JOSE MAURICIO FIGUEROA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
No. 22-1272
United States Court of Appeals For the First Circuit
October 17, 2024
Before Barron, Chief Judge, Howard and Gelpí, Circuit Judges.
Robert M. Warren for petitioner.
Timothy Bo Stanton, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.
Cody Wofsy, Hannah Schoen, Lee Gelernt, Matthew R. Segal, Adriana Lafaille, Gilles Bissonnette, and SangYeob Kim,
October 17, 2024
HOWARD, Circuit Judge. Jose Mauricio Figueroa, a native and citizen of El Salvador, petitions for review of the denial of his application for special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA). Specifically, Figueroa takes issue with the agency‘s determination that he was ineligible for this discretionary form of relief because he failed to establish that his removal would result in “exceptional and extremely unusual hardship” to himself or his spouse Maria. For the reasons explained below, we deny the petition.
I.
A.
The Department of Homeland Security (DHS) commenced the underlying removal proceedings against Figueroa in 2007. The relevant procedural history for our purposes, however, began in March 2018, when Figueroa appeared in front of an immigration judge (IJ) seeking special rule cancellation of removal under NACARA.
“Enacted in 1997, NACARA amended certain provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) permitting [certain] aliens from particular countries, including [El Salvador], to seek discretionary relief under prior, more generous statutory standards.” Gonzalez-Ruano v. Holder, 662 F.3d 59, 60 (1st Cir. 2011). Figueroa and DHS agreed that a heightened NACARA standard applied to Figueroa based on his criminal history. Under that standard, Figueroa could establish eligibility for special rule cancellation of removal by showing: (1) a ten-year period of continuous physical presence in the United States; (2) good moral character during that period; and (3) that his removal would result in “exceptional and extremely unusual hardship” to Figueroa or a qualifying relative.1 Pub. L. No. 105-100, § 203, 111 Stat. 2160, 2198-99 (1997);
Figueroa and DHS stipulated that Figueroa had satisfied the necessary period of continuous presence. The remaining requirements were all contested at the hearing. Figueroa offered his own testimony and that of Maria and his daughter, as well as affidavits from two of his other children and several letters of support from friends and coworkers.
The IJ denied Figueroa‘s application in a written order issued in May 2019. The IJ described how Figueroa has lived in the United States for thirty years with Maria, who has lawful status. The IJ went on to find that Figueroa has worked during that time and that the couple owns two properties for which Figueroa manages the finances. The IJ also recognized that Maria works, has health insurance, and plans to retire in a few years.
The IJ acknowledged that Figueroa‘s removal would pose an emotional and economic hardship to Maria. Specifically, the
The IJ further acknowledged that Figueroa‘s removal would pose a hardship to Figueroa personally. The IJ noted that Figueroa takes daily medication for high blood pressure, high cholesterol, and heart problems, and that he claimed he would have difficulty getting medical care in El Salvador. The IJ also took note of the fact that Figueroa claimed he would be unable to find work or housing in El Salvador and that his cousin had been killed within three months of being removed from the United States to El Salvador in 2017. The IJ did not make a credibility finding with respect to Figueroa.
In the end, the IJ concluded that, although a “close call,” Figueroa had not met his burden of establishing exceptional and extremely unusual hardship to himself or Maria.3 The IJ also held that, even if eligible for special rule cancellation of removal, Figueroa did not merit a favorable exercise of discretion because he “refus[ed] to take responsibility” for his repeated arrests for indecent assault and battery. The IJ did not reach the issue of whether Figueroa had established the requisite good moral character.
Figueroa sought review with the Board of Immigration Appeals (BIA), who dismissed his appeal with a written order issued in March 2022. Citing several of its published decisions regarding the hardship standard, see In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (B.I.A. 2001); In re Andazola-Rivas, 23 I. & N. Dec. 319 (B.I.A. 2002); In re Gonzalez Recinas, 23 I. & N. Dec. 467 (B.I.A. 2002), the BIA concluded that the IJ had correctly applied the standard. With respect to financial hardship, the BIA explained that Figueroa “has not met his burden of proving he and his wife would be unable to secure employment or provide for their own basic needs after [Figueroa] returns to El Salvador.” And while the BIA deemed itself “sympathetic” to Figueroa‘s concerns for his safety, it reasoned that “the possibility of crime in El Salvador [does not] meet[] or exceed[] the exceptional and extremely unusual hardship standard.” Having found that Figueroa was ineligible for special rule cancellation of removal, the BIA declined to reach Figueroa‘s challenge to the IJ‘s alternative determination that he was not entitled to a favorable exercise of discretion.
B.
Figueroa timely petitioned this court for review. The government initially claimed that we did not have jurisdiction to hear Figueroa‘s case, arguing that
II.
We start with the scope of our inquiry and our jurisdiction to undertake it.
A.
