Jose Antonio Guzman Herrera v. MERRICK B. GARLAND, Attorney General

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0224n.06
No. 22-3985
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSE ANTONIO GUZMAN HERRERA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
)
)
)
)
)
)
)
)
)
ON PETITION FOR REVIEW OF
AN ORDER OF THE BOARD OF
IMMIGRATION APPEALS
OPINION
Before: MOORE, McKEAGUE, and MATHIS, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Petitioner Jose Antonio Guzman Herrera
seeks review of a final order from the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) decision denying his application for cancellation of removal. Guzman
Herrera argues that the BIA erroneously determined that he had not established that his removal
would result in exceptional and extremely unusual hardship to his U.S. citizen children. For the
reasons that follow, we DENY the petition for review.
I. BACKGROUND
Guzman Herrera is a native and citizen of Mexico. Administrative Record (A.R.) at 257
(Appl. for Cancellation of Removal at 3). Guzman Herrera first entered the United States in
February 1998, when he was fifteen years old, by crossing the U.S.-Mexico border
without inspection. A.R. at 259 (Appl. for Cancellation of Removal at 5). In July 2001, he
departed the United States after receiving a grant of voluntary departure. Id. Guzman Herrera
returned to the United States later that month, again by crossing the border without inspection. Id.

-- 1 of 8 --

No. 22-3985, Guzman Herrera v. Garland
2
After reentering the United States, Guzman Herrera married a Mexican citizen and had four
children, all U.S. citizens, born in 2004, 2005, 2009, and 2013. A.R. at 257, 259, 261–62 (Appl.
for Cancellation of Removal at 3, 5, 7–8). In 2017, Guzman Herrera and his wife divorced. A.R.
at 227–35 (Divorce J. at 1–9). Guzman Herrera and his ex-wife have joint legal custody of their
children, who spend equal time at each parent’s home. A.R. at 228, 230 (Divorce J. at 2, 4); A.R.
at 93 (Hr’g Tr. at 20). Guzman Herrera has been continuously employed as a supervisor at the
same workplace since April 2002. A.R. at 260 (Appl. for Cancellation of Removal at 6).
In May 2016, the Department of Homeland Security (“DHS”) issued a Notice to Appear
(“NTA”), placing Guzman Herrera in removal proceedings based on his presence in the United
States without having been admitted or paroled, in violation of § 212(a)(6)(A)(i) of the
Immigration and Nationality Act (“INA”). A.R. at 341 (NTA at 1); see also 8 U.S.C.
§ 1182(a)(6)(A)(i). Guzman Herrera conceded removability and applied for cancellation of
removal and voluntary departure. A.R. at 80 (Hr’g Tr. at 7); A.R. at 257 (Appl. for Cancellation
of Removal at 3); A.R. at 105 (Hr’g Tr. at 32).
At the merits hearing on his applications, Guzman Herrera testified that he has a good
relationship with his children and tries to spend time with them and support them, especially in
their education and extracurricular activities. A.R. at 98–100 (Hr’g Tr. at 25–27). He testified
that his children feel unsupported by their mother and that his two eldest sons expressed discomfort
at their living situation at their mother’s home, because her boyfriend also lives with them. A.R.
at 100–102 (Hr’g Tr. at 27–29). He also testified that “sometimes [his ex-wife] doesn’t send” the
children to school. A.R. at 109 (Hr’g Tr. at 36). His two eldest sons and his daughter see
psychologists, which Guzman Herrera testified that the children’s mother views as “stupidity.”

-- 2 of 8 --

No. 22-3985, Guzman Herrera v. Garland
3
A.R. at 102–03 (Hr’g Tr. at 29–30). His two eldest sons both have depression and anxiety. A.R.
at 103–04 (Hr’g Tr. at 30–31). Guzman Herrera testified that if he were to be removed to Mexico,
his children’s mother would not allow the children to go with him. A.R. at 104 (Hr’g Tr. at 31).
He was unsure whether she would even allow the children to visit him “because she does not want
to have a good relationship with me for the good of the children.” Id. He expressed concern that
his children would suffer financially due to the loss of child-support payments as well as
emotionally due to the loss of his support. A.R. at 105 (Hr’g Tr. at 32).
Guzman Herrera’s eldest son, Jose Antonio Jr., also testified. A.R. at 138 (Hr’g Tr. at 65).
He described Guzman Herrera as a caring and supportive father who is very involved in his
children’s lives and cares about their education. A.R. at 145 (Hr’g Tr. at 72). Jose Antonio Jr.
testified that his mother’s boyfriend was “a big problem” because he “doesn’t pay attention” to
Guzman Herrera’s four children and is solely interested in the child that he shares with Jose
Antonio Jr.’s mother. A.R. at 147 (Hr’g Tr. at 74). Jose Antonio Jr. expressed that he and his
siblings don’t “get along too much” with their mother because “she doesn’t support” them. Id. He
also affirmed that they miss school sometimes while staying with their mother, which does not
happen when they stay with Guzman Herrera. A.R. at 149 (Hr’g Tr. at 76). He “always [has] a
good time” staying with Guzman Herrera and has no issues with him. A.R. at 148 (Hr’g Tr. at
75). Jose Antonio Jr. felt that his depression was caused by the possibility of his father having to
return to Mexico and testified that “[i]t would affect me a lot” because Guzman Herrera has “been
the one that is there for us.” Id. His depression has impacted his ability to sleep because he is
unable to stop thinking about his father being removed. A.R. at 154 (Hr’g Tr. at 81). Jose Antonio
Jr. testified that his mother would not let him or his siblings go to Mexico to visit their father. Id.

