Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 2, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
GERSON REYNOSO HERRERA,
Petitioner,
v. No. 21-9596
(Petition for Review)
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, BALDOCK, and CARSON, Circuit Judges.
_________________________________
The Board of Immigration Appeals (Board or BIA) adopted and affirmed an
Immigration Judge’s (IJ) order denying Gerson Reynoso Herrera’s application for
cancellation of removal. Mr. Herrera has filed a petition for review. We dismiss the
petition in part for lack of jurisdiction and, to the extent we have jurisdiction under
8 U.S.C. § 1252(a), deny the remainder of the petition.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 2
I. Background
Mr. Herrera is a native and citizen of Mexico who entered the United States
without admission or inspection in 1998 or 2000. In 2008, the Department of
Homeland Security served him a Notice to Appear charging him as removable under
8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without being
admitted or paroled. Mr. Herrera conceded removability as charged and initially
applied for an adjustment of status based on his marriage to a U.S. citizen. He later
abandoned that application after learning there was a bar to adjustment—Mr. Herrera
had reentered the United States in late 2004 or early 2005 falsely claiming to be a
U.S. citizen by presenting a United States birth certificate belonging to someone else.
Mr. Herrera instead applied for cancellation of removal. After a hearing, the IJ
denied cancellation, finding Mr. Herrera failed to demonstrate his removal would
cause exceptional and extremely unusual hardship to his U.S.-citizen wife, see
8 U.S.C. § 1229b(b)(1)(D) (requiring a cancellation applicant to establish, among
other things, “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”).
Mr. Herrera appealed that decision to the Board, arguing the IJ failed to
consider the effect his wife’s age and her long residency in the United States had on
her chances for employment in Mexico and the risk of returning to her hometown
there. He also argued the IJ failed to aggregate the factors relevant to the hardship
determination and failed to properly acknowledge which factors the IJ considered
2
Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 3
other than an economic analysis. The Board adopted and affirmed the IJ’s decision.
Mr. Herrera now seeks review in this court.
II. Discussion
A. The BIA did not apply the wrong standard of review
Mr. Herrera first argues the Board applied the wrong standard of review when
it determined his “disagreement with the ultimate manner in which the [IJ] weighed
those claims and evidence [of age discrimination, crime, and financial hardship] is
not sufficient to establish error in the [IJ’s] decision,” R., Vol. 1 at 3. Mr. Herrera
asserts the reference to “error” indicates the Board reviewed the IJ’s decision only for
clear error, a standard that applies to factual determinations. He claims that because
the underlying facts were not in dispute, a de novo standard of review applied to the
issue on appeal—whether the IJ erred in weighing the facts relevant to the hardship
determination. See 8 C.F.R. § 1003.1(d)(3)(i)-(ii) (Board reviews an IJ’s factual
findings for clear error and “questions of law, discretion, and judgment and all other
issues . . . de novo”); In re Gamero Perez, 25 I. & N. Dec. 164, 165 (B.I.A. 2010)
(applying de novo review to determination of hardship for cancellation purposes).
Cancellation is a form of relief from removal under 8 U.S.C. § 1229b. By
statute, “no court shall have jurisdiction to review . . . any judgment regarding the
granting of relief under section . . . 1229b,” 8 U.S.C. § 1252(a)(2)(B)(i), except for
“constitutional claims” and “questions of law,” § 1252(a)(2)(D). Whether the Board
applied an incorrect standard of review to the denial of cancellation is a question of
law over which we have jurisdiction. See Galeano-Romero v. Barr, 968 F.3d 1176,
3
Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 4
1184 (10th Cir. 2020) (“[W]e have jurisdiction over a claim that the Board applied
the incorrect standard of review to an IJ’s factual determinations” concerning
cancellation.).
We review questions of law de novo. Martinez-Perez v. Barr, 947 F.3d 1273,
1277 (10th Cir. 2020). So doing, we disagree with Mr. Herrera’s reading of the
Board’s decision. The Board adopted and affirmed the IJ’s decision pursuant to
In re Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994). In re Burbano provides that even
though the Board must review an IJ’s discretionary determination using its “own
independent judgment,” id. at 873, that “independent review authority does not
preclude the Board from adopting or affirming a decision of the immigration judge,
in whole or in part, when [the Board is] in agreement with the reasoning and result of
that decision,” id. at 874. In that circumstance, “the Board’s final decision may be
rendered in a summary fashion.” Id. That “does not mean,” however, the Board has
“conducted an abbreviated review of the record” or “failed to exercise [its] own
discretion.” Id. “Rather, it is simply a statement that the Board’s conclusions upon
review of the record coincide with those which the immigration judge articulated in
his or her decision.” Id.
Viewed through the lens of In re Burbano, and in light of the Board’s
acknowledgment of the different standards of review set out in 8 C.F.R.
§ 1003.1(d)(3)(i) and (ii), see R., Vol. I at 3, we decline to read the Board’s
summarization of its agreement with the IJ’s decision and its statement that
Mr. Herrera’s arguments were insufficient “to establish error in the [IJ’s] decision,”
4
Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 5
id., as a failure to fulfill its obligation to review the hardship determination de novo.
See Batalova v. Ashcroft, 355 F.3d 1246, 1252 (10th Cir. 2004) (“Absent any
indication to the contrary, we presume BIA members do their job thoroughly.”). We
therefore reject Mr. Herrera’s argument.
