Gary Smith v. Warden Jeffie Walker

United States Court of Appeals
For the Eighth Circuit
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No. 20-2529
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Artemio Garcia-Pascual
lllllllllllllllllllllPetitioner
v.
Pamela Bondi, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: January 14, 2025
Filed: July 7, 2025
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Before SMITH, ARNOLD, and STRAS, Circuit Judges.
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ARNOLD, Circuit Judge.
After the Board of Immigration Appeals denied Artemio Garcia-Pascual’s
request for cancellation of removal, we dismissed his petition to review that decision
for lack of jurisdiction. See Garcia-Pascual v. Garland, 62 F.4th 1096, 1103 (8th Cir.
2023). The Supreme Court vacated our decision and directed us to reconsider it in

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light of Wilkinson v. Garland, 601 U.S. 209 (2024). Having done so, we now deny
the petition for review.
During removal proceedings that the Department of Homeland Security
initiated, Garcia-Pascual conceded that he was removable from the country as an alien
present without being admitted or paroled, see 8 U.S.C. § 1182(a)(6)(A)(i), but he
sought a form of relief known as cancellation of removal. To obtain cancellation of
removal, Garcia-Pascual had to show, among other things, that his “removal would
result in exceptional and extremely unusual hardship to [his] spouse, parent, or child,
who is a citizen of the United States.” See id. § 1229b(b)(1)(D). Garcia-Pascual
maintained that the hardship his two sons would suffer should he be removed to his
native Mexico without them would satisfy this standard. An immigration judge held
a hearing on the matter at which Garcia-Pascual and his wife testified, and the judge
found that both did so credibly. But he denied the request for cancellation of removal,
holding that the hardships Garcia-Pascual’s sons would suffer “are not substantially
different from those that would normally be expected upon the separation of a parent
from his children.” Garcia-Pascual challenged the decision before the BIA, but the
BIA affirmed the immigration judge’s decision without opinion.
After we dismissed his petition on appeal, the Supreme Court in Wilkinson held
that “[t]he application of a statutory legal standard (like the exceptional and extremely
unusual hardship standard) to an established set of facts is a quintessential mixed
question of law and fact” that we have jurisdiction to review. 601 U.S. at 212. When
the Court vacated our prior decision in light of Wilkinson, we asked the parties to file
supplemental briefs on Garcia-Pascual’s petition. Though the parties don’t dispute
that we have jurisdiction to decide the petition, they disagree on the standard of
review that governs. We need not resolve their dispute. As the Court noted in
Wilkinson, 601 U.S. at 225, our review of whether the established facts show that
Garcia-Pascual’s sons would experience the requisite hardship must be “deferential,”
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and Garcia-Pascual’s petition fails whether we characterize that deference as
requiring us to review for an abuse of discretion or for substantial evidence.
When the BIA affirms an immigration judge’s decision without opinion, the
immigration judge’s decision is the final agency action for purposes of judicial
review. See Abdelwase v. Gonzales, 496 F.3d 904, 906 (8th Cir. 2007). Garcia-
Pascual does not take issue with the immigration judge’s determination that to meet
the hardship standard he had to show that his sons “would suffer hardship that is
substantially different from, or beyond, that which would normally be expected from
the deportation of an alien with close family members here.” See In re Monreal-
Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001). He instead raises the precise type of
challenge that the Court in Wilkinson says we have jurisdiction to consider: whether
the established facts show that his sons would face exceptional and extremely unusual
hardship upon his removal to Mexico.
