3 F.4th 760
5th Cir.2021Background:
- Guerrero, a Mexican national who entered the U.S. in 2002, is the father of five U.S.-citizen children and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- The IJ found Guerrero met the presence, good moral character, and non‑disqualification requirements but denied cancellation for failure to show "exceptional and extremely unusual hardship" to his U.S.-citizen children.
- The BIA adopted and affirmed the IJ’s findings and conclusions; Guerrero petitioned this Court for review.
- The Government moved to dismiss for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B), arguing hardship determinations are discretionary and unreviewable.
- The Fifth Circuit held it has jurisdiction to review whether the agency correctly applied the legal hardship standard (a "mixed question" under Guerrero‑Lasprilla) but affirmed the denial on the merits: substantial evidence supports the agency’s findings that the children would not suffer hardship beyond the ordinary consequences of parental removal.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review hardship finding | Guerrero: Court may review agency's application of law to facts; hardship determination is an eligibility question | Garland: Denial of cancellation is discretionary and §1252(a)(2)(B) bars review | Court: Jurisdiction exists—Guerrero‑Lasprilla renders hardship a reviewable "mixed question" under §1252(a)(2)(D) |
| Sufficiency of factual record on children's hardship | Guerrero: Natalia's ADD is more severe; mothers cannot reliably support children | Garland: (did not contest merits; argued only jurisdiction) | Court: Substantial evidence supports IJ findings; Guerrero failed to meet his burden to show exceptional hardship |
| Correct legal standard applied for "exceptional and extremely unusual hardship" | Guerrero: Case is similar to Recinas and warrants a finding of exceptional hardship | Garland: Agency applied BIA precedent (Monreal‑Aguinaga) requiring hardship substantially beyond ordinary separation | Court: BIA’s interpretation reasonable and entitled to Chevron deference; applied correctly; denial affirmed |
Key Cases Cited
- Guerrero‑Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (mixed questions—application of law to facts—are reviewable under §1252(a)(2)(D))
- Pereira v. Sessions, 138 S. Ct. 2105 (2018) (reviewed BIA legal/factual determinations in removal context)
- St. Cyr v. I.N.S., 533 U.S. 289 (2001) (Congress must provide adequate substitute for habeas review; limits on review construed in light of due process)
- Kucana v. Holder, 558 U.S. 233 (2010) (distinguishes eligibility rulings from discretionary grants of relief)
- Mireles‑Valdez v. Ashcroft, 349 F.3d 213 (5th Cir. 2003) (§1252(a)(2)(B) bars review of discretionary judgments, not factual findings)
- Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021) (hardship requirement is a mixed question reviewable after Guerrero‑Lasprilla)
- Patel v. United States Att’y Gen., 971 F.3d 1258 (11th Cir. 2020) (en banc) (held hardship eligibility is reviewable; discussed scope of §1252(a)(2)(B))
- Jay v. Boyd, 351 U.S. 345 (1956) (eligibility for discretionary relief governed by statutory standards giving right to a ruling)
- Alvarado de Rodriguez v. Holder, 585 F.3d 227 (5th Cir. 2009) (agency’s application of law to facts in eligibility determinations is a legal question reviewable on petition for review)