B. Mr. Herrera failed to exhaust his In re Gonzalez Recinas argument
Mr. Herrera next contends the IJ and the Board departed from the agency’s
hardship standard by not considering that his false claim to U.S. citizenship
permanently bars him from getting an immigrant visa to return to the United States
after removal.1 He bases this argument on In re Gonzalez Recinas, 23 I. & N. Dec.
467 (B.I.A. 2002). In that case, the Board emphasized the importance of considering
how long a noncitizen would be prevented from returning to the United States when
evaluating the hardship to a qualifying relative. See id. at 472.
“[W]e have jurisdiction to review a claim that the Board departed from its own
adopted hardship standard, by ignoring it or favoring some other inapplicable
standard.” Galeano-Romero, 968 F.3d at 1184. However, Mr. Herrera never
advanced his In re Gonzalez Recinas argument before either the IJ or the BIA. And
although the IJ cited In re Gonzalez Recinas, she did so only for a reason related to
those arguments Mr. Herrera did advance—that “hardship is ‘significant,’ where a
parent is solely responsible for his children’s care and his removal would result in a
1
The relevant statutory provision states: “Any alien who falsely represents, or
has falsely represented, himself or herself to be a citizen of the United States for any
purpose or benefit under this chapter . . . or any other Federal or State law is
inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I).
5
Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 6
serious financial detriment to his children,” R., Vol. 1 at 43. Mr. Herrera claims this
general reliance on In re Gonzalez Recinas means the IJ and BIA should have
addressed sua sponte the temporal element he now presses. But he cites no authority
for this proposition, and we disagree with it. We instead adhere to our general
exhaustion jurisprudence and conclude that because Mr. Herrera failed to exhaust this
argument, we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1) (“A court
may review a final order of removal only if . . . the alien has exhausted all
administrative remedies available to the alien as of right[.]”); Garcia-Carbajal v.
Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (“To satisfy § 1252(d)(1), an alien
must present the same specific legal theory to the BIA before he or she may advance
it in court.”).
C. We lack jurisdiction to review the hardship determination
Finally, Mr. Herrera asks us to undertake de novo review of whether he
established that his removal to Mexico would result in exceptional and extremely
unusual hardship to his wife, giving particular consideration to the temporal element
under In re Gonzalez Recinas. However, this court construes § 1252(a)(2)(B)(i)’s
limitation on judicial review “as denying jurisdiction to review the discretionary
aspects of a decision concerning cancellation of removal under § 1229b(b)(1).”
Galeano-Romero, 968 F.3d at 1181 (internal quotation marks omitted). And “[s]uch
discretionary aspects include . . . the determination of whether the petitioner’s
removal from the United States would result in exceptional and extremely unusual
6
Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 7
hardship to a qualifying relative under . . . § 1229b(b)(1)(D).” Id. (internal quotation
marks omitted).
Mr. Herrera concedes that Galeano-Romano precludes success on his request
for de novo review of the hardship determination. But he nevertheless asks us to
consider overruling Galeano-Romero in light of several other circuit decisions2 that
have since viewed the hardship determination as a mixed question of fact and law
reviewable under § 1252(a)(2)(D)’s “questions of law” exception to
§ 1252(a)(2)(B)’s jurisdictional bar.3 Those circuit courts reach that conclusion
based on the holding of Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020),
that “the phrase ‘questions of law’ in [§ 1252(a)(2)(D)] includes the application of a
legal standard to undisputed or established facts.”
However, in Galeano-Romano, we considered the effect of Guerrero-Lasprilla
on our prior case law and reaffirmed our precedent that “the determination of whether
the requisite hardship exists is discretionary because ‘there is no algorithm for
determining when a hardship is “exceptional and extremely unusual.”’” 968 F.3d
at 1183 (brackets omitted) (quoting Morales Ventura v. Ashcroft, 348 F.3d 1259,
2
The other circuit decisions Mr. Herrera relies on are Gonzalez Galvan v.
Garland, 6 F.4th 552, 560 (4th Cir. 2021); Trejo v. Garland, 3 F.4th 760, 773
(5th Cir. 2021), abrogated on other grounds by Patel v. Garland, 142 S. Ct. 1614,
1622 (2022), as stated in Ruiz-Perez v. Garland, 49 F.4th 972, at 977 (5th Cir. 2022);
and Singh v. Rosen, 984 F.3d 1142, 1150 (6th Cir. 2021). The Third Circuit agrees
with Galeano-Romano. See Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 249
(3d Cir. 2020).
3
We note Mr. Herrera’s statement that he raises this issue to preserve it for a
possible petition for rehearing en banc.
7
Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 8
1262 (10th Cir. 2003)). We concluded that “the Board’s discretionary determinations
[regarding whether the requisite hardship exists] . . . do not raise ‘questions of law’
for purposes of § 1252(a)(2)(D), even if framed as a challenge to the application of a
legal standard to established facts under Guerrero-Lasprilla.” Id. at 1184. And we
held that “[w]e lack jurisdiction to review the Board’s discretionary decision, based
on the facts of the case, whether an alien’s spouse will suffer an exceptional and
extremely unusual hardship.” Id. at 1182–83.
“[I]t is well established that one panel cannot overrule the judgment of another
panel of this court absent en banc reconsideration or a superseding contrary decision
by the Supreme Court.” Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1229
(10th Cir. 2001) (ellipsis and internal quotation marks omitted). Neither of these
conditions is present. We therefore cannot overrule Galeano-Romero and review the
hardship determination.
III. Conclusion
The petition for review is dismissed in part for lack of jurisdiction and
otherwise denied.
Entered for the Court
Joel M. Carson III
Circuit Judge
8