               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0585n.06

                                         No. 08-4717

                         UNITED STATES COURT OF APPEALS                              FILED
                              FOR THE SIXTH CIRCUIT                               Aug 19, 2009
                                                                            LEONARD GREEN, Clerk

RODOLFO GALICIA DEL VALLE,                   )
                                             )
       Petitioner,                           )
                                             )
v.                                           )        PETITION FOR REVIEW OF ORDER OF
                                             )        BOARD OF IMMIGRATION APPEALS
ERIC H. HOLDER, JR.,                         )
Attorney General of the United States,       )
                                             )
       Respondent.                           )


       BEFORE:        KEITH, SUTTON, and WHITE, Circuit Judges.

       KEITH, Circuit Judge. Petitioner Rodolfo Galicia Del Valle (“Galicia”) seeks this Court’s

review of an order from the Board of Immigration Appeals (“BIA”), denying his application for

asylum, withholding of removal, and cancellation of removal. For the following reasons, we DENY

the petition for review and AFFIRM the BIA’s decision.

                                                 I.

                                   A. Procedural Summary

       On May 19, 2006, the Department of Justice served Galicia with a Notice to Appear,

charging him with removability under 8 U.S.C. § 1182(a)(6)(A)(i). Joint Appendix (“J.A.”) 91. On

June 14, 2006, he appeared before the Immigration Judge (“IJ”) and conceded removability.

Administrative Record (“A.R.”) 88. That same day, Galicia indicated that he wished to seek relief
Case No. 08-4717
Galicia Del Valle v. Holder

from removal through asylum, withholding of removal, and cancellation of removal under the

Immigration and Nationality Act.1

        On June 11, 2007, Galicia appeared with counsel before the IJ in an evidentiary hearing and

testified with the help of a Spanish interpreter. J.A. 28. Galicia’s church pastor also testified at the

hearing. J.A. 53. During the proceedings, Galicia requested voluntary departure in the event of

removal. J.A. 70

        An oral decision was rendered the day of the hearing. The IJ denied Galicia’s applications

for asylum, withholding of removal and cancellation of removal but granted him voluntary

departure. J.A. 26. Galicia timely appealed the IJ’s decision and the BIA dismissed the appeal in

an order and opinion dated December 5, 2008. J.A. 3-5. The instant petition for review timely

followed on December 23, 2008. J.A. 1.

                                      B. Removal Proceeding

        Galicia is a native and citizen of Guatemala who was 33 years old at the time of his

evidentiary hearing before the IJ on June 11, 2007. J.A. 32. According to testimony found credible

by the IJ, Galicia fled Guatemala and entered the United States in 1993, at the age of nineteen. J.A.

14, 32-33. He left the country due to his fear of Guatemalan guerrillas, who were engaged in civil

war with the national government. See J.A. 32-33.

        Galicia testified that prior to his departure from Guatemala, guerrillas threatened to kill him

and his family if they did not join the rebel cause. J.A. 33. He noted that “many” people in his area


        1
        The record indicates that Galicia also sought at some point relief under the Convention
Against Torture. J.A. 4. He appears to have abandoned this claim prior to his immigration hearing
and has not raised the issue in the instant appeal. J.A. 29-30.

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had disappeared or left after resisting guerrilla recruitment. Id. Galicia suspected that some of those

individuals were harmed by the guerrillas. Id. Galicia also testified that his grandfather was beaten

by the guerrillas and suffered severe injuries because of his refusal to support them. J.A. 33-34.

According to Galicia, these injuries ultimately resulted in his grandfather’s death. J.A. 34. Galicia

feared returning to Guatemala because he believed that guerrillas remained in the area and were

aware that he had fled the country. Id. Galicia’s parents, as well as seven of his siblings, continue

to live in Guatemala. J.A. 45.

