Case: 23-60100 Document: 57-1 Page: 1 Date Filed: 12/18/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
No. 23-60100
FILED
December 18, 2024
____________
Lyle W. Cayce
Vicente David Cuenca-Arroyo, Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the Board of Immigration Appeals
Agency No. A212 946 953
______________________________
Before Elrod, Chief Judge, and Smith and Graves, Circuit Judges.
Per Curiam:
Vicente David Cuenca-Arroyo seeks review of three Board of
Immigration Appeals determinations: one affirming denial of his application
for cancellation of removal, another affirming denial of his application for
voluntary departure, and a third affirming denial of a motion for continuance
he sought in the underlying proceedings. Because we agree with the BIA’s
cancellation-of-removal decision, do not have jurisdiction to review its
voluntary-departure decision, and determine that the BIA did not abuse its
discretion in affirming the immigration judge’s continuance decision,
Cuenca-Arroyo’s petition is DENIED in part and DISMISSED in part.
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I
Cuenca-Arroyo is a native and citizen of Mexico. His family brought
him to the United States when he was eight years old, but he was neither
admitted nor paroled upon entry.
Cuenca-Arroyo has a minor son, B.A., who is a United States citizen.
While B.A. primarily resides with his mother, he spends weekends with
Cuenca-Arroyo, who also regularly visits him during the week and assists
with tasks like B.A.’s homework.
In 2017, the Department of Homeland Security initiated removal
proceedings against Cuenca-Arroyo, charging him as inadmissible under 8
U.S.C. § 1182(a)(6)(A)(i). Cuenca-Arroyo conceded the charge to an
immigration judge, who, in turn, found him removable.
Seeking relief from that finding, Cuenca-Arroyo applied for
cancellation of removal under 8 U.S.C. § 1229b(b)(1) (“exceptional and
extremely unusual hardship” to qualifying relatives) and, in the alternative,
post-conclusion voluntary departure under 8 U.S.C. § 1229c(b) (reserved for
individuals “of good moral character”).
Before his merits hearing, Cuenca-Arroyo moved for a continuance.
He informed the immigration judge (by handing up a smartphone with a
screenshot of a receipt notice) that his parents had begun the process of
adjusting their immigration status such that they would become legal
permanent residents. If approved, Cuenca-Arroyo would be able to claim
them as additional qualifying relatives for his cancellation-of-removal
application. See 8 U.S.C. § 1229b(b)(1)(D). The immigration judge denied
the motion, finding that Cuenca-Arroyo had not presented enough
information to justify a continuance, and ultimately denied both applications
for relief.
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Cuenca-Arroyo appealed these decisions to the BIA, which affirmed
all three. First, it “agree[d] with the Immigration Judge that good cause was
not established” for Cuenca-Arroyo’s continuance. Second, it affirmed the
immigration judge’s cancellation-of-removal determination because the
types of hardships to his son that Cuenca-Arroyo demonstrated “would be
common and normal” and not “exceptional and extremely unusual.” And
third, it agreed with the immigration judge that Cuenca-Arroyo did not show
“that he merits voluntary departure as a matter of discretion” based on the
equities. The BIA accordingly dismissed Cuenca-Arroyo’s appeal.
II
“Congress has sharply circumscribed judicial review of the
discretionary-relief process” for immigration cases like Cuenca-Arroyo’s.
Patel v. Garland, 596 U.S. 328, 332, 336–37 (2022). We may not review “any
judgment regarding the granting of relief” under, inter alia, 8 U.S.C. § 1229b
or § 1229c.
8 U.S.C. § 1252(a)(2)(B)(i). This prohibition “encompasses not
just ‘the granting of relief’ but also any judgment relating to the granting of
relief.” Patel,
596 U.S. at 339 (quoting § 1252(a)(2)(B)(i)). “That plainly
includes factual findings.” Id.
Even so, 8 U.S.C. § 1252(a)(2)(D) restores our jurisdiction to review
“constitutional claims or questions of law” that § 1252(a)(2)(B)(i) would
otherwise foreclose. Wilkinson v. Garland,
601 U.S. 209, 218 (2024) (quoting
§ 1252(a)(2)(D)). This exception encompasses not just pure questions of law
but also “[m]ixed questions of law and fact, even when they are primarily
factual.” Id. at 225.
