United States Court of Appeals
For the First Circuit
No. 19-1687
JOSE NOLBERTO TACURI-TACURI,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Thompson and Kayatta,
Circuit Judges.*
Casey L. Riley for petitioner.
Jennifer Mascott, United States Department of Justice, with
whom Joseph H. Hunt, Assistant Attorney General, Civil Division,
Stephen J. Flynn, Assistant Director, Office of Immigration
Litigation, and Annette M. Wietecha, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
were on brief, for respondent.
* Judge Torruella heard oral argument in this matter and
participated in the semble, but he did not participate in the
issuance of the panel's opinion in this case. The remaining two
panelists therefore issued the opinion pursuant to 28 U.S.C.
§ 46(d).
May 24, 2021
THOMPSON, Circuit Judge. In this immigration appeal, we
are tasked with examining whether the petitioner, Jose Nolberto
Tacuri-Tacuri (Tacuri), has established that the Board of
Immigration Appeals (BIA) erred in reversing an Immigration
Judge's (IJ) grant of his application for cancellation of removal.
For the reasons explained below, we deny Tacuri's petition in part
and otherwise dismiss it for lack of jurisdiction.
Background
Tacuri is a native of Ecuador who entered the United
States without inspection in 2001 to earn more money to help
support his parents and siblings. He has lived in Massachusetts
since 2003 with his wife, who also moved to the U.S. from Ecuador.
Tacuri and his wife have two minor children, one son (J.T.C.) and
one daughter (K.T.C.), both born in the U.S. Throughout his time
living in the U.S., Tacuri has worked primarily in construction
and roofing. He started his own business in this field around
2008.
Regrettably, Tacuri has had frequent contact with local
police throughout his residency in the U.S., including
approximately eighteen charges for driving with a suspended
license or driving under the influence. A social worker became
involved with Tacuri's family after his son began having some
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problems at school. Tacuri started attending a class or meetings
on a regular basis to address his use of alcohol.1
As a result of Tacuri's frequent contact with Milford,
Massachusetts police for motor vehicle violations, Immigration and
Customs Enforcement (ICE) initiated removal proceedings against
Tacuri in August 2018 by filing a Notice to Appear in the Boston
Immigration Court. He was detained from August 2018 to April 2020.
The Department of Homeland Security (DHS) charged Tacuri as
removable under the Immigration and Nationality Act (INA)
§ 212(a)(6)(A)(i) as an alien who had illegally entered the
country. Tacuri conceded the charge of removability and indicated
he would apply for relief from removal through asylum, withholding
of removal, cancellation of removal, and, in the alternative,
voluntary departure. During a hearing in December 2018, Tacuri
withdrew his application for asylum and withholding of removal,
leaving only his applications for cancellation of removal pursuant
to the INA § 240(A) (codified at 8 U.S.C. § 1229a) and voluntary
departure in the alternative. As we will discuss in depth soon,
an IJ can consider granting a nonpermanent resident's application
for cancellation of removal only when the IJ finds, among other
requirements, the applicant's removal would result in an
1The record does not indicate exactly what kind of course or
meetings Tacuri attended, only that they were related to his use
of alcohol.
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"exceptional and extremely unusual hardship" to a United States
relative. 8 U.S.C. § 1229b(b)(1)(D).
During the hearing, the IJ heard testimony from Tacuri
and his wife about their family relationship and the effect his
removal would have on their two young children. With respect to
their then five-year-old daughter, Tacuri's wife testified that
K.T.C. frequently cried and asked where her father was. As to
their then twelve-year-old son, J.T.C., Tacuri's wife explained
that he was "suffering" without his father, had become quiet,
wasn't eating much, and was afraid of what his friends would say
about his father's absence. A report submitted from a social
worker described J.T.C.'s noticeable decline in personal hygiene,
causing complaints about his body odor from school officials.
Although J.T.C.'s grades improved after his father was taken into
custody, his school guidance counselor expressed concern because
J.T.C. had stated he worked to improve his grades so he didn't
cause additional worry or stress to his mother.