       At the time of his immigration hearing, Galacia lived in Horn Lake, Mississippi, with his

wife and their three year old daughter, Kayla Rosio (“Kayla”). J.A. 35-36. Kayla was born in the

United States. J.A. 35. Galicia’s wife, Rosio Kalisa (“Rosio”), is a Mexican national without legal

status in the United States. Id. Galicia testified to his belief that his wife would not be able to

accompany him to Guatemala because of her Mexican citizenship. J.A. 41. He also asserted that

he could not live with her in Mexico. J.A. 42. Galicia testified that he, his wife, and Kayla were

in good health at the time of his hearing. J.A. 47-48.

       Rosio cared for Kayla at home but Galicia testified they planned to send Kayla to preschool

in the upcoming school year. J.A. 38. Kayla speaks both English and Spanish. Id. Galicia claimed

that Kayla would not be safe in Guatemala and that she would suffer from diminished educational

opportunities there. J.A. 43. According to the 2005 United States Department of State Country

Report on Human Rights Practices in Guatemala (“State Department Report”), included as part of

the administrative record, while Guatemalan law “provides for free compulsory education for all

children up to the sixth grade, less than half the population had received a primary education.” J.A.


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84. The report estimated “that 40 percent of children who entered primary school finished their third

year and 30 percent were promoted beyond sixth grade.” Id.

        Galicia is self-employed as a licensed painter. J.A. 40. Galicia testified he received only

a fourth-grade education in Guatemala and contended it would be “very difficult” to find work if

removed to his native country. J.A. 40, 43. He specifically denied the possibility of working on his

family’s farm, although he acknowledged doing so before he left Guatemala. J.A. 47.

                                        C. The IJ’s Decision

        As mentioned above, the IJ issued an order on June 11, 2007, denying Galicia’s applications

for asylum, withholding of removal, and cancellation of removal. J.A. 10. With respect to the

asylum claim, the IJ determined that Galicia, notwithstanding his credibility, failed to present

sufficient objective evidence to establish past persecution. J.A. 18. Specifically, the IJ found that

“vague testimony that [guerrillas] attempted to recruit” Galicia did not constitute “persecution”

under 8 U.S.C. § 1101(a)(42)(A). J.A. 19. The IJ further ruled that Galicia “failed to demonstrate

a well-founded fear of persecution on account of any of the protected grounds.” Id.

        Relying on INS v. Elias-Zacharias, 502 U.S. 478 (1992), the IJ explained that “recruitment

of an individual by a guerrilla organization, is not, in and of itself, persecution on account of

political opinion.” Id. Galicia’s argument that he was persecuted based on membership in a social

group consisting of those targeted by the guerrillas was rejected because it was found to be

inherently circular and failed to account for the cessation of guerilla activity in the country following

the end of the civil war. J.A. 20. Finally, the IJ maintained that nothing in the record indicated that

the widespread societal crime occurring in Guatemala was “directed at persons who used to be


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neutral in the civil war, or who resisted the blandishments of the guerrillas.” J.A. 21. For these

reasons, Galicia’s asylum application was denied. His application for withholding of removal was

also denied because of Galicia’s failure to demonstrate a “clear probability” of persecution on

account of a protected ground. J.A. 22.

       The IJ further denied Galicia cancellation of removal because he found that Galicia’s

removal would not result in “exceptional and extremely unusual hardship” to his U.S. citizen

daughter, Kayla. J.A. 22-23. In reaching this conclusion, the IJ found that Galicia’s wife, Rosio,

a Mexican national, could accompany the family to Guatemala and care for Kayla. J.A. 24. The

IJ emphasized that Galicia had extensive family in Guatemala and that he could secure employment

on his father’s farm as he had before he left Guatemala. J.A. 25. It was further established that

although Kayla would likely receive “diminished educational opportunity” in Guatemala, she still

would not suffer “exceptional and extremely unusual hardship” under In re Andazola-Rivas, 23 I.

& N. Dec. 319, 323 (BIA 2002). J.A. 25-26.

       The IJ concluded his opinion by granting Galicia’s request for voluntary departure. J.A. 26.