For determinations that fall within our appellate jurisdiction, we
“review only the BIA’s decision, ‘unless the [immigration judge]’s decision
ha[d] some impact on the BIA’s decision.’” Orellana-Monson v. Holder, 685
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F.3d 511, 517 (5th Cir. 2012) (quoting Wang v. Holder,
569 F.3d 531, 536 (5th
Cir. 2009)).
Here, Cuenca-Arroyo reasserts the three arguments that he made
before the BIA. We address his two substantive claims, which concern his
applications for cancellation of removal and voluntary departure, before
considering his procedural argument.
A
First, Cuenca-Arroyo’s cancellation-of-removal argument. In
Wilkinson, the Supreme Court clarified that § 1229b(b)(1)(D)’s “exceptional
and extremely unusual hardship” standard is a mixed question of law and fact
subject to our review under § 1252(a)(2)(D). 601 U.S. at 222–25. Such
“review is deferential” because the “mixed question is primarily factual.”
Id. at 225. 1
Cuenca-Arroyo challenges the BIA’s determination that he failed to
establish the “exceptional and extremely unusual hardship” required for
cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D). He asserts that his
removal would cause his son, a qualifying relative under that statute,
exceptional hardship due to their close relationship, his active involvement
in his son’s upbringing, circumstances surrounding his son’s physical health,
_____________________
1
Wilkinson instructs that our review of such mixed questions must be “more
deferential” than our review of pure questions of law. 601 U.S. at 222. But it did not
otherwise “specify the proper standard of review for this hardship determination.” Netro
Gonzalez v. Garland, No. 23-60139,
2024 WL 4371177, at *2 (5th Cir. Oct. 2, 2024) (citing
Wilkinson,
601 U.S. at 225); accord Santibanez-Sanchez v. Garland, No. 21-60958,
2024 WL
4471737, at *2 (5th Cir. Oct. 11, 2024) (calling it an “open question”). We need not
determine exactly what degree of deference we owe, though, because we agree with the
BIA’s determination even without it. See Netro Gonzalez,
2024 WL 4371177, at *2–3; see
also Santibanez-Sanchez,
2024 WL 4471737, at *2 (declining to “name a particular
standard” and collecting cases applying “a more general deferential perspective”).
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and the potential psychological impact of separation. Cuenca-Arroyo
emphasizes that he shares custody with his son’s mother and that he is
significantly involved in his son’s life, especially as a provider of emotional
and financial support.
The BIA affirmed the immigration judge’s determination that
Cuenca-Arroyo failed to demonstrate the requisite hardship. It noted that
B.A. resides primarily with his mother, who would continue to provide care
and support. While acknowledging Cuenca-Arroyo’s involvement, the BIA
concluded that the hardships presented, including emotional and financial
difficulties, were common consequences of removal and did not rise to the
statutory standard. The BIA also considered that Cuenca-Arroyo did not
provide evidence of any current medical issues requiring special care for his
son.
Even without deference, we agree with the BIA’s determination that
Cuenca-Arroyo has not demonstrated sufficient hardship. See Netro
Gonzalez v. Garland, No. 23-60139, 2024 WL 4371177, at *3 (5th Cir. Oct. 2,
2024). As unfortunate as the emotional, psychological, medical, and
financial hardships that Cuenca-Arroyo identifies may be, they are also, as
the BIA correctly noted, “common and normal” consequences of an
ordinary removal. Cuenca-Arroyo has not demonstrated that his removal
would effect any hardship “substantially different from or beyond that which
would ordinarily be expected from the deportation of a close family
member.”
Id. (quoting Wilkinson,
601 U.S. at 222). Accordingly, we deny
the petition regarding the BIA’s cancellation-of-removal determination. See
id.
B
Next, we turn to Cuenca-Arroyo’s voluntary-departure argument.
We generally lack jurisdiction to review the BIA’s discretionary decisions
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regarding voluntary departure. Carreon v. Garland, 71 F.4th 247, 256 (5th
Cir. 2023) (citing Patel,
596 U.S. at 338); see Wilkinson,
601 U.S. at 222
(“Under Patel, of course, a court is still without jurisdiction to review a
factual question raised in an application for discretionary relief.”).
