Estrada-Ortega v. Barr

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
HIPOLITO ESTRADA-ORTEGA, a/k/a
Miguel Estrada, a/k/a Reynel Ortega
Estrada, a/k/a Reynel Estrada-Ortega, a/k/a
Miguel Aangel Estrada,

Petitioner,

v.

WILLIAM P. BARR, United States
Attorney General,

Respondent.

No. 19-9563
(Petition for Review)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
Hipolito Estrada-Ortega petitions for review of the decision of the Board of
Immigration Appeals (BIA) denying his request to remand to an immigration judge
(IJ) in a cancellation-of-removal proceeding; the government moves to dismiss the
petition for lack of jurisdiction. For the reasons explained below, we deny the
government’s motion and affirm the BIA.

*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit

August 21, 2020

Christopher M. Wolpert
Clerk of Court
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Background
Estrada-Ortega is a Mexican citizen who entered the United States in 1998
without legal status. His wife also lacks legal status; together, they have a son and a
daughter who are U.S. citizens. Estrada-Ortega also has a stepdaughter living in
Mexico. In 2013, the Department of Homeland Security initiated a removal
proceeding against him. In response, Estrada-Ortega conceded that he is subject to
removal but asked for a cancellation of that removal. See 8 U.S.C. § 1229b(b)(1)
(allowing cancellation of removal for certain noncitizens who meet listed
requirements).
The IJ concluded Estrada-Ortega met the statutory requirements and granted
his request for cancellation of removal. As relevant here, that conclusion included a
finding that Estrada-Ortega’s U.S. citizen children would suffer from “exceptional
and extremely unusual hardship” if he were removed from the United States.
§ 1229b(b)(1)(D). The IJ found that Estrada-Ortega is the sole financial provider for
his disabled wife and two U.S. citizen children and that he supports his stepdaughter
in Mexico. Because his wife does not work and his U.S. citizen children would
remain in the United States, the IJ explained, removing Estrada-Ortega “would not
only result in impoverishment, it would result in the breakup of an intact family
unit.” R. vol. 1, 144. Next, the IJ considered “psychological and educational
evidence” of hardship as it pertained to Estrada-Ortega’s daughter. Id. The IJ noted
that, “if she were to accompany her father to Mexico,” her academic
accomplishments would “suffer significantly” and her career aspirations “would
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become unattainable.” Id. at 145. Further, her teachers said that her father’s removal
would be “catastrophic” to the whole family. Id. Thus, the IJ concluded, Estrada-
Ortega had demonstrated the requisite level of hardship to merit cancellation of
removal.
The government appealed to the BIA. The BIA first acknowledged that the IJ
found that Estrada-Ortega’s family would suffer financial hardship if he were
removed. But it also explained that the IJ wrongly considered what would happen to
his daughter if she went with Estrada-Ortega to Mexico because the children intended
to remain in the United States. Thus, under its de novo review and “upon
consideration of all relevant factors,” the BIA “disagree[d]” with the IJ’s conclusion
that Estrada-Ortega “met his burden of establishing that his children will face” the
requisite level of hardship if he were removed. Id. at 60; see In re Andazola-Rivas, 23
I. & N. Dec. 319, 323 (B.I.A. 2002) (explaining that “economic detriment alone”
does not demonstrate exceptional and extremely unusual hardship).
Estrada-Ortega moved for the BIA to reconsider its decision, arguing that the
BIA had impermissibly based its hardship ruling only on economic hardship to his
children. As relevant here, he requested that the BIA remand the case so the IJ could
clarify its factual findings. The BIA granted his motion to reconsider. It
acknowledged that it had not discussed nonfinancial hardships in its decision, but
nevertheless found Estrada-Ortega had not met the hardship standard:
We also understand that this case presents additional hardship relating to
understandable concerns about the emotional impact on [Estrada-Ortega’s]
children that would be created by his absence, particularly given [Estrada-
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Ortega’s] belief that his daughter’s academic performance will decline without
his presence. However, the evidence presented does not demonstrate elevated
or unusual emotional or psychological issues which rise to the requisite level
of hardship for cancellation[-]of[-]removal purposes. The hardships described
by [Estrada-Ortega] consist of the type of hardships that are normally
associated with a parent’s removal from the United States[] and do not rise to
the level of [the] exceptional[-]and[-]extremely[-]unusual standard for
cancellation of removal, despite the significance of these issues to the family.

R. vol. 1, 4 (internal citations omitted). It declined to remand the case for
additional factfinding because it had “reached a different conclusion based on the
same factors.” App. vol. 1, 4. Estrada-Ortega petitions for review of the BIA’s
decision, and the government moves to dismiss the petition for lack of jurisdiction.
1

Analysis
To obtain cancellation of removal, a removable noncitizen must demonstrate
(1) that he or she has been in the United States continuously for 10 years, (2) that he
or she has had “good moral character” during that period, (3) that he or she has not
been convicted of certain offenses, and (4) that eligible family members will suffer
“exceptional and extremely unusual hardship” if he or she is removed.
§ 1229b(b)(1)(A)–(D). As relevant here, this hardship exists only where eligible
family members “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” in the United States. In re Monreal-Aguinaga, 23 I. & N.