                                     D. The BIA’s Decision

       On December 5, 2008, the BIA dismissed Galicia’s appeal on all grounds. J.A. 3-4. First,

it adopted and affirmed the IJ’s determination that Galicia had not demonstrated a well-founded fear

of persecution. J.A. 3. The BIA specifically agreed that attempted conscription by the guerrillas

did not constitute persecution on account of a protected ground under Elias-Zacharias, 502 U.S.

478. J.A. 3. The BIA further noted that the beating of Galicia’s grandfather did not establish

persecution of Galicia. Id. Given the absence of past persecution, the BIA also denied Galicia


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humanitarian asylum relief pursuant to In re Chen, 20 I. & N. Dec. 16 (BIA 1989). To the extent

the presumption of a well-founded fear of persecution existed due to past persecution, the BIA found

that conditions in Guatemala had significantly changed for the better since Galicia left the country.

See J.A. 3. As a result, the BIA concluded that Galicia was not eligible for asylum, nor for

withholding of removal due to its more stringent “clear probability of persecution” standard. See

J.A. 4.

          The BIA also concurred with the IJ’s decision to deny Galicia cancellation of removal based

on a failure to establish “exceptional and extremely unusual hardship” with respect to his daughter.

Id. In particular, the BIA rejected Galicia’s assertions that he would be unable to support his

daughter or that she would be subject to extreme poverty in Guatemala, pointing out that Galicia was

young, healthy, and able to work on his family farm. Id. Furthermore, the BIA echoed the IJ’s view

that “diminished educational opportunities” for Kayla in Guatemala did not amount to “exceptional

and extremely unusual hardship.” Id. Based on a cumulative review of the relevant hardship

factors, the BIA concluded that Galicia did not demonstrate that “his removal would result in

hardship to his United States citizen child that is substantially beyond that which ordinarily would

be expected to result from an alien’s removal.” Id.

                                                  II.

          “When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that opinion, as

supplemented by the BIA, becomes the basis for review.” Zhao v. Holder, 569 F.3d 238, 246 (6th

Cir. 2009). While the Court reviews legal conclusions de novo, factual determinations are reviewed

under a substantial evidence standard. Id. We must uphold the BIA’s factual determinations if


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“supported by reasonable, substantial, and probative evidence on the record considered as a whole.”

Id. at 247 (citation and quotation marks omitted). “Under this deferential standard, we may not

reverse the Board’s or the immigration judge’s determination simply because we would have

decided the matter differently.” Kaba v. Mukasey, 546 F.3d 741, 747 (6th Cir. 2008) (citation and

quotation marks omitted). “Rather, to overturn such a factual determination, ‘we must find that the

evidence not only supports [a contrary] conclusion, but compels it.’” Id. (quoting Elias-Zacarias,

502 U.S. at 481 n.1).

                                                  III.

        To establish eligibility for asylum, Galicia must demonstrate that he qualifies as a refugee.

8 C.F.R. § 1208.13(b); see 8 U.S.C. § 1158(b)(1)(A). A “refugee” is defined as an alien “who is

unable or unwilling to return to [his or her country of nationality], and is unable or unwilling to avail

himself or herself of the protection of, that country because of [past] persecution or a well-founded

fear of [future] persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Once an alien demonstrates that he

or she is a refugee, the Attorney General has the discretion to grant the applicant asylum. 8 U.S.C.

§ 1158(b)(1)(A).

        “[T]he conduct on which the application for asylum is based must go beyond what might

reasonably be characterized as mere harassment” to constitute persecution. Gilaj v. Gonzales, 408

F.3d 275, 285 (6th Cir. 2005) (per curiam). Our Court has emphasized that persecution “does not

encompass all treatment that our society regards as unfair, unjust, or even unlawful or

unconstitutional.” Lumaj v. Gonzalez, 462 F.3d 574, 577 (6th Cir. 2006) (quoting Fatin v. INS, 12


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F.3d 1233, 1240 (3d Cir. 1993)). Moreover, “‘persecution’ within the meaning of 8 U.S.C. §

1101(a)(42)(A) requires more than a few isolated incidents of verbal harassment or intimidation,

unaccompanied by any physical punishment, infliction of harm, or significant deprivation of

liberty.” Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998); see also Ndrecaj v. Mukasey, 522

F.3d 667, 674 (6th Cir. 2008).