Cuenca-Arroyo challenges the BIA’s denial of his request for voluntary
departure under 8 U.S.C. § 1229c(b), arguing that it improperly relied on
allegations of “tax fraud” without sufficient legal basis.2 Recognizing that
we do not have jurisdiction to review the BIA’s exercise of its discretion, he
contends that the BIA erred by characterizing discrepancies in his tax filings
as “tax fraud” without proper legal analysis or citation to relevant authority.
Upon review, we find that the BIA’s reference to “tax fraud” was not
a legal conclusion that Cuenca-Arroyo committed the criminal offense of tax
fraud under federal law. That is, the BIA did not draw this conclusion after
application of some legal principle found in a tax statute or otherwise. Rather,
it simply used the phrase as shorthand to describe Cuenca-Arroyo’s
misrepresentations on tax filings, such as claiming a dependent nephew
residing in Mexico who did not qualify under U.S. tax law and reporting farm
income and losses without actually owning or operating a farm. These
misrepresentations reflect adversely on his credibility and character, which
are relevant factors in the discretionary analysis for voluntary departure. See
In re Gamboa, 14 I&N Dec. 244, 248 (BIA 1972). Indeed, the BIA cited the
Gamboa case in this section of its analysis. And while it did use the phrase
“tax fraud,” it used that phrase only once. In other parts of this same
discussion, the opinion uses the phrases “tax issues” and “tax returns.” The
_____________________
2
Though initially framed as an appeal of the BIA’s decision, the body of Cuenca-Arroyo’s argument levies its attack against the immigration judge’s decision. But as we
noted above, when “the BIA issue[s] its own opinion and elaborate[s] on its own reasoning
. . . this court must review the BIA’s decision.” Orellana-Monson, 685 F.3d at 517.
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use of these varied phrases suggests that the BIA was considering
Cuenca-Arroyo’s character and honesty more broadly rather than specific
violations of particular provisions of the tax code.
While perhaps imprecise, the BIA’s characterization of Cuenca-Arroyo’s misrepresentations as “tax fraud” does not constitute a legal error
affecting the validity of its decision. Instead, it is a summarization of the
BIA’s factual findings, which we do not have jurisdiction to review. Patel,
596 U.S. at 339; Wilkinson,
601 U.S. at 222. Cuenca-Arroyo has therefore
failed to demonstrate that the BIA committed reviewable error in its denial
of voluntary departure. Carreon,
71 F.4th at 254 & n.6.
C
Last, Cuenca-Arroyo argues that the BIA erred by affirming the denial
of his motion for a continuance, which he claims prevented him from
including his parents as additional qualifying relatives for cancellation of
removal. We have not addressed our jurisdiction to review continuance
determinations after Patel and Wilkinson. 3 But we need not determine today
whether § 1252(a)(2)(B)(i) forecloses our jurisdiction over such decisions (or
whether § 1252(a)(2)(D) restores it) because we would not grant the relief
Cuenca-Arroyo seeks even if we were able to.
On the occasions that we have reviewed BIA continuance
determinations, we have reviewed them for an abuse of discretion. E.g.,
_____________________
3
It appears that, at least after Patel, three of our sister circuits have. Compare
Figueroa Ochoa v. Garland, 91 F.4th 1289, 1293–95 (9th Cir. 2024) (concluding that
§ 1252(a)(2)(B)(i) “applies to factual judgments made in the course of ruling on procedural
motions” like continuance determinations), with Agard v. Garland,
2024 WL 1433337, at
*1–2 (2d Cir. Apr. 3, 2024) (disagreeing because Patel “did not directly address decisions
made prior to ‘the granting or denying of discretionary relief’” (quoting Patel,
596 U.S. at
337)), and Alkotof v. U.S. Att’y Gen.,
106 F.4th 1289, 1299 (11th Cir. 2024) (following prePatel Eleventh Circuit caselaw).
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Delgado-Victorio v. Garland, 88 F.4th 630, 632 (5th Cir. 2023); Ali v.
Gonzales,
440 F.3d 678, 680 (5th Cir. 2006). That standard is “highly
deferential.” Manzano-Garcia v. Gonzales,
413 F.3d 462, 469 (5th Cir. 2005).
Indeed, we have said that a discretionary decision “is not to be disturbed ‘so
long as it is not capricious, racially invidious, utterly without foundation in
the evidence, or otherwise so aberrational that it is arbitrary rather than the
result of any perceptible rational approach.’”
