Pablo Salas-Caballero v. Loretta E. Lynch
786 F.3d 1077
8th Cir.2015Background
- Pablo Salas-Caballero, a Mexican national, conceded removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
- One statutory requirement for cancellation is showing "exceptional and extremely unusual hardship" to a qualifying relative (U.S. citizen or LPR); Salas-Caballero asserted hardship to his U.S. citizen son.
- At hearing, Salas-Caballero testified his son (age nine) lived with his mother in the U.S. and would remain in the U.S. if Salas-Caballero were removed; the son might accompany his mother to Mexico in the future.
- The Immigration Judge found country conditions in Mexico irrelevant because the son would likely remain in the U.S., and concluded the hardship alleged was the ordinary hardship of family separation.
- The BIA affirmed, stating that even considering country conditions in Mexico and all factors in the aggregate, Salas-Caballero failed to establish the requisite hardship.
- Salas-Caballero petitioned for review, arguing the BIA erred as a matter of law by not adequately considering the hardship if his son accompanied him to Mexico.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction to review the BIA's denial of discretionary cancellation of removal | Salas-Caballero contends the BIA committed legal error by failing to consider hardship if his son accompanied him to Mexico, raising a question of law | Government argues denial of cancellation is discretionary and courts lack jurisdiction except for constitutional claims or questions of law; this is effectively an attack on a discretionary determination | Dismissed for lack of jurisdiction; claim treated as challenge to discretionary BIA decision and therefore not reviewable |
Key Cases Cited
- Solis v. Holder, 647 F.3d 831 (8th Cir. 2011) (challenge to BIA's consideration of factors in cancellation decision is beyond jurisdiction)
- Tejado v. Holder, 776 F.3d 965 (8th Cir. 2015) (reaffirming lack of jurisdiction over discretionary cancellation determinations)
- Hernandez-Garcia v. Holder, 765 F.3d 815 (8th Cir. 2014) (court lacks jurisdiction even when petitioner frames an abuse-of-discretion claim as a legal one)
- Nunez-Portillo v. Holder, 763 F.3d 974 (8th Cir. 2014) (same principle limiting review of discretionary hardship determinations)
- Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011) (vacating review of discretionary cancellation denials under statutory limits)