Tonya Huber v. Westar Foods, Inc.

United States Court of Appeals
For the Eighth Circuit
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No. 24-1733
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Rony Alfredo Soto Santos
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: April 18, 2025
Filed: May 12, 2025
[Published]
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Before ERICKSON, ARNOLD, and STRAS, Circuit Judges.
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PER CURIAM.
After the Department of Homeland Security initiated removal proceedings
against Rony Soto-Santos, a native and citizen of Guatemala, because he was
present in the United States without being admitted or paroled, see 8 U.S.C.
§ 1182(a)(6)(A)(i), Soto-Santos conceded removability and unsuccessfully sought
asylum, withholding of removal, and relief under the Convention Against Torture.
While his case was on appeal to the BIA, Soto-Santos’s girlfriend gave birth to a

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daughter who enjoyed United States citizenship. He therefore moved the BIA to
remand so that he could apply for cancellation of removal, which was unavailable
to him until he had a United States citizen child. See id. § 1229b(b)(1)(D). The
BIA, however, denied the motion, reasoning that Soto-Santos had not established
a prima facie case of eligibility for cancellation of removal. We agree, and we are
unmoved by Soto-Santos’s other objections to the BIA’s decision, so we deny
Soto-Santos’s petition for review.
Because Soto-Santos requested “additional proceedings in which to present
newly available evidence,” see Chacon-Ruiz v. Garland, 124 F.4th 541, 543 (8th
Cir. 2024) (per curiam), and pursue new relief based on that evidence, we, like the
BIA, construe his motion to remand as a motion to reopen proceedings. That
means that the BIA could deny the motion if Soto-Santos failed to make out “a
prima facie case for the underlying substantive relief sought.” See Njie v. Lynch,
808 F.3d 380, 384 (8th Cir. 2015).
And we discern no error in the BIA’s decision to do so here. The birth of
Soto-Santos’s United States citizen daughter satisfied one precondition to
cancellation of his removal. See 8 U.S.C. § 1229b(b)(1)(D). But another
precondition was proof that his removal “would result in exceptional and
extremely unusual hardship” to his daughter, see id., and he did not present any
evidence of that. Before the BIA, Soto-Santos was silent about the hardship his
removal would cause to his daughter, and so the BIA had no basis to conclude that
Soto-Santos could present evidence of hardship sufficient to support cancellation
of his removal. It permissibly denied Soto-Santos’s motion for that reason. See
Chacon-Ruiz, 124 F.4th at 543; Partap v. Holder, 603 F.3d 1173, 1175 (9th Cir.
2010) (per curiam).
We are, in addition, unconvinced that the BIA tainted that decision by
engaging in improper fact-finding. See 8 C.F.R. § 1003.1(d)(3)(iv); cf. Vargas v.
Holder, 567 F.3d 387, 389 n.4 (8th Cir. 2009). Missing from Soto-Santos’s
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argument that such fact-finding occurred is any identification of the facts the BIA
wrongly found. And, for that matter, we have identified no such facts ourselves.
To the extent that Soto-Santos contends, lastly, that the Department of
Homeland Security should not be pursuing his removal because he is not an
enforcement priority under agency policies, he is making his argument to the
wrong branch of government. We generally cannot overturn the Department of
Homeland Security’s discretionary decision to seek an alien’s removal. See Islas-
Saldana v. Garland, 59 F.4th 927, 931 (8th Cir. 2023); S-Cheng v. Ashcroft, 380
F.3d 320, 324 (8th Cir. 2004). If there is an exception to this rule that applies to
Soto-Santos, he has not pointed it out to us. As far as this matter concerns us, there
is no error to correct.
Petition denied.
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