         Galicia argues the IJ and the BIA erred in concluding that his allegations of harm did not

rise to the level of “persecution.” In support of this claim, he calls attention to the death threats he

and his family members received from guerrillas during the civil war. J.A. 33. This Court has

consistently held that mere threats or verbal intimidation are insufficient to establish persecution for

the purposes of § 1101(a)(42)(A). See Mikhailevitch, 146 F.3d at 390. As we have previously

stated, “conduct must rise above mere harassment [to establish persecution]. Types of actions that

might cross the line from harassment to persecution include: detention, arrest, interrogation,

prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or

torture.” Zacarias v. Gonazles, 232 F. App’x 458, 462 (6th Cir. 2007) (citations and internal

quotation marks omitted). Galicia does not offer any evidence of such harm.

       Galicia also relies on the guerrillas’ beating of his grandfather to support his own case for

persecution. Although he acknowledges applicants may not “rely solely on the persecution of [his]

family members to qualify for asylum,” see Akhtar v. Gonzalez, 406 F.3d 399, 406 (6th Cir. 2005)

(citation omitted), he nevertheless contends that the threats he received from guerrillas, when

combined with the beating inflicted upon his grandfather, established that he was a victim of past

persecution. Galicia has not offered any authority that compels a finding of persecution based on


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threats of physical violence, even if coupled with harm suffered by family members. We find that

Galicia’s allegations do not compel a finding of past persecution in light of the high bar set by our

precedent.

       Given the absence of “past persecution,” we deny a fortiori Galicia’s claim for humanitarian

asylum under 8 C.F.R. § 1208.13(b)(1)(iii)(A) as its permits relief only in instances where the past

persecution is “particularly severe.” See Pergega-Gjonaj v. Gonazlez, 128 F. App’x 507, 509, 512

(6th Cir. 2005) (finding past persecution of petitioners through four months of starvation and hard

labor, in addition to their witnessing atrocities committed against family members, including murder

and severe beatings, was insufficient to warrant humanitarian asylum relief).

       Because the record does not compel finding that Galicia was a “refugee” under §

1101(a)(42)(A), we affirm the BIA’s order denying asylum.2 We further affirm the BIA’s denial

of relief under 8 U.S.C. § 1231(b)(3) for withholding of removal given that Galicia cannot establish

eligibility under the less “stringent standard” used for asylum claims. See Liti v. Gonzales, 411 F.3d

631, 641 (6th Cir. 2005).

                                                 IV.

       Galicia also challenges the BIA’s denial of his application for cancellation of removal. An

individual qualifies for cancellation of removal if he: (1) has remained physically in the United

States for a continuous of period of not less than ten years; (2) has been of good moral character


       2
         An asylum applicant may also secure relief from removal based on a “well-founded fear of
persecution.” See 8 U.S.C. § 1101(a)(42)(A). Galicia, however, does not include any argument
related to this issue in his brief. By failing to develop this theory, Galicia waived the “well-founded
fear of persecution” issue on appeal. See Shkabari v. Gonzalez, 427 F.3d 324, 327 n.1 (6th Cir.
2005).

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during that period; (3) has not been convicted of certain criminal offenses; and (4) establishes that

removal would result in “exceptional and extremely unusual hardship” to his spouse, parent, or child

who is a citizen or lawful permanent resident of the United States. 8 U.S.C. § 1229b(b)(1); Santana-

Albarran v. Ashcroft, 393 F.3d 699, 702 (6th Cir. 2005). The government retains discretion to deny

relief even if the applicant satisfies all four elements. See id. In this case, the BIA, agreeing with

the IJ, held that Galicia did not meet his burden of proof because it found his three year old daughter

Kayla, a United States citizen, would not suffer “exceptional and extremely unusual” hardship as

a result of Galicia’s removal to Guatemala. J.A. 4, 22-26.

