appeal. It noted that
Barboza-Cruz had not identified the information missing from the transcript that
would impact its review. As to Barboza-Cruz’s application for cancellation of
removal, the BIA found that the daughter’s hardship was insufficient to warrant
relief and that the IJ discussed all the relevant emotional and financial
considerations. Accordingly, the BIA affirmed the denial of Barboza-Cruz’s
application for cancellation of removal.1
II.
Barboza-Cruz petitions this Court for review of the BIA’s order, arguing that
(1) the BIA violated his due process rights when it reviewed his claim for
cancellation of removal with a deficient transcript and (2) the BIA erred in affirming
the denial of his application for cancellation of removal. We address each argument
in turn.
A.
We review whether Barboza-Cruz’s due process rights were violated de novo,
“as that inquiry is purely legal in nature.” Holmes v. Garland, 37 F.4th 520, 523
(8th Cir. 2022). “To establish a due process violation, ‘a party must demonstrate a
protected liberty or property interest[,]’ which primarily requires showing ‘an
expectation of receiving some measure of relief.’” Orpinel-Robledo v. Garland, 5
F.4th 893, 895 (8th Cir. 2021) (citation omitted). Barboza-Cruz contends only that
1 Barboza-Cruz also appealed the denial of his other requested forms of relief,
which the BIA affirmed. Barboza-Cruz does not further challenge these findings in
his petition for review. Accordingly, we have recited only the procedural history
relevant to the matters on appeal.

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the alleged error—i.e., the deficient transcript—affected review of his application
for cancellation of removal. See Pet’r’s Br. 11-12. However, Barboza-Cruz’s claim
is foreclosed, as we have held that an alien has no constitutionally protected liberty
interest in the discretionary remedy of cancellation of removal. See id. (“The
executive branch has ‘unfettered discretion’ over removal cancellations, however,
and ‘an alien [therefore] can have no constitutionally protected liberty interest in
such speculative relief and cannot state a claim for a violation of due process rights.’”
(citation omitted)); see also Hernandez v. Att’y Gen., 784 F. App’x 742, 750 (11th
Cir. 2019) (holding that petitioner provided with “an incomplete transcript of his
hearing” did not have a cognizable due process interest in cancellation of removal).
Accordingly, we deny Barboza-Cruz’s petition for review as it relates to this claim.
B.
Next, we turn to the denial of Barboza-Cruz’s application for cancellation of
removal. “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.” Gonzalez-
Rivas v. Garland, 53 F.4th 1129, 1131 (8th Cir. 2022) (citation omitted). The IJ and
the BIA denied Barboza-Cruz’s application because he failed to demonstrate that his
daughter, a qualifying relative, would face an exceptional and extremely unusual
hardship as a result of his removal. As an initial matter, we recognize that our
jurisdiction to review claims related to cancellation of removal is limited. See
Garcia-Pascual v. Garland, 62 F.4th 1096, 1100-01 (8th Cir. 2023) (“Congress has
sharply circumscribed judicial review of the discretionary-relief process.” (quoting
Patel v. Garland, 142 S. Ct. 1614, 1619 (2022))). We lack jurisdiction to review the
agency’s factual findings, as well as “the [BIA’s] determination that a citizen would
face exceptional and extremely unusual hardship.” Id. at 1101 (citation omitted).
However, we have jurisdiction to review “constitutional claims or questions of law
raised upon a petition for review.” Id. (citation omitted).

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Barboza-Cruz contends that the IJ and the BIA applied the wrong legal
standard in evaluating the daughter’s hardship. Whether the agency applied the
correct legal standard is a question of law which we may review. Gonzalez-Rivas,
53 F.4th at 1131; see also Gomez-Perez v. Holder, 569 F.3d 370, 373 (8th Cir. 2009).
We review such questions de novo. See Garcia-Pascual, 62 F.4th at 1100. As
always, “[w]e review the BIA’s decision, as it is the final agency decision; however,
to the extent that the BIA adopted the findings or the reasoning of the IJ, we also
review the IJ’s decision as part of the final agency action.” Lemus-Coronado v.
Garland, 58 F.4th 399, 402 (8th Cir. 2023) (citation omitted).
Barboza-Cruz claims that the IJ and the BIA applied the wrong legal standard
by focusing only on present circumstances rather than on future hardship. We
disagree with Barboza-Cruz’s characterization of the IJ’s and the BIA’s orders. The
IJ found that the daughter “will” suffer emotional hardship but that Barboza-Cruz
did not establish “that his removal would result in an exceptional and extremely
unusual hardship to his daughter.” Administrative R. 48 (emphasis added). The
BIA agreed, finding that “this hardship”—that is, that hardship which “his daughter
would experience . . . should they be separated by [Barboza-Cruz’s] removal”—was
insufficient to meet the threshold for cancellation of removal. Administrative R. 4
(emphasis added). We have held the use of this language evidences the agency’s
consideration of future hardship. See Gomez-Perez, 569 F.3d at 373. Accordingly,
we deny Barboza-Cruz’s petition for review on this basis.
Barboza-Cruz also contends that the IJ and the BIA erred by not considering
the economic hardship that his removal would have on the daughter. This question
however falls outside of our jurisdiction. Garcia-Pascual, 62 F.4th at 1103 (“A
petitioner’s argument ‘that the [BIA] applied the incorrect legal standard by failing
to adequately consider certain factors’ is actually a challenge to the [BIA’s]
discretionary determination that we lack jurisdiction to review.” (citation omitted)).
Accordingly, we dismiss the portion of Barboza-Cruz’s petition for review for lack
of jurisdiction.

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III.
For the foregoing reasons, we dismiss the petition for review in part and deny
this petition for review in part.
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