1
The government urges us to reject Estrada-Ortega’s response to its
jurisdictional motion because he filed it outside the applicable 10-day deadline. See
Fed. R. App. P. 27(a)(3)(A). But that deadline does not apply if we “extend[] the
time” to file—which is exactly what we did in this case. Id. We therefore reject the
government’s argument.
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Dec. 56, 65 (B.I.A. 2001). And “economic detriment alone” does not demonstrate
such hardship. In re Andazola-Rivas, 23 I. & N. Dec. at 323.
Estrada-Ortega argues that the BIA erred by denying his request to remand and
by making factual findings on appeal in violation of its own caselaw, applicable
regulations, and his due-process rights; the government argues that we lack
jurisdiction to consider his petition.
We begin with this jurisdictional argument. Our jurisdiction is a legal issue we
review de novo. Osuna-Gutierrez v. Johnson, 838 F.3d 1030, 1033 (10th Cir. 2016).
In general, we lack “jurisdiction to review[] any judgment regarding the granting of
relief” in cancellation-of-removal proceedings. 8 U.S.C. § 1252(a)(2)(B)(i).
Notwithstanding that provision, we do have jurisdiction over two categories of
review relevant here. First, we have held that § 1252(a)(2)(B)(i) is limited by
§ 1252(a)(2)(B)(ii): when read together, those provisions “prohibit review only of
those ‘judgments’ that are discretionary in nature.” Sabido Valdivia v. Gonzales, 423
F.3d 1144, 1149 (10th Cir. 2005) (quoting § 1252(a)(2)(B)(i)). In addition to
nondiscretionary determinations, we also have jurisdiction over “constitutional
claims or questions of law.” § 1252(a)(2)(D).
The government argues that we lack jurisdiction over Estrada-Ortega’s appeal
because he asks us to review the BIA’s discretionary decision: determining if the
facts of his case amount to exceptional and extremely unusual hardship. The
government is correct that “determining whether removal would cause” such
hardship is discretionary, and we therefore lack jurisdiction to consider the merits of
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that determination. Morales-Ventura v. Ashcroft, 348 F.3d 1259, 1262 (10th Cir.
2003). But the government misunderstands Estrada-Ortega’s argument. He does not
ask us to decide if the facts of his case meet the hardship standard. Rather, he asks us
to decide only whether the BIA violated its own caselaw, applicable regulations, and
his due-process rights when it declined his request to remand to the IJ.
Nevertheless, the government argues that we do not have jurisdiction over
even this question. First, the government argues that Estrada-Ortega fails to present a
colorable constitutional claim. But Estrada-Ortega explicitly argues that the BIA
violated his procedural due-process rights by denying him an opportunity to be
meaningfully heard when it ignored its regulations and caselaw. Cf. Schroeck v.
Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (noting that a petitioner’s “minimal”
due-process rights in removal proceedings include having “an opportunity to present”
his or her case (first quoting Aguilera v. Kirkpatrick, 241 F.3d 1286, 1292 (10th Cir.
2001))). Next, the government asserts that Estrada-Ortega does not present a
question[] of law” under § 1252(a)(2)(D). True, our precedents once suggested that
“questions of law” in § 1252(a)(2)(D) were limited to those legal questions that
involve statutory construction. See Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th
Cir. 2006). But the Supreme Court recently clarified, and the government concedes,
that this basis for our jurisdiction is not so narrow. See Guerrero-Lasprilla v. Barr,
140 S. Ct. 1062, 1067, 1073 (2020) (explaining that “questions of law” also extend to
mixed questions of law and fact). We subsequently explained that we have
jurisdiction to determine whether the BIA “contravene[d] statutory requirements” or
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“depart[ed] from or ignore[d] its precedent” when it determines whether a petitioner
has met the hardship requirement. Galeano-Romero v. Barr, No. 19-9585, 2020 WL
4458998, at *5 (10th Cir. Aug. 4, 2020). And even if we did not have jurisdiction
over Estrada-Ortega’s appeal under § 1252(a)(2)(D), we have jurisdiction to hear
appeals from nondiscretionary BIA decisions, as explained above. Sabido Valdivia,
423 F.3d at 1149. The BIA does not have discretion to violate the law. See Galeano-
Romero, 2020 WL 4458998, at *5(“Obviously, the [BIA] would lack discretion to
contravene statutory requirements.”); 8 C.F.R. § 1003.1(d)(1), (g) (requiring BIA’s
decisions to be “consistent” with statutes and regulations; explaining that BIA is
bound by its own precedent). We therefore have jurisdiction over Estrada-Ortega’s
assertion that, here, the BIA did just that.
Having concluded that we have jurisdiction, we now consider the merits of
Estrada-Ortega’s petition. We review the BIA’s denial of a request to remand for
abuse of discretion. Banuelos v. Barr, 953 F.3d 1176, 1179 (10th Cir. 2020). The
BIA “abuses its discretion when it makes an error of law.” Id.
Estrada-Ortega argues that the BIA improperly made its own factual findings
instead of remanding to the IJ to make those findings. Generally, the BIA cannot
engage in its own de novo factfinding and instead may remand to the IJ if more
