Homero Garcia-Ortiz v. Merrick B. Garland, 20 F.4th 1212

Homero Garcia-Ortiz, a Mexican national who entered the U.S. unlawfully, was placed in removal proceedings in 2015 and applied for cancellation of removal.
Cancellation requires 10 years’ continuous presence, good moral character, no disqualifying convictions, and that removal would cause exceptional and extremely unusual hardship to a qualifying relative.
In April 2018 Garcia-Ortiz’s teenage daughter, Rosa, attempted suicide by ingesting naproxen and was diagnosed with major depressive disorder; Garcia-Ortiz cited this as proof his removal would cause exceptional hardship to her.
The IJ found Rosa did not lose consciousness, made no further attempts, indicated therapy helped, had not scheduled follow-up, and saw no strong causal link between the removal proceedings and her attempt; the IJ also suggested Garcia-Ortiz might be able to reenter after a limited separation.
The BIA adopted the IJ’s findings, concluded the aggregate hardships to the children were not “substantially beyond” ordinary removal hardships, and denied cancellation; Garcia-Ortiz appealed arguing legal error and misapplication of standards.
The Eighth Circuit denied the petition, holding the BIA applied the correct future-oriented standard and that the disputes over causation and the IJ’s reentry comment involved unreviewable factual or discretionary determinations.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA misapplied hardship standard by focusing on Rosa’s present condition rather than future effects	BIA erred by evaluating current conditions instead of future-oriented hardship	BIA properly considered future-oriented hardship and used present findings only as context	BIA applied correct future-oriented standard; no legal error
Whether IJ/BIA erred in doubting that removal proceedings caused Rosa’s suicide attempt	IJ wrongly discounted causation and failed to consider how removal would exacerbate Rosa’s condition	Causation and credibility are factual findings and discretionary; thus unreviewable	Court lacks jurisdiction to review factual credibility determinations; claim unreviewable
Whether BIA should have addressed IJ’s statement that respondent could likely reenter after a limited separation	BIA should have corrected or considered IJ’s mistaken legal conclusion about reentry eligibility	BIA did not adopt IJ’s reentry conclusion; review is limited to BIA’s order and adopted findings	Court cannot review IJ’s unadopted legal conclusion; the discretionary weighing is unreviewable

Ali v. Barr, 924 F.3d 983 (8th Cir. 2019) (discusses cancellation of removal as discretionary relief)
Pereira v. Sessions, 138 S. Ct. 2105 (2018) (Supreme Court authority cited for cancellation context)
Apolinar v. Barr, 945 F.3d 1072 (8th Cir. 2019) (lists statutory elements for cancellation of removal)
Gomez-Perez v. Holder, 569 F.3d 370 (8th Cir. 2009) (holds hardship inquiry must be future-oriented; distinguished Figueroa)
Figueroa v. Mukasey, 543 F.3d 487 (9th Cir. 2008) (articulates that hardship analysis is future-oriented)
Tejado v. Holder, 776 F.3d 965 (8th Cir. 2015) (factual evaluations of child’s mental-health evidence are unreviewable)
Fofanah v. Gonzales, 447 F.3d 1037 (8th Cir. 2006) (only BIA orders and adopted IJ findings are reviewable)
Solis v. Holder, 647 F.3d 831 (8th Cir. 2011) (IJ legal conclusions reviewable only if adopted by the BIA)