Id. (quoting Pritchett v. INS,
993 F.2d 80, 83 (5th Cir. 1993)). Cuenca-Arroyo’s mere disagreement with
the BIA’s determination does not rise to this level. The BIA, at the very least,
utilized a “perceptibl[y] rational approach” in weighing the In re L-A-B-R-,
27 I&N Dec. 405 (AG 2018), factors. See Delgado-Victorio,
88 F.4th at 632.
Thus, we cannot say that the BIA abused its discretion in affirming the
immigration judge’s denial of Cuenca-Arroyo’s motion for a continuance.
III
We uphold the BIA’s determination that Cuenca-Arroyo is not
eligible for cancellation of removal, we conclude that we do not have
jurisdiction to review its voluntary-departure denial, and we conclude that it
did not abuse its discretion in affirming the immigration judge’s continuance
denial. Accordingly, Cuenca-Arroyo’s petition for review is DISMISSED
in part and DENIED in part.
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Jennifer Walker Elrod, Chief Judge, concurring:
The per curiam opinion follows a long line of cases in which we have
reviewed the BIA’s continuance determinations for an abuse of discretion.
Ante at 7–8. I write separately to explain why, if we were writing on a blank
slate, 1 I would conclude that we do not have jurisdiction to review such
decisions.
I
8 U.S.C. § 1252(a)(2)(B)(i) precludes our “jurisdiction to review”
“any judgment regarding the granting of relief under,” among other
provisions, 8 U.S.C. § 1229b. I would conclude that Patel’s “expansive”
reading of § 1252(a)(2)(B)(i) bars our jurisdiction to review continuance
determinations like Cuenca-Arroyo’s. See Patel v. Garland,
596 U.S. 328, 338
_____________________
1
I agree with the panel opinion’s decision to exercise jurisdiction out of an
abundance of deference to our Rule of Orderliness. But our caselaw is not so clear. Our
published cases indicating that we do have jurisdiction to review continuance
determinations can all be sorted into two buckets: cases that did not trigger
§ 1252(a)(2)(B)(i)’s jurisdictional bar and cases that did not evaluate whether we had
jurisdiction. In the first, § 1252(a)(2)(B)(i)’s jurisdictional bar simply did not apply
because the continuance determination did not implicate any of the five statutes for which
Congress has divested us of jurisdiction. See, e.g., Manzano-Garcia v. Gonzales, 413 F.3d
462, 467 (5th Cir. 2005) (relating to § 1182(a)(6)(A)(i)); Witter v. INS,
113 F.3d 549, 552
n.4 (5th Cir. 1997) (relating to §§ 1182(a)(6)(C)(i), 1182(a)(6)(E)(i), 1252(a)(1)(G)(ii));
Zhao v. Gonzales,
404 F.3d 295, 299 (5th Cir. 2005) (relating to § 1182(a)(6)(C)(ii)); Ahmed
v. Gonzalez,
447 F.3d 433, 435 (5th Cir. 2006) (relating to § 1227(a)(1)(B)). And the other
cases simply did not consider whether exercising jurisdiction would have been proper in
the first place. See, e.g., Ramchandani v. Gonzales,
434 F.3d 337, 338–40 (5th Cir. 2005);
Ali v. Gonzales,
440 F.3d 678, 680 (5th Cir. 2006); Masih v. Mukasey,
536 F.3d 370, 373 (5th
Cir. 2008); Wu v. Holder,
571 F.3d 467, 468 (5th Cir. 2009); Hammerschmidt v. Garland,
54
F.4th 282, 290–91 (5th Cir. 2022); Delgado-Victorio v. Garland,
88 F.4th 630, 632 (5th Cir.
2023). The first set does not tell us whether we have jurisdiction to review a continuance
determination when it does relate to one of § 1252(a)(2)(B)(i)’s enumerated provisions.
And the second is no more helpful because the mere exercise of jurisdiction does not mean
that it was proper in the first place. See Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83,
91 (1998).
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(2022). Patel instructs that § 1252(a)(2)(B)(i) means what it says: its
“prohibition encompasses any and all decisions relating to the granting or
denying of discretionary relief” under its enumerated statutes. Id. at 337
(emphasis added) (internal quotation marks omitted). And I do not doubt
that a decision to continue a § 1229b proceeding “relat[es] to” that
proceeding. See id. at 339. Without a continuance, a petitioner might not be
able to present additional evidence or await the adjudication of collateral
applications that might affect his or her eligibility for relief. Cf. Perez v.