factfinding is needed. See § 1003.1(d)(3)(i), (iv). Because of that “limited
fact[]finding authority” on appeal, “[i]f incomplete findings of fact are entered and
the [IJ’s] decision ultimately cannot be affirmed on the basis that he or she decided
the case, a remand of the case for further fact[]finding may be unavoidable.” In re S-
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H-, 23 I. & N. Dec. 462, 465 (B.I.A. 2002). And because “predictive findings of what
may or may not occur in the future” are “findings of fact,” they may only be made by
an IJ. In re Z-Z-O-, 26 I. & N. Dec. 586, 590 (B.I.A. 2015).
Estrada-Ortega argues that the IJ did not make predictive findings about the
nonfinancial hardship Estrada-Ortega’s children might face if he were removed. And,
he continues, because the BIA nevertheless made the hardship determination without
that predictive factfinding from the IJ, the BIA “must have inferred its own factual
findings” when it found that Estrada-Ortega did not demonstrate the requisite level of
hardship. Aplt. Br. 19. Thus, he argues, In re S-H- required the BIA to remand the
case to the IJ to make predictive factual findings in the first instance instead of
making the hardship determination itself without those findings from the IJ.
But the IJ’s decision in In re S-H- is not like the IJ’s decision here. There, the
BIA explained the IJ’s decision had an “almost complete lack of factual findings and
legal analysis.” In re S-H-, 23 I. & N. Dec. at 463. In fact, the BIA noted that the IJ
“did not make any specific findings of fact.” Id. (emphasis added). Here, by contrast,
the IJ did make predictive factual findings: among others, the IJ found that Estrada-
Ortega’s deportation would cause financial hardship and “break[ ]up” the family. R.
vol. 1, 144. Thus, unlike the “complete lack of factual findings” of any kind in In re
S-H-, the IJ’s decision here contained factual findings, including predictive findings.
In re S-H-, 23 I. & N. Dec. at 463. And Estrada-Ortega cites no authority that
requires the BIA to remand to the IJ to make particular types of factual findings. Cf.
§ 1003.1(d)(3)(iv) (“If further factfinding is needed in a particular case, the [BIA]
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may remand the proceeding . . . .” (emphasis added)). We therefore reject Estrada-
Ortega’s argument that the BIA failed to follow its precedent in In re S-H- by not
remanding for the IJ to make further predictive factual findings.
Estrada-Ortega also argues that the BIA violated its regulations by finding
facts. Specifically, he maintains that the BIA “did no analysis of the IJ’s factual
findings of non[]financial harm because the IJ made no such findings.” Aplt. Br. 20.
And, he continues, without such findings from the IJ, the BIA must have made its
own findings when it “recognized” the emotional effect Estrada-Ortega’s removal
would have on his children and “acknowledged” the effect it would have on his
daughter’s education. Rep. Br. 12-13. To be sure, the BIA’s regulations generally
prohibit it from making additional factfinding on appeal. See § 1003.1(d)(3)(i), (iv).
R. vol. 1, 28. But the BIA accepted the characterization of the hardships as
“described by” Estrada-Ortega. R. vol. 1, 4. Nevertheless, the BIA explained, even
those hardships do not meet the “exceptional[-]and[-]extremely[-]unusual standard
for cancellation of removal, despite the significance of these issues to the family.”
Id.; see In re Monreal-Aguinaga, 23 I. & N. Dec. at 65; In re Andazola-Rivas, 23 I. &
N. Dec. at 323. And Estrada-Ortega does not point to any law that prohibits the BIA
from concluding that he failed, as a matter of law, to demonstrate the requisite
hardship even assuming the facts as “described by” him. R. vol. 1, 4. Accordingly,
we reject Estrada-Ortega’s argument that the BIA abused its discretion by
committing legal error.
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Finally, Estrada-Ortega suggests that the BIA violated his due-process rights
by making its own factual findings and failing to remand his case for additional
factfinding. Noncitizens in removal proceedings are entitled to “minimal procedural
due process rights for an ‘opportunity to be heard at a meaningful time and in a
meaningful manner.’” Arambula-Medina v. Holder, 572 F.3d 824, 828 (10th Cir.
2009) (quoting de la Llana-Castellon v. I.N.S., 16 F.3d 1093, 1096 (10th Cir. 1994)).
But Estrada-Ortega had such an opportunity on the facts of this case because, as
explained above, the BIA followed its regulations and caselaw. And if Estrada-
Ortega is instead arguing that the BIA and the IJ should have done more factfinding
before making the hardship determination, we do not have jurisdiction over that
argument. Although, as noted above, we have jurisdiction over colorable
constitutional claims, a “quarrel about the level of detail required in the BIA’s
analysis” is not such a claim. Alzainati v. Holder, 568 F.3d 844, 851 (10th Cir. 2009).
Conclusion
Because we have jurisdiction to hear this appeal, we deny the government’s
motion to dismiss. But because the BIA did not abuse its discretion in denying
Estrada-Ortega’s request to remand, we affirm its decision.

Entered for the Court

Nancy L. Moritz
Circuit Judge
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