NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0326n.06
Case No. 20-4295
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 12, 2021
ABRAHAM CONTRERAS-SANCHEZ, )
DEBORAH S. HUNT, Clerk
)
Petitioner, )
) ON PETITION FOR
v. ) REVIEW FROM THE
) UNITED STATES BOARD
MERRICK B. GARLAND, Attorney General, ) OF IMMIGRATION
) APPEALS
Respondent. )
) OPINION
Before: SUTTON, Chief Judge; SUHRHEINRICH and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Abraham Contreras-Sanchez appeals the
Immigration Judge’s decision to deny his cancellation of removal request and the
Board of Immigration Appeals’ decision to dismiss his appeal. As far as Contreras
disputes factual findings below, we DISMISS for lack of jurisdiction. On the
remaining claims, we DENY the petition for review.
I. Background
Abraham Contreras-Sanchez entered the United States illegally in 2001. After
he pled guilty to driving while intoxicated and failing to stop at the scene of a
personal-injury accident, the government began removal proceedings. The
government charged Contreras with removability as a noncitizen present in the
No. 20-4295, Contreras-Sanchez v. Garland
United States without admission or parole. See 8 U.S.C. § 1182(a)(6)(A)(i).
Represented by counsel, Contreras admitted removability but applied for cancellation
of removal. See 8 U.S.C. § 1229b(b)(1).
Cancellation of removal is halting a removal and adjusting an immigrant’s
status to lawful permanent resident. Id. The Attorney General has the power to
cancel removal1 when the immigrant meets four criteria: 1) he “has been physically
present in the United States for a continuous period of not less than 10 years
immediately preceding” the cancellation of removal application, 2) he “has been a
person of good moral character during such period,” 3) he has not been convicted of
certain crimes, and 4) he “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.” Id. Only
the last prong is at issue here.
The Immigration Judge (“IJ”) held a hearing on Contreras’s motion. Contreras
testified that he came to the United States to find employment and that he worked
at a restaurant and a furniture company, making about $60,000 a year. His wife
Martha also does not have legal status in the country. They have five children who
are all United States citizens and range in age from about five to sixteen years old.
None of the children has health or educational problems. Contreras is the sole
provider for his family.
1 The Attorney General is not required to do so even if the immigrant meets all
the criteria. See Singh v. Rosen, 984 F.3d 1142, 1147 (6th Cir. 2021).
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Contreras and Martha decided that they would move the entire family to
Mexico if Contreras were removed. Contreras testified that he believed this would
harm his children because they speak little Spanish, and they might struggle to adapt
and thus experience bullying. The family plans to live with Contreras’s parents in
Telixtac, but their home has only two bedrooms and a kitchen. Most difficult,
according to Contreras, would be providing for his kids, especially as it pertains to
their education, because the school his children would attend is expensive and
distant, and his children might have to work in the fields to help the family make
ends meet. Along with Contreras’s testimony, the IJ also considered Martha’s
testimony, the testimony of others who supported Contreras, and documentary
evidence that included a declaration by proffered expert Professor Todd V. Fletcher
detailing the poor state of the Mexican education system and the hardships he
expected the Contreras children to face.
The IJ denied Contreras’s application for cancellation of removal, granted
voluntary departure, and entered an alternative order of removal. After summarizing
the relevant law and facts, the IJ found that Contreras met all the requirements for
cancellation of removal except for the hardship requirement. He noted that
Contreras’s children would have diminished educational opportunities, but they
would not lack education, and diminished educational opportunities alone cannot
satisfy the hardship requirement. That the parents were choosing to bring all the
children to Mexico with them would create some hardship, the IJ wrote, but not more
than other cases in which the immigrant did not show adequate hardship. Finally,
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the IJ found that Contreras’s assertion that his children speak only English was
implausible, expressed his belief that the children would have the necessary fortitude
to catch up and flourish in Mexican schools, and noted that the family would have
relatives to support their adjustment. As for Professor Fletcher’s report, the IJ gave
it only some weight because it referenced extra-record documents, may have reused
boilerplate language discussing a child named “Christopher,” made sweeping
generalizations, and ultimately only supported the proposition that education in
Mexico is less developed than America’s but not completely lacking.
The Board of Immigration Appeals (“BIA”) dismissed Contreras’s appeal. It
agreed that Contreras did not meet the exceptional and extremely unusual hardship
standard, noting that none of his children had special medical or educational needs.
It also mentioned that the IJ was correct to give minimal weight to Professor
Fletcher’s report. Though the BIA recognized that moving to Mexico would present
some hardship and diminished opportunities, it agreed that it was not an
extraordinary hardship. It also noted that, unlike the single mother in In re Gonzalez
Recinas, 23 I. & N. Dec. 467 (B.I.A. 2002), Contreras had relatives in his home country
who could help with the adjustment.