-- 3 of 8 --

No. 22-3985, Guzman Herrera v. Garland
4
at 150 (Hr’g Tr. at 77). He said that sometimes one of his brothers “just cries” because he is
“thinking about what if dad goes back to his country.” A.R. at 152 (Hr’g Tr. at 79).
The parties agreed to proffer testimony from Guzman Herrera’s second eldest son, which
would be consistent with Jose Antonio Jr.’s testimony. A.R. at 167–68 (Hr’g Tr. at 94–95). The
parties also agreed on proffers of testimony from Guzman Herrera’s friends and coworkers, who
would testify that Guzman Herrera was a good and honest person and a hard worker, and that he
cares deeply about his family. A.R. at 169–71 (Hr’g Tr. at 96–98).
The IJ denied Guzman Herrera’s applications for cancellation of removal and voluntary
departure and ordered him removed to Mexico. A.R. at 48 (IJ Order). In denying his application
for cancellation of removal, the IJ found that Guzman Herrera did not possess the requisite good
moral character for relief and had not demonstrated exceptional and extremely unusual hardship
to his U.S. citizen children if he were to be removed from the United States. A.R. at 55–60 (IJ
Oral Decision at 3–8). Guzman Herrera appealed the IJ’s decision to the BIA. A.R. at 43 (Notice
of Appeal at 1). The BIA dismissed Guzman Herrera’s appeal, affirming the IJ’s decision on the
hardship issue alone.1 A.R. at 3 (BIA Op. at 1). The BIA held that:
While the respondent’s children will undoubtedly suffer some financial and
emotional hardship upon the respondent’s removal, we agree with the Immigration
Judge’s determination that the record does not reflect that these hardships will be
so unusual or severe when compared with those experienced by other, similarly
situated, individuals that they may fairly be characterized as “exceptional and
extremely unusual” in the sense intended by Congress.
A.R. at 4 (BIA Op. at 2). Guzman Herrera filed a timely petition for review in this court.
1The BIA did not discuss the moral character issue, concluding simply that “[w]e agree with the Immigration
Judge’s decision denying the respondent’s application for cancellation of removal, even if he established the requisite
good moral character.” A.R. at 3 (BIA Op. at 1) (emphasis added). Because the BIA did not address the moral
character issue, it is beyond the scope of this court’s review, and we therefore do not address it.

-- 4 of 8 --

No. 22-3985, Guzman Herrera v. Garland
5
II. ANALYSIS
In order to be eligible for cancellation of removal, an applicant must meet four
requirements:
The Attorney General may cancel removal of, and adjust to the status of an alien
lawfully admitted for permanent residence, an alien who is inadmissible or
deportable from the United States if the alien--
(A) has been physically present in the United States for a continuous period of not
less than 10 years immediately preceding the date of such application;
(B) has been a person of good moral character during such period;
(C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or
1227(a)(3) of this title, subject to paragraph (5); and
(D) establishes that removal would result in exceptional and extremely unusual
hardship to the alien’s spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.
8 U.S.C. § 1229b(b)(1). “[W]e review the BIA’s decision as the final agency determination.”
Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). To the extent that the BIA adopted the IJ’s
reasoning, we also review the IJ’s decision. Id.
There are jurisdictional limits on the scope of our review of the denial of cancellation of
removal. Singh v. Rosen, 984 F.3d 1142, 1149 (6th Cir. 2021). To the extent that Guzman Herrera
challenges the BIA’s factual findings as erroneous, we lack jurisdiction to review his claim. Id.
We may, however, review the BIA’s ultimate conclusion regarding whether the established facts
establish exceptional and extremely unusual hardship to Guzman Herrera’s qualifying relatives.
Id. at 1154. We have previously declined to decide which standard of review applies to our review
of this question, instead musing that either the clear-error standard or the substantial-evidence test

