67 F.4th 254
5th Cir.2023Background
- Jose Rangel Perez, a Mexican national, conceded removability under 8 U.S.C. § 1182(a)(6)(A)(i).
- Perez applied for cancellation of removal based on hardship to his U.S.‑citizen wife and three minor daughters, submitting medical records (including daughter’s asthma) and family testimony.
- The IJ found Perez and his wife credible but denied cancellation, concluding the family’s hardship did not meet the “exceptional and extremely unusual” standard.
- Perez presented additional evidence to the BIA (wife pregnant; middle daughter treated for ADHD and in special education); the BIA affirmed the IJ and declined to remand, finding the new evidence would not alter the outcome.
- Perez sought review in the Fifth Circuit, arguing the IJ/BIA applied the wrong legal standard (and raising due process concerns) and that the BIA should have remanded for new evidence and possible voluntary departure.
- The Fifth Circuit dismissed the petition for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(B) as interpreted by the Supreme Court in Patel and controlling Fifth Circuit precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ/BIA applied wrong legal standard in assessing "exceptional and extremely unusual hardship" | Perez: IJ/BIA used an incorrect legal standard and violated due process | Government: Agency applied the correct standard and thoroughly considered hardship evidence | Dismissed for lack of jurisdiction to review the hardship factual determination |
| Whether the BIA erred by refusing to remand for consideration of newly submitted evidence | Perez: New evidence (pregnancy; child’s ADHD/special ed) warranted remand | Government: New evidence would not change outcome; no remand required | Dismissed for lack of jurisdiction to review agency refusal to reopen/remand tied to unreviewable hardship finding |
| Whether the BIA should have remanded for possible voluntary departure | Perez: BIA should have considered voluntary departure on remand | Government: Argument not raised before the BIA; therefore unexhausted | Not reached on merits; claim is unexhausted and cannot be considered now |
| Whether the Fifth Circuit has jurisdiction to review these decisions under §1252 carveouts | Perez: Claims include legal errors and constitutional issues within §1252(a)(2)(D) carveout | Government: Patel and circuit precedent strip review of factual hardship findings; only pure questions of law/constitutional claims are reviewable | Court held it lacks jurisdiction over the hardship factual determinations and dismisses petition |
Key Cases Cited
- Patel v. Garland, 142 S. Ct. 1614 (establishes that federal courts lack jurisdiction to review factual findings underlying §1229b hardship decisions)
- Castillo-Gutierrez v. Garland, 43 F.4th 477 (5th Cir. holding BIA hardship determinations are beyond judicial review)
- Mireles-Valdez v. Ashcroft, 349 F.3d 213 (discretionary nature of cancellation of removal under §1229b)
- Assaad v. Ashcroft, 378 F.3d 471 (refusal to reopen/remand tied to unreviewable final removal orders is also shielded from review)
- Trejo v. Garland, 3 F.4th 760 (discussion of what constitutes hardship beyond ordinary family separation)
- Omari v. Holder, 562 F.3d 314 (exhaustion requirement: issues must be fairly presented to the BIA)
- Martinez-Guevara v. Garland, 27 F.4th 353 (procedural/due process claims must be exhausted with the BIA)
- Santos-Zacaria v. Garland, 143 S. Ct. 82 (Supreme Court granted certiorari on issues related to exhaustion and reviewability)