In rejecting the contention that the boys would face exceptional and extremely
unusual hardship, the immigration judge recognized that Garcia-Pascual’s removal
would likely strain the family financially and would remove a loving, paternal
presence in the boys’ lives. But, the judge noted, these difficulties aren’t exceptional
or unusual in removal cases. He also observed that the boys were healthy, do well in
school, and would continue to attend the same schools if Garcia-Pascual were
removed. In Gonzalez-Rivas v. Garland, 109 F.4th 1010, 1012 (8th Cir. 2024), we
considered a similar petition for review submitted by a father seeking cancellation of
removal who supported his family financially and had “a loving relationship with his”
three children, all of whom were “in good health with no learning disabilities or
mental health issues.” We upheld the BIA’s determination that “the hardship shown
was not beyond that typically caused by a parent’s removal from the United States.”
See id. There’s no reason to take a different course here.
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Garcia-Pascual points to some other circumstances in his effort to show that his
removal will cause his sons exceptional and extremely unusual hardship. He observes
that his eldest son, who was eleven years old at the time of the hearing, had just a
month before the hearing learned that Garcia-Pascual was not his biological father.
We agree with the immigration judge’s observation that, though such a circumstance
might be “uncommon” or even “unique,” it doesn’t necessarily follow that the
resulting hardship the son will suffer is exceptional or extremely unusual. It goes
without saying that separation from a family member is onerous, see Tejado v.
Holder, 776 F.3d 965, 969 (8th Cir. 2015) (per curiam), and that’s so for biological
and non-biological children alike. We see no error in the immigration judge holding
that this feature of Garcia-Pascual’s case didn’t allow him to clear the hardship bar.
Garcia-Pascual also highlights his wife’s testimony that this son had been
somewhat withdrawn since learning that Garcia-Pascual might be removed. But that
must surely be true for many children his age who learn of a parent’s potential
removal, and, though we sympathize, the boy’s response doesn’t render his situation
exceptional or extremely unusual. Cf. Gonzalez Galvan v. Garland, 6 F.4th 552, 556,
561 (4th Cir. 2021); Araujo-Padilla v. Garland, 854 F. App’x 646, 651 (6th Cir.
2021).
During the hearing Garcia-Pascual’s wife testified that she had tried to obtain
a passport for her eldest son, but her efforts proved unsuccessful without his
biological father’s signature, and his whereabouts are unknown. Garcia-Pascual faults
the immigration judge for not addressing how this son’s inability to leave the country
to visit Garcia-Pascual might add to his hardship. But Garcia-Pascual doesn’t direct
us to any part of the administrative record where he told the immigration judge how
the difficulty getting his son a passport contributed to the hardships his son would
face. In fact, when Garcia-Pascual appealed the immigration judge’s decision to the
BIA, he barely mentioned the passport predicament. And when he did, he merely
pointed out that his son might have difficulty visiting Garcia-Pascual’s wife (not
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Garcia-Pascual himself) should she be removed to Mexico sometime in the future. So
it’s no surprise that neither the immigration judge nor the BIA examined this
contention closely. We note as well that Garcia-Pascual has not shown that the
passport difficulty will last very long, that substitutes for in-person contact would not
suffice, or that other families with a removed parent don’t face similar obstacles,
whether from legal hurdles like the inability to get a passport or from practical
hurdles like the inability to pay for international travel. In sum, we see no reason to
disturb the agency’s determination on this ground.
Finally, Garcia-Pascual contends that the immigration judge erroneously
concluded that the expected hardships were insufficient because the judge considered
the hardships only in isolation and not in the aggregate. We disagree. A judge’s
discussion of items in sequential order does not mean that the judge has failed to
consider their cumulative weight. And here, the judge explicitly noted that he had
considered the hardships “individually and in the aggregate.” Though the judge at one
point cited a BIA decision for the proposition that “economic detriment alone is
insufficient” to meet the hardship standard, the judge never purported to rely on that
decision alone. Instead, the judge found that Garcia-Pascual had come up short
whether it considered the adverse circumstances his sons faced individually or
cumulatively. Since the judge carefully examined “a complete picture of the hardship
claimed by” Garcia-Pascual, see Gonzalez-Rivas, 109 F.4th at 1012, we discern no
reason to undo a decision to which we owe deference.
Petition denied.
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