Garland, 67 F.4th 254, 257 (5th Cir. 2024) (reasoning, before Wilkinson, that
we “lack jurisdiction to review the BIA’s decision not to remand to the
[immigration judge] to consider new evidence”).
Patel emphasized that § 1252(a)(2)(B)(i) “does not restrict itself to
certain kinds of decisions” relating to § 1229b—it “applies to judgments of
whatever kind . . . not just discretionary judgments or the last-in-time
judgment.” 596 U.S. at 338–39 (internal quotation marks omitted). A
decision to deny a continuance in a § 1229b proceeding being a “judgment[]
of whatever kind” that relates to that provision, I would hold that we do not
have jurisdiction to review it.
II
I would also conclude that § 1252(a)(2)(D) does not restore our
jurisdiction to review these continuance determinations because they do not
involve the application of a legal standard that we could review. See
Wilkinson, 601 U.S. at 221–22, 225; Ogunfuye v. Holder, 610 F.3d 303, 307
(5th Cir. 2010). After the Supreme Court’s decision in INS v. St. Cyr,
533
U.S. 289 (2001), Congress enacted § 1252(a)(2)(D) to ensure our jurisdiction
over constitutional claims, questions of law, and “[m]ixed questions of law
and fact, even when they are primarily factual.” Wilkinson, 601 U.S. at
217–19 & n.3. But a mixed question still involves “the application of a legal
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standard to undisputed or established facts.” Guerrero-Lasprilla v. Barr, 589
U.S. 221, 227–28 (2020) (citing U.S. Bank Nat’l Ass’n ex rel. CWCapital
Asset Mgmt. LLC v. Vill. at Lakeridge, LLC,
583 U.S. 387, 395–96 (2018)); see
also Wilkinson,
601 U.S. at 217. That means that § 1252(a)(2)(D) restores
our jurisdiction to review immigration decisions only when there is a legal
standard to apply. See also Mejia v. Whitaker,
913 F.3d 482, 490 (5th Cir.
2019) (“[T]his court lacks jurisdiction to review the BIA’s discretionary
decision . . . because there is no legal standard against which to judge that
decision.” (internal quotation marks omitted)).
Immigration judges “may grant a continuance for good cause shown.”
8 C.F.R. § 1003.29. This good-cause standard does not provide a legal
standard with which we can review a decision as a mixed question of fact and
law. Compare Guerrero-Lasprilla, 589 U.S. 226–28 (2020) (whether
petitioners exercised due diligence provided a sufficiently legal standard),
and Wilkinson,
601 U.S. at 221 (“[T]he ‘exceptional and extremely unusual
hardship’ standard . . . is a legal standard that an [immigration judge] applies
to facts.”), with
id. at 225 n.4 (“[An immigration judge’s] step-two
discretionary determination on whether or not to grant cancellation of
removal . . . is not reviewable as a question of law.”), and Bouarfa v. Mayorkas,
No. 23-583, --- S. Ct. ---,
2024 WL 5048700, at *5 (U.S. Dec. 10, 2024)
(characterizing the “for what he deems to be good and sufficient cause”
standard under
8 U.S.C. § 1155 as placing “no condition” upon the exercise
of discretion).
Indeed, in Bouarfa, the statement that § 1155’s parallel
good-and-sufficient-cause standard did not implicate § 1252(a)(2)(D)
warranted no further explanation than a footnote that “[t]he parties agree”
with this conclusion. See Bouarfa, 2024 WL 5048700, at *3 n.2. I agree too.
Because we cannot review a good-cause determination for the application (or
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misapplication) of a legal standard, § 1252(a)(2)(D) does not permit us to
review the BIA’s continuance determinations.
…
With § 1252(a)(2)(B)(i), Congress stripped our jurisdiction to review
continuance determinations when those decisions pertain to one of its five
enumerated statutes. And it did not restore that jurisdiction with
§ 1252(a)(2)(D), at least when there is no discernable standard against which
we might compare the immigration judge’s exercise of his discretion.
Accordingly, if we were deciding the issue in the first instance, I would
conclude that we may not review Cuenca-Arroyo’s challenge to the denial of
his motion for a continuance.
12