-- 5 of 8 --

No. 22-3985, Guzman Herrera v. Garland
6
might be appropriate. Id. We again decline to decide that question, because Guzman Herrera’s
claim fails regardless of which standard we apply.
Guzman Herrera does not dispute the BIA’s standard for hardship, which requires an
applicant to “provide evidence of harm to his spouse, parent, or child substantially beyond that
which ordinarily would be expected to result from the alien’s deportation.” Araujo-Padilla v.
Garland, 854 F. App’x 646, 649 (6th Cir. 2021) (quoting In re Monreal-Aguinaga, 23 I. & N. Dec.
56, 59 (BIA 2001)). In analyzing the hardship requirement, the BIA must “consider all of the
circumstances, including the ‘ages, health, and circumstances’ of qualifying relatives.” Singh, 984
F.3d at 1154 (quoting Monreal-Aguinaga, 23 I. & N. Dec. at 63). “[A]ll hardship factors should
be considered in the aggregate.” Monreal-Aguinaga, 23 I. & N. Dec. at 64.
First, Guzman Herrera argues that the IJ erroneously determined that the report of a
licensed social worker, Phillip Nienhuis, discussing the eldest children’s depression and anxiety
was “totally without merit.” Pet’r Br. at 9. The IJ, however, simply pointed out that (1) Nienhuis
was not qualified to diagnose the children with depression and anxiety and provided no indication
of the origins of their diagnosis; and (2) that the report overstated the impact of Guzman Herrera’s
removal on the children because it assumed a total loss of contact with Guzman Herrera and failed
to account for the possibility of “electronic or telephonic contact.” A.R. at 58–59 (IJ Oral Decision
at 6–7). We lack jurisdiction to review these findings of fact. Singh, 984 F.3d at 1149.
Next, Guzman Herrera argues that the IJ “completely disregarded” the testimony of
Guzman Herrera and Jose Antonio Jr. regarding the impact of Guzman Herrera’s removal on the
children. Pet’r Br. at 10. The IJ, however, mentioned both Guzman Herrera’s and Jose Antonio
Jr.’s testimony and considered it in conjunction with Nienhuis’s report, because all of those pieces

-- 6 of 8 --

No. 22-3985, Guzman Herrera v. Garland
7
of evidence were directed at the emotional hardship that the children would suffer. A.R. at 57 (IJ
Oral Decision at 6). There is nothing to suggest that the IJ did not consider their testimony.
Guzman Herrera also argues that “the financial impact [of his removal] was ignored and
downplayed.” Pet’r Br. at 10. Both the IJ and the BIA, however, acknowledged that there may be
some degree of loss of financial support if Guzman Herrera is removed to Mexico. A.R. at 57 (IJ
Oral Decision at 6); A.R. at 4 (BIA Op. at 2). To the extent that Guzman Herrera challenges the
IJ’s factfinding as to financial hardship, we lack jurisdiction to review his argument. Singh, 984
F.3d at 1149.
Finally, Guzman Herrera argues that the IJ and the BIA applied the incorrect legal standard
by failing to consider the hardship factors cumulatively. Pet’r Br. at 11. The IJ’s decision,
however, indicated that the factors must be considered in the aggregate, and there is nothing to
suggest that the IJ did not do so. A.R. at 57 (IJ Oral Decision at 6). The IJ therefore applied the
correct standard in making the hardship determination. And the fact that the IJ mentioned Guzman
Herrera and Jose Antonio Jr.’s testimony in the discussion of Nienhuis’s report suggests that the
IJ did in fact weigh the evidence of hardship in the aggregate. Id. The language of the BIA’s
opinion also suggests that it considered the factors cumulatively. A.R. at 4 (BIA Op. at 2) (“While
the respondent’s children will undoubtedly suffer some financial and emotional hardship upon the
respondent’s removal, . . . the record does not reflect that these hardships will be so unusual or
severe.” (emphasis added)). The BIA therefore also applied the correct legal standard.
Guzman Herrera’s brief fails to cite to even a single case in which either this court or the
BIA has found exceptional and extremely unusual hardship when faced with similar facts. We
have, however, previously upheld the BIA’s denial of cancellation of removal on the hardship

-- 7 of 8 --

No. 22-3985, Guzman Herrera v. Garland
8
requirement in similar factual circumstances. See Araujo-Padilla, 854 F. App’x at 650–51
(holding that the hardship requirement was not met although petitioner’s removal would result in
loss of financial support and diminished educational opportunities for his children and petitioner’s
daughter showed “signs of depression due to his impending removal”). We therefore cannot set
aside the IJ’s decision that Guzman Herrera is ineligible for cancellation of removal.
III. CONCLUSION
For the foregoing reasons, we DENY the petition for review.

-- 8 of 8 --