                                           A. Jurisdiction

        Galicia’s claim for cancellation of removal raises a threshold question of jurisdiction. The

Court generally lacks jurisdiction to review the BIA’s determinations regarding cancellation of

removal under 8 U.S.C. § 1252(a)(2)(B)(i). In addition, 8 U.S.C. § 1252(a)(2)(B)(ii), bars our

consideration of any discretionary decision made in immigration cases, other than those relating to

applications for asylum.3 Based on these principles, the government argues we cannot revisit the

BIA’s ruling on Galicia’s cancellation of removal claim. See Santana-Albarran, 393 F.3d at 703

(stating § 1252(a)(2)(B) “specifically divests jurisdiction of a court to review judgments regarding

the granting of discretionary relief, including the cancellation of removal”); Valenzuela Alcantar v.



        3
          8 U.S.C. § 1252(a)(2)(B) states in relevant part, “no court shall have jurisdiction to review--
(i) any judgment regarding the granting of relief under section . . . 1229b [pertaining to cancellation
of removal] of this title, or (ii) any other decision or action of the Attorney General or the Secretary
of Homeland Security the authority for which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary of Homeland Security, other than the granting
of relief under section 1158(a) [pertaining to asylum] of this title.”

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INS, 309 F.3d 946, 949-50 (6th Cir. 2002) (holding administrative determination regarding extreme

hardship under prior, less stringent, “suspension of deportation” standard is considered a

discretionary issue and not subject to judicial review).

        This Court has carved out an exception to the jurisdictional bar created by § 1252(a)(2)(B),

however, when the petitioner claims the BIA ignored its own precedent in making its hardship

determination. Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir. 2008). Aburto-Rocha

specifically held that “the choice by the BIA to disregard its own binding precedent-even when

deciding an issue that is within its discretion-is not itself a discretionary decision Congress has

excluded from review.” Id. Accordingly, in Aburto-Rocha, we found this Court had jurisdiction

to review the petitioner’s claim that the BIA failed to follow its own precedent in deciding the

hardship prong. Id.

        As with the petitioner in Aburto-Rocha, Galicia contends that the IJ, and, by extension, the

BIA, failed to properly apply In re Recinas, 23 I. & N. Dec. 467 (BIA 2002), when evaluating his

cancellation of removal application. Specifically, Galicia argues, “[t]he IJ made numerous errors

in evaluation of the hardship involved . . . . Despite the IJ’s conclusion to the contrary, Mr. Galicia’s

case is very similar to the respondent in In re Recinas.” Galicia Br. 15. Rather than merely

challenge the discretionary matter of weighing of the evidence, Galicia effectively contends the

agency ignored its own precedent in arriving at its conclusion. This argument provides us with

jurisdiction to review Galicia’s petition. See Aburto-Rocha, 535 F.3d at 503.

                                              B. Merits




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       While we may review claims that the BIA disregarded its own precedent in finding lack of

extreme hardship, we cannot “second guess every choice the agency makes about how to apply

uncertain or even conflicting precedents in a given context.” Id. Agency interpretations of its own

precedent are entitled to “considerable deference.” Id. Thus, the pertinent question is whether the

“BIA reasonably construed and applied it own precedents” in making the hardship determination,

not whether the Court would have made a different determination had we reviewed the case in the

first instance. See id. (emphasis added).

       The “exceptional and extremely unusual hardship” element requires that Galicia provide

evidence of harm to his United States citizen daughter that is “substantially beyond that which

ordinarily would be expected to result” from the alien’s deportation. See In re Monreal-Aguinaga,

23 I. & N. Dec. 56, 59 (BIA 2001) (quoting H.R. Rep. No. 104-828, at 213 (1996) (Conf. Rep.)

(emphasis added)). The BIA and IJ relied on the three seminal BIA cases relating to exceptional

and extremely unusual hardship in concluding Galicia had not met his burden of proof: (1) In re

Monreal, 23 I. & N. Dec. 56; (2) Andazola, 23 I. & N. Dec. 319; and (3) Recinas, 23 I. & N. Dec.