J.T.C. has always been asthmatic, which has been a source
of concern for Tacuri and his wife. J.T.C. takes pills and uses
an inhaler every day, which costs about $75 every two weeks despite
having health insurance. Tacuri's wife stated J.T.C.'s asthma
worsened after his father's detainment. He started experiencing
chest pains and he felt less safe participating in his usual karate
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and soccer activities without his father around to help if he were
to faint.
Tacuri testified that his wife and two children would
remain in the United States if he were removed due to Ecuador's
lack of educational opportunities and medical resources necessary
to manage J.T.C.'s asthma. As Tacuri explained, he would be unable
to continue providing economic support to his family from Ecuador
because he would likely earn less than $10 per day, if he could
find employment at all. Tacuri's wife typically made about $350
per week working at the local grocery store but had been able to
earn $500 per week after her husband's detainment by working
additional hours. She expressed concern, however, that she would
be unable to make enough money to support her children without her
husband's assistance and income; at the time of the hearing she
was already borrowing money from family members.
After considering all of the testimony and documents
submitted to support Tacuri's application for cancellation of
removal, the IJ concluded Tacuri's removal to Ecuador would pose
an "exceptional and extremely unusual hardship" to both of Tacuri's
children, but especially to his son. The IJ focused on J.T.C.'s
asthma, deeming this medical condition "compelling." The IJ also
concluded that Tacuri's wife would face considerable financial
difficulty in paying for J.T.C.'s medical care without the
assistance of Tacuri's usual income, resulting in "exceptional and
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extremely unusual hardship" to J.T.C. The IJ decided Tacuri met
the other statutory requirements for cancellation of removal and
granted Tacuri's application for cancellation of removal.2 The IJ
did not reach the merits of Tacuri's alternative application for
voluntary departure.
Unsatisfied with the result, DHS appealed the IJ's
decision to the BIA. The BIA disagreed with the IJ's conclusion
that Tacuri had met the required "exceptional and extremely unusual
hardship" standard and sustained DHS's appeal. In a brief
decision, the BIA focused on J.T.C.'s academic record reflecting
strong grades, emphasized the IJ's finding that J.T.C.'s asthma
was "currently manageable and largely stable," and noted that
J.T.C. was active and played sports. Despite the IJ's finding
that Tacuri's family "could struggle to provide [J.T.C.] with his
required medicine," the BIA stated there was no indication J.T.C.
would be deprived of his medication, especially because the family
indicated Tacuri's wife and children would remain in the United
States and the family could retain health insurance. Further, the
2 The IJ concluded Tacuri had the requisite "good moral
character" to be eligible for cancellation of removal. Although
the IJ acknowledged Tacuri's "sometimes troubling relationship
with alcohol," the IJ looked positively upon the fact that Tacuri
met with his son's school social workers and proactively attended
an alcohol course, which he attended until his detention, to change
his behavior and "become a better father." Further, the IJ found
that Tacuri's numerous driving offenses in multiple jurisdictions
were explained by Tacuri's need to get to work despite not having
a license, which he eventually remedied by hiring a driver.
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BIA opined that there was no evidence J.T.C.'s asthma could not
continue to be managed if Tacuri is removed to Ecuador. Aside
from J.T.C.'s asthma, the BIA also found Tacuri had not
demonstrated that his children's mental health issues were
"exceptional and extremely unusual" for children separated from a
parent. Ultimately, the BIA concluded Tacuri had not "show[n]
that his return to Ecuador would have a material economic impact
on his children for cancellation of removal purposes" because his
wife was employed full time and Tacuri's construction skills were
transferrable to Ecuador. "[A] lowered standard of living and
reduced economic opportunities," the BIA reasoned, "generally are
insufficient" to support "a finding of exceptional and extremely
unusual hardship."
In addition, the BIA remanded Tacuri's alternative
application for voluntary departure to the IJ because the IJ had
not provided a ruling on this alternative relief when he granted
Tacuri's application for cancellation of removal.3 Before the IJ
issued a ruling about voluntary departure, Tacuri filed a petition
for review of the BIA's decision in this Court. The IJ
subsequently granted Tacuri's application for voluntary departure,
and this Court then granted his motion for a stay of removal
Because the BIA concluded Tacuri had not met his burden to
3
demonstrate "exceptional and extremely unusual hardship," it did
not examine whether Tacuri had met his burden of establishing he
had good moral character.