II. Analysis
The first step here is to determine whether we have jurisdiction to review
Contreras’s claims. Although circuit courts have jurisdiction to review final orders of
removal, 8 U.S.C. § 1252(a)(1), “no court shall have jurisdiction to review,” judgments
regarding discretionary relief, including cancellation of removal,
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8 U.S.C. § 1252(a)(2)(B). The only exception is for “constitutional claims or questions
of law.” Id. § 1252(a)(2)(D). For purposes of this statute, “questions of law” includes
“the application of a legal standard to undisputed or established facts.” Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). And applying the hardship standard
to the facts of the case is a mixed question that appellate courts can review, so we
have jurisdiction to review the “ultimate hardship conclusion.” Singh, 984 F.3d at
1145, 1150. Because the BIA’s failure to adhere to its own precedent as required by
regulation is “non-discretionary error,” we also have jurisdiction to review such
challenges. Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir. 2008); 8 C.F.R. §
1003.1(g). Deciding whether a question is reviewable turns on the substance of the
claim, not the label. Singh, 984 F.3d at 1149. And “where, as here, the BIA adopts
the IJ’s decision and supplements that decision with its own comments, we review
both opinions.” Bi Qing Zheng v. Lynch, 819 F.3d 287, 293 (6th Cir. 2016) (cleaned
up) (quoting Hachem v. Holder, 656 F.3d 430, 434 (6th Cir. 2011)).2
Contreras begins by arguing that the IJ erred by coming to conclusions
contrary to the evidence. He argues that the IJ’s conclusion that the children
understood enough Spanish to integrate into the Mexican schools was clearly
erroneous because it conflicted with the evidence. These are factual determinations
2 We apply de novo review to mixed questions of law and fact when they require
legal exposition, and we apply deferential review to mixed questions that deal heavily
in factual issues. Singh, 984 F.3d at 1154. This kind of mixed question likely calls for
“deference to the [BIA].” Id. Our circuit has not yet determined the exact level of
deference, but as in Singh, “we need not choose the proper standard of review”
because Contreras will not prevail under any viable standard. Id.
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that we lack jurisdiction to review, Singh, 984 F.3d at 1154–55. And even if we could
review this claim, it would not justify relief under any deferential review standard.
Next, Contreras argues that the IJ and the BIA failed to correctly apply its
own precedent, specifically In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001);
In re Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002); Recinas, 23 I. & N. Dec. 467;
and In re J-J-G-, 27 I. & N. Dec. 808 (B.I.A. 2020).3 He describes three ways the BIA
failed.
First, he argues the BIA read the “exceptional and extremely unusual
standard” as requiring something more than loss of economic and educational
opportunities, ignoring that the precedents say such hardship is only “generally”
insufficient. In essence, he charges the BIA with applying a bright-line rule that
automatically excludes all claims based on economic and educational hardship falling
short of complete deprivation and destitution. The BIA and the IJ did not apply such
a rule. The IJ looked at the evidence “both individually and cumulatively,” including
the educational challenges (which would be common for children removed from the
United States and would not be insurmountable), the availability of education (even
though diminished), the health of Contreras’s children and their ability to improve
their Spanish skills, family assistance available to Contreras in Mexico, “adverse
“An agency’s interpretation of its own precedents receives considerable
3
deference,” so we “confine ourselves to asking whether the BIA reasonably construed
and applied its own precedents.”Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th
Cir. 2008). Because the BIA will prevail either way, we need not decide today if Kisor
v. Wilkie, 139 S.Ct. 2400 (2019), changes how we apply this Auer-based standard. See
United States v. Riccardi, 989 F.3d 476, 484–85 (6th Cir. 2021).
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country conditions,” Contreras’s likely lower wages in Mexico, and the suboptimal
size of the housing they will likely live in. (A.R. 62, 67–72.) The BIA likewise
acknowledged the hardship that the Contreras children would face, concluding that
it was not above and beyond the expected hardship for all children of removed
parents.4
Second, Contreras asserts that the BIA used the wrong legal standard when
comparing his case to Recinas because it stated that the mother there had six children
when only four were United States citizens.5 But the BIA was correct that the mother
in Recinas resided with six children, which was relevant to her ability to support all
her children, including those who were United States citizens. See Recinas, 23 I. &
N. Dec. at 471. And at any rate, the number of children was not the only difference
the BIA noted between Recinas and Contreras. Unlike this case, Recinas had no
4 Contreras reads the IJ’s opinion as not considering these factors because it
stated that the failures of the Mexican educational system were “the entire concern.”
(A.R. at 71.) But the IJ’s statement followed a paragraph explaining that “a lower
standard of living, diminished educational opportunities, and poor economic
conditions, and adverse county conditions are relevant but insufficient in and of
themselves to support a finding of exceptional and extremely unusual hardship.” (Id.
at 70.) So the IJ considered all these hardships, even though Contreras had
emphasized the educational difficulties. For this reason, Contreras cannot prevail on
his claims that the BIA and IJ failed to consider the cumulative hardship, the loss of
housing, and the decreased wages.
5 He also argues that the BIA failed to consider that Contreras’ five children
outnumbered Andazola’s two children, meaning that Contreras’ removal would cause
more suffering. See Andazola, 23 I. & N. Dec. at 320. But having more United States
citizen children than someone else who did not receive cancellation of removal does
not bind the BIA to afford relief here.
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spousal support and no family support in her home country, and her children lacked
knowledge of Spanish.6
Finally, Contreras adds that the BIA and IJ were wrong to consider the
family’s move to Mexico a “choice” even though he thinks that leaving the children in
the United States with their mother—also an illegal immigrant—would be infeasible.
But the BIA and IJ were right not to speculate about whether the mother would be
removed when no removal proceedings were under way. See In re Calderon-
Hernandez, 25 I. & N. Dec. 885, 886–87 (B.I.A. 2012). Since the mother has the option
to remain in the United States, deciding where the children would live is a matter of
choice for Contreras and his wife. Cf. In re Ige, 20 I. & N. Dec. 880, 886 (B.I.A. 1994)
(“[W]e will generally consider the decision to leave the child in the United States to
be a matter of personal choice.”).
Conclusion
Because we lack jurisdiction to consider Contreras’s factual challenges, and
since his legal challenges fail on the merits, we DISMISS the petition for review in
part and DENY it in part.
6 Contreras also asserts that the BIA incorrectly applied Recinas because it
failed to see his five children’s struggle with Spanish as worse than the two children’s
struggle with Spanish in Recinas. This wades back into the issue of the IJ’s ruling
that Contreras’ account of his children’s Spanish skills was implausible, a factual
determination that we cannot disturb.
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