467.

       The IJ stated that under Monreal, it was instructed to consider “family ties to the United

States and abroad, length of residence in the country, the health of the United States citizen child,

possibility of other means of adjustment, and the respondent’s involvement in the community in

deciding whether or not to grant cancellation of removal.” J.A. 23. It is important to add that,

“[f]actors relating to the applicant himself or herself can only be considered insofar as they may

affect the hardship to a qualifying relative.” Monreal, 23 I. & N. Dec. at 63. Monreal specifically


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instructs the immigration court to consider the “ages, health, and circumstances” of the qualifying

relatives. Id.

        Review of the BIA and IJ opinions demonstrates that both applied the above factors in a

manner faithful to BIA precedent. First, the BIA noted that Kayla was in good health. J.A. 4; see

Monreal, 23 I. & N. Dec. at 63 (holding that “very serious health issues, or compelling special needs

in school” for a qualifying child would make a “strong case”). Second, while recognizing that

Galicia and his wife, Rosio, had provided Kayla with a stable home environment, the IJ pointed out

that there was no evidence that Rosio, a Mexican national without legal status in the United States,

could not accompany Galicia to Guatemala and care for Kayla there as well. J.A. 24. Galicia argues

the finding by the IJ is belied by his “credible” testimony that Rosio would not be allowed to enter

Guatemala as an “undocumented alien from Mexico.” See J.A. 42. Accordingly, he claims that

Kayla would be “effectively required to give up one of her parents.” But the significance of the IJ’s

credibility finding is logically limited to subject areas where Galicia has personal knowledge.

Galicia offers no objective evidence in support of his questionable claim that Guatemalan

immigration law bars legal status to the spouse of one of its own citizens. Accordingly, the panel

is not compelled by the record to reverse the IJ’s factual finding that Rosio would be able to join

Galicia in Guatemala if he is removed.

        Galicia also claims extreme hardship based on the limited educational opportunities for

Kayla in Guatemala. This argument is not persuasive. The BIA and IJ correctly found that while

Kayla likely “would suffer a lower standard of education in Guatemala” than in the United States,




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“diminished educational opportunities” are not grounds for “exceptional and extremely unusual

hardship” under BIA precedent. J.A. 25; see Andazola, 23 I. & N. Dec. at 323, 325 n.1.

        In Andazola, the BIA declined to find extreme hardship when the respondent’s native

country of Mexico “aspire[d] to provide 9 years of education to every child,” while providing less

in reality. Id. at 323. Andazola found that although the standard of education available to the

respondent’s children in Mexico was not likely equal to what they might have received in the United

States, the respondent had “not shown that her children would be deprived of all schooling or of an

opportunity to obtain any education.” Id. Andazola reasoned that recognizing “exceptional and

extremely unusual hardship” based on “diminished educational opportunities . . . would mean that

cancellation of removal would be granted in virtually all cases involving respondents from

developing countries who have young United States citizen or lawful permanent resident children.”

Id. at 325 n.1.

        While the BIA and IJ in this case had discretion to construe Andazola narrowly and view it

as establishing a floor with respect to the amount of education a child must receive to avoid

exceptional and extremely unusual hardship, it was not unreasonable to instead interpret Andazola

broadly and apply it to the case at bar. See Aburto-Rocha, 535 F.3d at 503. In other words, it was

not unreasonable for the IJ to hold that six years of promised education was analogous to nine years

for the purposes of extreme hardship. See Andazola, 23 I. & N. Dec. at 325 n.1 (emphasizing “there

ha[d] been no showing that the respondent’s children would be unable to obtain any education in

Mexico.”).