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pending our review of his case (legalese meaning Tacuri could
remain in the United States until we decide his case). The time
has come for us to do just that.
Discussion
Tacuri argues that the BIA applied the wrong legal
standard and ignored its own binding precedent when it overturned
the IJ's grant of his application for cancellation of removal.
The government counters that we lack the jurisdiction to review
Tacuri's challenges to the BIA's decision.
We begin with a quick primer about the relief Tacuri
requested. Cancellation of removal is one of the discretionary
forms of relief available to the Attorney General for nonpermanent
residents who have been deemed removable from the country when the
applicants can establish the following four requirements: (1)
they have been in the United States continuously for at least ten
years; (2) they are a person of "good moral character"; (3) they
have not been convicted of certain criminal offenses; and (4) --
the only part at issue here -- they can show that their removal
would result in "exceptional and extremely unusual hardship" to a
relative with permanent legal status in the United States. 8
U.S.C. § 1229b(b)(1); see also § 1229a(c)(4).
Before we get to the merits of this issue, however, we
have a jurisdictional hurdle to clear. Typically, this Court lacks
jurisdiction to review a BIA decision concerning this
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discretionary remedy of cancellation of removal. 8 U.S.C.
§ 1252(a)(2)(B)(i); Alvarado v. Holder, 743 F.3d 271, 275 (1st
Cir. 2014). We retain jurisdiction, however, over "constitutional
claims or questions of law." 8 U.S.C. § 1252(a)(2)(D); Alvarado,
743 F.3d at 275. If Tacuri's arguments present constitutional or
legal issues (and he argues they do), then we have jurisdiction
and we review those claims de novo. See Alvarado v. Whitaker, 914
F.3d 8, 12 (1st Cir. 2019).
In his petition for review of the BIA's decision, Tacuri
asserts the BIA both failed to identify and apply each of the
factors identified in its governing precedent and expected him to
meet a higher bar for the "exceptional and extremely unusual
hardship" standard than that set forth in other cases. While the
"choice and shape" of a legal standard is "quintessentially a
question of law," Ayeni v. Holder, 617 F.3d 67, 71 (1st Cir. 2010),
the presence of a constitutional or legal question is a "matter of
substance, not a function of labeling," Alvarado, 743 F.3d at 275.
To that end, styling a factual challenge as a constitutional or
legal error -- as the government asserts Tacuri is doing here --
does not "transform an unreviewable issue of fact into a reviewable
issue of law." Id.
As we have stated on more than one occasion, we usually
decline to review a determination of whether an applicant for
cancellation of removal has satisfied the hardship requirement
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because this is typically a purely factual inquiry. Id. (citing
Castro v. Holder, 727 F.3d 125, 128 (1st Cir. 2013)). Although
applying the wrong legal standard is indeed a legal issue, the
evidentiary weight involved in a hardship determination is not.
Id. (collecting cases where we have not had jurisdiction to review
challenges to alleged hardships to a petitioner's family). To be
sure, the BIA does not commit an error of law "each and every time
a piece of evidence is described with less than perfect accuracy."
Ayeni, 617 F.3d at 72 (holding there was no jurisdiction to
determine whether the BIA "neglected adequately to weigh the
seriousness of [petitioner's] eldest child's asthma").
As we mentioned above, Tacuri attempts to clear this
jurisdictional hurdle by presenting his claims as legal issues
this Court has jurisdiction to review and decide. He identifies
ways in which the BIA "cherry-pick[ed]" from the record to focus
only on some facts while ignoring other facts, resulting (he says)
in ultimately requiring him to show unconscionability to meet the
hardship standard. He also asserts that even though the BIA cited
three instrumental cases for the "exceptional and extremely
unusual hardship" standard, it did not discuss these precedents
nearly enough to justify reversing the IJ's decision.
The government responds that Tacuri merely disagrees
with how the BIA weighed the facts in his case. Disagreement with
how the BIA reached an unfavorable outcome, the government reasons,
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is not a legal or constitutional issue that falls within our
purview. And so the government urges us to dismiss Tacuri's
petition for review for lack of jurisdiction.