“Congress has sharply circumscribed judicial review of the discretionary-relief process.” Patel v. Garland, 596 U.S. 328, 332 (2022). Specifically, Congress enacted in 1996 as part of IIRIRA a provision that is now codified at
But “[t]his bar has an important qualification.” Patel, 596 U.S. at 333. Namely, in response to the Supreme Court‘s decision in INS v. St. Cyr, 533 U.S. 289 (2001), Congress approved a provision that is now codified at
For some time, interpretation of this statutory scheme largely rested with the lower courts,5 leaving “unresolved” “many questions surrounding the procedure for judicial review provided in [§ 1252].” 14A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3664 (4th ed. 2013). In recent years, however, the Supreme Court has on multiple occasions turned its attention to the jurisdictional provisions of
First, in Patel, the Supreme Court held that “questions of fact underlying denials of discretionary relief are unreviewable under both § 1252(a)(2)(B)(i) and § 1252(a)(2)(D).” Wilkinson, 601 U.S. at 219 (citing Patel, 596 U.S. at 343, 347). The noncitizen in the case was seeking discretionary adjustment of status under
Then, in Wilkinson, the Supreme Court held that “[t]he application of a statutory legal standard (like the exceptional and extremely unusual hardship standard) to an established set of facts” is a “mixed question of law and fact” that is reviewable under
B.
While we previously have acknowledged that whether jurisdiction exists under
Where do we look for that given set of established facts? Figueroa seemingly would have us take account of anything that he testified to in the proceeding before the IJ. For instance, he urges us to consider that he would “suffer[] from . . . difficulty getting medical care in El Salvador.” But while Figueroa did testify that “[t]here‘s a lot of poverty over there so it would be very, very, very difficult” to receive treatment for his various ailments if removed, the IJ made no factual finding regarding the likelihood of Figueroa being able to obtain his medicine in El Salvador. In essence then, Figueroa is asking that we take his testimony as true despite the lack of a finding by the IJ that it was. “A reviewing court is not bound, however, to accept a petitioner‘s statements as fact whenever an IJ simply has not made an express adverse credibility determination.” Kho v. Keisler, 505 F.3d 50, 56 (1st Cir. 2007); see also Garland v. Ming Dai, 593 U.S. 357, 364, 372-73 (2021).
Figueroa otherwise maintains that he takes no issue with the facts as found by the agency.6
III.
Assured of our jurisdiction and equipped with the agency‘s factual findings, we turn to the issue of whether the agency erred in concluding that Figueroa failed to establish that his removal would result in “exceptional and extremely unusual hardship” to either himself or Maria. Where, as here, “the BIA adopts the IJ‘s decision but adds its own gloss, we ‘review the decisions of both the BIA and the IJ’ together.” Espinoza-Ochoa v. Garland, 89 F.4th 222, 230 (1st Cir. 2023) (quoting Aldana-Ramos v. Holder, 757 F.3d 9, 14 (1st Cir. 2014)). Our review is deferential. See Wilkinson, 601 U.S. at 225 (“Because this mixed question is primarily factual, . . . review is deferential.“).8
Figueroa‘s contention is that the agency “erred . . . in the application of the seminal cases on exceptional and extremely unusual hardship.” Although he counts both BIA precedent and decisions of the courts of appeal among those cases, he makes no effort to develop any argument based on the latter. We thus consider only Figueroa‘s argument that the BIA misapplied its own precedent to his case.9 See Mendez-Barrera v. Holder, 602 F.3d 21, 26 (1st Cir. 2010) (“An administrative agency must respect its own precedent, and cannot change it arbitrarily and without explanation, from case to case.“); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.“).
Figueroa focuses on Maria. He argues that his removal would subject her to the requisite hardship because she is dependent on him for financial and emotional support. But “it has long been settled that economic detriment alone is insufficient to support even a finding of extreme hardship,” Andazola-Rivas, 23 I. & N. Dec. at 323, let alone exceptional and extremely unusual hardship. And Figueroa offers nothing in response to the IJ‘s observation that “[w]hen [Figueroa] was out of work for six months[,] his wife managed with her income, income generated by [their] properties, and help from her family.” With respect to emotional support too, Figueroa has failed to establish that the agency erred in concluding that this hardship would not be “substantially beyond the ordinary hardship that would be expected when a close family member leaves this country.” Monreal-Aguinaga, 23 I. & N. Dec. at 62 (internal quotations omitted).
Figueroa also argues that the agency erred in concluding that removal would not pose an exceptional and extremely unusual hardship to him personally. He primarily takes issue with the weight that the agency assigned to his concerns for his own
Figueroa‘s remaining arguments regarding the hardship standard as applied to him are equally unavailing. He highlights his testimony on what he fears will befall him if removed to El Salvador, but as we have already explained, we cannot take Figueroa‘s testimony as conclusive as to the likelihood of future events in these circumstances. See Kho, 505 F.3d at 56; Ming Dai, 593 U.S. at 364, 372-73. In any event, Figueroa offers no response to the BIA‘s observation that he had “not met his burden of proving he . . . would be unable to secure employment or provide for [his] own basic needs” upon removal. Figueroa‘s case thus stands in contrast to Gonzalez Recinas, in which the BIA found the hardship standard satisfied by a “close margin” for four children whose single mother faced removal to Mexico, where she had no close family and would be solely responsible for the four children and their two siblings. 23 I. & N. Dec. at 471.
Finally, Figueroa calls attention to the more than three decades that he has spent in the United States. While we recognize the length of his residency in this country, we also note that it does not particularly distinguish Figueroa from other applicants for the relief he seeks, as special rule cancellation of removal under NACARA is generally available only to those who entered the country before the early 1990s. See
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The petition for review is denied.