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       Galicia next argues that his daughter will endure extreme hardship because she will suffer

from “extreme poverty” if he is removed. He contends he will be unable to financially support her

working as a farm laborer, the only occupation in which he has work experience in Guatemala. We

are not compelled by the evidence to reverse the BIA’s finding that Kayla will not suffer from

extreme poverty. See J.A. 4. At the time of the immigration hearing in 2008, Galicia was 33 years

old, healthy, and able to work. J.A. 32, 47-48. The BIA has previously relied upon these attributes

in rejecting claims of extreme hardship based on feared poverty. See Andazola, 23 I. & N. Dec. at

320, 324 (finding respondent would be able to support children in Mexico even as a single parent

because she was “young [30 years old] and able to work”). In addition, Galicia testified that he

worked as a laborer on his father’s farm before he left Guatemala. J.A. 47. Despite self-serving

assertions to the contrary, Galicia has not offered any evidence explaining why he could not return

to this job. The fact that his parents live in Guatemala, as well as seven of his siblings, may also

provide a financial safety net that could benefit Kayla. J.A. 42, 45. The lower standard of living,

which Galicia and his daughter may experience, is generally “insufficient in [itself] to support a

finding of exceptional and extremely unusual hardship.” See Monreal, 23 I. & N. Dec. at 63-64.

Accordingly, we do not find that Galicia’s prospective financial situation in Guatemala warrants

reversal of the BIA’s extreme hardship determination regarding Kayla.

       Galicia also contends the IJ and BIA erred in applying Recinas, 23 I. & N. Dec. 467. Galicia

Br. 15. In Recinas, the BIA cited several factors in finding “exceptional and extremely unusual

hardship” on behalf of the respondent’s United States citizen children. 23 I. & N. Dec. at 472. In

relevant part, the BIA noted that the respondent was a single mother with four school-aged children


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– aged 5, 8, 11, and 12 – who were United States citizens, unable to speak Spanish well, and could

not read or write in that language. Id. at 467, 471. In addition, Recinas found it significant that the

children were entirely dependent on their mother’s income generated from her business. Id. at 471.

Finally, the respondent’s family, which included her parents as well as her five siblings, lawfully

resided in the United States and were “instrumental in helping her raise her children and obtain the

necessary funds to establish her business.” Id. at 472. The respondent had no close relatives

remaining in her native country of Mexico. Id. at 469.

        Galicia argues that Recinas is analogous to his situation because Kayla has spent her entire

life in the United States, she is reliant solely on Galicia’s income for financial support, and he owns

his own business. Notwithstanding these limited factual similarities, the BIA and IJ correctly found

Recinas was a materially different case for two basic reasons. J.A 4, 25. First, while the United

States’ citizen children in Recinas were of school-age and unfamiliar with Spanish, Kayla was only

three years old and already spoke Spanish at the time of Galicia’s hearing. J.A 25; Recinas, 23 I.

& N. Dec. at 472. Thus, it stands to reason that Kayla would have a relatively easier time

assimilating after her parent’s removal than the Recinas children. Second, the respondent in Recinas

lacked close family members in her native country that could provide emotional support for her

children. J.A. 4; Recinas, 23 I. & N. Dec. at 471. In stark contrast, Galicia’s parents, as well as

seven of his siblings, still live in Guatemala. It is not unreasonable to believe that these relatives

would be a source of emotional comfort for Kayla. Given these significant distinctions, we find that

the BIA and IJ did not unreasonably construe Recinas in finding an absence of extreme hardship in

this case.


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       At bottom, none of the arguments offered by Galicia demonstrate that the BIA or IJ

“[un]reasonably construed and applied” BIA precedent in finding that Kayla would not suffer

extreme hardship if Galicia was removed to Guatemala. See Aburto-Rocha, 535 F.3d at 503.

Therefore, we cannot grant Galicia cancellation of removal relief.

                                               V.

       For these reasons, we DENY the petition for review and AFFIRM the BIA’s decision.




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