It is not obvious to us whether Tacuri's arguments go
only to his quibbling with the BIA's take on the facts of his case
(as the government contends) or to his assertion that the BIA erred
as a matter of law by applying a more demanding standard for Tacuri
to meet than that identified in the caselaw. Fortunately, we need
not decide because, as this Court has done before when statutory
jurisdiction is ambiguous but the merits are straightforward, we
bypass the jurisdictional issue and explain why the merits hold no
water. See Alvarado, 743 F.3d at 276 (citing Royal Siam Corp. v.
Chertoff, 484 F.3d 139, 144 (1st Cir. 2007)) (passing over a
jurisdictional claim to explain why precedent "clearly dictates"
the result on the merits). While federal courts typically cannot
apply "hypothetical jurisdiction" in terms of Article III
jurisdiction, we can sidestep statutory jurisdiction when, as
here, it makes sense to do so because the resolution on the merits
of the case is straightforward. Id. (collecting cases
demonstrating this Court has taken this path in similar immigration
cases). Without further ado, we therefore proceed to assess
Tacuri's arguments on the merits.
To prove an "exceptional and extremely unusual
hardship," an applicant must "establish that his qualifying
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relatives 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 here." In re
Monreal-Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001) (en banc)
(Matter of Monreal). An applicant need not show, however, that
such hardship would be "unconscionable." Id. at 60-61. In Matter
of Monreal, the BIA indicated immigration judges could work in the
space in between "hardship that is substantially beyond that which
would ordinarily be expected" and "unconscionability" by
considering "the ages, health, and circumstances of qualifying
lawful permanent resident and United States citizen relatives."
Id. at 63. The BIA identified "strong" circumstances to include
"an applicant who has elderly parents in this country who are
solely dependent upon him for support . . . [or who has] a
qualifying child with very serious health issues[] or compelling
special needs in school." Id. In addition, the BIA stated:
A lower standard of living or adverse country conditions
in the country of return are factors to consider only
insofar as they may affect a qualifying relative, but
generally will be insufficient in themselves to support
a finding of exceptional and extremely unusual hardship.
As with extreme hardship, all hardship factors should be
considered in the aggregate when assessing exceptional
and extremely unusual hardship.
Id. at 63-64.4
4 The BIA adopted these considerations from a more general
hardship standard it applied before Congress changed the
applicable standard from "extreme hardship" to "exceptional and
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The "exceptional and extremely unusual hardship"
standard "constitutes a high threshold that is in keeping with
Congress' intent to substantially narrow the class of aliens who
would qualify for relief." In re Gonzalez Recinas, 23 I. & N.
Dec. 467, 470 (BIA 2002) (approving cancellation of removal for
single mother of six children, four of whom are United States
citizens, with no remaining close relatives in Mexico). While an
applicant's child's poor health is a compelling factor, Matter of
Monreal, 23 I. & N. Dec. at 63, the applicant must further
establish that "the relative has a serious medical condition and,
if he or she is accompanying the applicant to the country of
removal, that adequate medical care for the claimed condition is
not reasonably available in that country," Matter of J-J-G-, 27
I. & N. Dec. 808, 811 (BIA 2020) (holding that applicant's
daughter's hypothyroidism may constitute a serious medical
condition but does not constitute an "exceptional and extremely
unusual hardship" because she could still receive medical care in
Guatemala). Overall, the BIA couches its standard for "exceptional
and extremely unusual hardship" in the qualifier that "reasonable
people can agree that the meaning of these terms . . . are not
terms of 'fixed and inflexible content or meaning.'" Matter of
extremely unusual hardship" in 1996. Alvarado, 743 F.3d at 276,
276 n.2 (citing Matter of Monreal, 23 I. & N. Dec. at 56 and Matter
of Anderson, 16 I. & N. Dec. 596 (1978)).
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Monreal, 23 I. & N. Dec. at 59 (citing Matter of Hwang, 10 I. & N.
Dec. 448, 451 (BIA 1964)).
