Santillan-Borrayo v. Garland, 20-9584

Background

Petitioner Hector Santillan-Borrayo, a Mexican national, entered the U.S. unlawfully in 2002 and has three U.S.-citizen children (born 2003, 2005, 2009) plus a younger child who also entered in 2002.
In 2017 the government charged him as present without admission; he conceded removability and sought cancellation of removal under 8 U.S.C. § 1229b(b)(1), which requires showing "exceptional and extremely unusual hardship" to qualifying relatives (citizen or LPR spouse/parent/child).
Petitioner presented evidence of likely economic decline, reduced educational opportunities if the family relocated to Mexico, the wife’s diabetes (concern about access/affordability of care), and son J.S.’s mental-health diagnosis and treatment tied to the deportation threat.
The IJ found the children would suffer hardship but concluded the evidence was not persuasive enough to show hardship "substantially beyond" ordinary hardship of family removal and denied cancellation; the BIA affirmed after reviewing economic, medical, and emotional evidence.
Petitioner appealed to the Tenth Circuit, arguing the BIA: (1) applied extra-statutory criteria (weighting number of affected children), (2) failed to adequately assess J.S.’s individual hardship, and (3) violated due process by not explicitly revisiting precedent or reconciling unpublished authority.
The Tenth Circuit dismissed parts of the petition for lack of jurisdiction and otherwise denied relief, holding the BIA acted within its legal bounds and petitioner failed to raise a colorable constitutional claim or a correctable legal error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction to review hardship determination	Court can review legal or constitutional challenges; petitioner frames legal errors	Gov’t: cancellation hardship determination is discretionary and largely unreviewable under §1252(a)(2)(B)	Court: lacked jurisdiction over discretionary hardship findings but retained review of colorable constitutional and legal questions under §1252(a)(2)(D)
Whether BIA imposed extra‑statutory criteria by requiring hardship to more than one child	BIA improperly weighed number of qualifying relatives, effectively requiring more than one child to be disabled	BIA considered aggregate hardship to all qualifying children and did not impose a numerical requirement	Held: No error — BIA did not impose an artificial rule; claim rejected
Whether BIA failed to assess J.S.’s individual hardship adequately	IJ and BIA lumped J.S.’s disability with other children and gave it insufficient weight	BIA considered hardship cumulatively and petitioner did not ask for isolated consideration; such weighting is discretionary	Held: Court lacks jurisdiction to reweigh; BIA’s aggregate approach is permissible
Due process / need to revisit precedent or reconcile unpublished authority	BIA failed to explicitly revisit or reconcile precedent and unpublished decisions as requested, denying meaningful review	BIA acknowledged and considered petitioner’s arguments and authorities and gave a reasoned result; no entitlement to exhaustive analysis	Held: Not a colorable constitutional claim; BIA’s explanation was sufficient; claim not reviewable

Key Cases Cited

Galeano-Romero v. Barr, 968 F.3d 1176 (10th Cir. 2020) (defines Tenth Circuit jurisdictional limits over cancellation-of-removal hardship determinations)
Mena-Flores v. Holder, 776 F.3d 1152 (10th Cir. 2015) (standard of review for constitutional claims and legal questions in immigration appeals)
Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234 (10th Cir. 2001) (threshold for a colorable constitutional claim)
Pareja v. Attorney General, 615 F.3d 180 (3d Cir. 2010) (criticized BIA for seemingly weighing number of qualifying relatives in hardship analysis)
Alzainati v. Holder, 568 F.3d 844 (10th Cir. 2009) (BIA not required to address every contention in exhaustive detail)
Maatougui v. Holder, 738 F.3d 1230 (10th Cir. 2013) (explains sufficiency of BIA explanations)
Hadjimehdigholi v. INS, 49 F.3d 642 (10th Cir. 1995) (BIA not required to discuss every piece of evidence)