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: May 20, 2024
Filed: July 23, 2024
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Before GRUENDER, SHEPHERD, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
This matter comes to us on remand after the Supreme Court vacated our
previous opinion, Gonzalez-Rivas v. Garland, 53 F.4th 1129 (8th Cir. 2022),
vacated, - - U.S. - -, 144 S. Ct. 1338 (2024), in light of Wilkinson v. Garland, 601
U.S. 209 (2024). In our previous opinion, we found unreviewable the Bureau of
Immigration Appeal’s (“BIA”) determination that Gonzalez-Rivas did not satisfy
the “exceptional and extremely unusual hardship” standard set forth in 8 U.S.C.

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§ 1229b(b)(1)(D). Since we have jurisdiction to review application of this standard
to a given set of facts, we turn to the BIA’s determination that Gonzalez-Rivas’s
removal from the United States would not result in an exceptional and extremely
unusual hardship to any of his qualifying children. See Wilkinson, 601 U.S. at 225
(explaining that whether the established facts satisfy the statutory eligibility standard
in § 1229b(b) is subject to judicial review as a mixed question of law and fact).
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 that were 19,
10, and 5 years old at the time of the merits hearing in April 2017. Gonzalez-Rivas
contends the Court must vacate the BIA’s unfavorable 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.
As to his Fifth Amendment claim, the decision below does not mandate that
Gonzalez-Rivas be separated from his minor children. As minors, it is the parents’
decision whether to take the minor children along or leave them in the United States
when and if they are deported. Liu v. United States Dep’t of Justice, 13 F.3d 1175,
1177 (8th Cir. 1994). Further, Gonzalez-Rivas has provided no authority allowing
us to direct the BIA to implement a new analytical standard for determining whether
an exceptional and extremely unusual hardship exists.
Finally, the BIA considered the relevant hardship factors submitted by
Gonzalez-Rivas cumulatively, noting specifically that Gonzalez-Rivas has a loving
relationship with his children, that he provides financial support for his family, and
that his children are in good health with no learning disabilities or mental health

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issues. After recognizing the importance of Gonzalez-Rivas in the children’s lives,
the BIA found that he did not demonstrate the requisite level of hardship for purposes
of establishing his eligibility for cancellation of removal, as the hardship shown was
not beyond that typically caused by a parent’s removal from the United States. 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 that the BIA misapplied the applicable hardship standard. Application of
the statutory exceptional and extremely unusual hardship standard is a mixed
question of law and fact that is primarily factual thus our review is deferential. See
Wilkinson, 601 U.S. at 217. The BIA had a complete picture of the hardship claimed
by Gonzalez-Rivas and we find no error or abuse of discretion in the agency’s
determination that he failed to satisfy the standard.
The petition is denied.
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