Now that we have identified the standard, we turn to
Tacuri's specific arguments regarding his application and the way
in which he claims the BIA erred in evaluating it. First, he
argues that the BIA erred by ignoring its own precedent when it
concluded he had not demonstrated an "exceptional and extremely
unusual hardship" to his children if he is deported. Tacuri says
the BIA's cursory citations to its own governing precedent for
"exceptional and extremely unusual hardship" was not good enough
because the BIA ignored the "particulars of the factors" these
cases lay out. We disagree with Tacuri. Our caselaw indicates
these citations are indeed good enough: For example, in Alvarado,
the BIA didn't cite its most prominent hardship cases, and we still
found no legal error because the BIA had applied the precepts from
the cases. 743 F.3d at 276-77. Here, the BIA cited two governing
cases, Matter of Monreal and In re Andazola-Rivas, 23 I. & N. Dec.
319, 323 (BIA 2002) (Matter of Andazola), acknowledging the
precepts from these cases after it summarized the facts on the
record about Tacuri's two children, including J.T.C.'s asthma and
the family's economic circumstances.
On this same point, Tacuri argues that the governing
caselaw "force[s the BIA] to address the complete record," which,
according to Tacuri, the BIA did not do. For instance, Tacuri
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points out how the BIA did not consider J.T.C.'s personal hygiene
issues and only gave "selective" attention to J.T.C.'s asthma by
mentioning it was "largely stable." Further, Tacuri asserts the
decision failed to mention that J.T.C.'s $75 inhaler cost was the
out-of-pocket cost after the insurance covered a portion and that
J.T.C.'s asthma had gotten worse since his father's detainment.
This argument falls flat, however, because he cites no caselaw to
support the proposition that the BIA must specifically address
every evidentiary submission within the record.
Tacuri also claims the BIA improperly "applied a higher
standard than required" for determining "exceptional and extremely
unusual hardship" by impermissibly (though not explicitly)
requiring unconscionability. Remember, the BIA must "consider the
ages, health, and circumstances of qualifying lawful permanent
resident and United States relatives" but stops short of requiring
unconscionability when it determines whether the applicant's
removal would constitute "exceptional and extremely unusual
hardship" to these family members. Matter of Monreal, 23 I. & N.
Dec. at 63. Here, the BIA undoubtedly weighted some pieces of
evidence differently than the IJ; otherwise it wouldn't have
reached a different conclusion. But, in our view, the BIA did
cite the appropriate standard and did not require the hardship to
Tacuri's children to be unconscionable. In fact, the BIA decision
does not mention the word "unconscionable" at all.
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The "exceptional and extremely unusual hardship"
standard is supposed to be hard to meet and is evaluated in
comparison to the hardships typically felt by children whose
parents are removed from the country -- this in itself sets a high
bar. See Matter of Monreal, 23 I. & N. Dec. at 63; Matter of
Gonzalez Recinas, 23 I. & N. Dec. at 470. While Tacuri justifiably
believes the BIA's conclusion is unconscionable given the
injurious impact his departure will have on his entire family,
that does not translate to the BIA applying an unconscionability
standard in its decision. Ultimately, Tacuri's claims boil down
to his fundamental disagreement with how the BIA weighed and
considered the facts in his case. The BIA adequately explained
and supported its decision that Tacuri failed to meet the
"exceptional and extremely unusual hardship" standard. Citing
relevant precedent (as we addressed above), the BIA mentioned
J.T.C. and K.T.C.'s ages, it explored the children's "alleged
mental health issues," it addressed (however cursorily) J.T.C.'s
asthma, and it considered the economic impact Tacuri's removal
would have on his family.
All of this to say that, in our view, the BIA did not
commit any legal errors when it concluded Tacuri had not met his
burden to show his removal would result in "exceptional and
extremely unusual hardship" to his family. To the extent Tacuri
has challenged the BIA's decision as legally unsound, his claim
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fails on the merits. And to the extent Tacuri has disputed the
weight to which the BIA accorded some evidence over other evidence
and some factors over other factors, we have no jurisdiction to
consider these arguments.
Conclusion
This case is yet another occasion when we "regret that
we can do nothing more for petitioner[] and [his] children."
Alvarado, 743 F.3d at 278. Tacuri's removal from this country
will undoubtedly be devastating for his wife and children. The
law, however, does not lean in Tacuri's favor, both in the daunting
standard it sets and in the wide discretion it grants to the BIA
to deny relief even when others would not do so. And so, for the
foregoing reasons, the petition is denied in part and otherwise
dismissed for lack of jurisdiction.
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