                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 19a0342n.06

                                           No. 18-3818

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Jul 05, 2019
 DANIEL VALDEZ-ARRIAGA,                                  )                   DEBORAH S. HUNT, Clerk
                                                         )
        Petitioner,                                      )
                                                         )
                                                                 ON PETITION FOR REVIEW
 v.                                                      )
                                                                 FROM THE UNITED STATES
                                                         )
                                                                 BOARD OF IMMIGRATION
 WILLIAM P. BARR, Attorney General,                      )
                                                                 APPEALS
                                                         )
        Respondent.                                      )
                                                         )


       Before: WHITE, BUSH, and LARSEN, Circuit Judges.

       LARSEN, Circuit Judge. An Immigration Judge (IJ) denied Daniel Valdez-Arriaga’s

application for cancellation of removal under 8 U.S.C. § 1229b(b)(1). The IJ found that Valdez-

Arriaga had failed to satisfy three of § 1229b(b)(1)’s requirements: (1) ten years’ continuous

physical presence in the United States; (2) good moral character during that period; and

(3) “exceptional and extremely unusual hardship” to his qualifying United States citizen relatives

resulting from his removal. The BIA affirmed the IJ’s denial of relief on continuous-presence and

hardship grounds, and Valdez-Arriaga petitioned for review. We lack jurisdiction, however, to

review Valdez-Arriaga’s fact-bound challenge to the agency’s hardship determination, and that

determination was not otherwise legally erroneous. Therefore, Valdez-Arriaga cannot establish

eligibility for relief under § 1229b(b)(1), and we must deny his petition for review.

                                                 I.

       A native and citizen of Mexico, Valdez-Arriaga testified that he entered the United States

in 2000 when he was seventeen. Once inside the country, he traveled to Dayton, Tennessee, where
No. 18-3818, Valdez-Arriaga v. Barr


he worked in agriculture. Valdez-Arriaga attested that he has five children who are United States

citizens. He resided with his youngest child, Xitlali, who was born in 2016, and her mother Beatriz

Ponce-Gonzalez. Xitlali was born prematurely and has heart and mobility issues. His other four

children live with their respective mothers, but Valdez-Arriaga has provided them with financial

assistance and has been active in their lives.

       In December 2012, the Department of Homeland Security (DHS) filed a Notice to Appear

(NTA) in Immigration Court, charging Valdez-Arriaga with removability as an alien present in the

United States without admission under 8 U.S.C. § 1182(a)(6)(A)(i). In June 2016, Valdez-Arriaga

conceded the charge of removability in the NTA—that he had entered the country illegally—but

filed an application for cancellation of removal for nonpermanent residents under 8 U.S.C.

§ 1229b(b)(1). To qualify for cancellation of removal, Valdez-Arriaga was required to establish

that (1) he had been continuously present in the United States for ten years immediately preceding

his application, (2) he had been “a person of good moral character” during that time, (3) he had

not been convicted of any specified crimes, and (4) his removal would cause “exceptional and

extremely unusual hardship” to his qualifying United States citizen relatives.           8 U.S.C.

§ 1229b(b)(1)(A)–(D).

       An IJ held a hearing on Valdez-Arriaga’s application in August 2017. Valdez-Arriaga

submitted documentary evidence in support of his application, and both he and Ponce-Gonzalez

testified. Following the hearing, the IJ denied the application for cancellation of removal but

granted Valdez-Arriaga voluntary departure.

       The IJ gave three independently sufficient reasons for denying the application. First, the

IJ held that Valdez-Arriaga had provided inadequate evidence to establish his continuous physical

presence in the United States since 2002—i.e., ten years before DHS commenced removal



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proceedings against him by issuing the NTA.1 Second, the IJ found that Valdez-Arriaga’s

extensive criminal history showed that he had lacked the requisite good moral character during his

residence in the United States.      The IJ emphasized, in particular, Valdez-Arriaga’s recent

misconduct, which included charges for driving under the influence, driving without a license, and

vandalism. The IJ held that this recent criminal history, coupled with Valdez-Arriaga’s prior

offenses, meant that he had not met his burden of establishing good moral character.

       Third, and finally, the IJ denied Valdez-Arriaga’s application because he had not shown

that his removal would cause “exceptional and extremely unusual hardship” to his qualifying

United States citizen children. The IJ noted that Valdez-Arriaga had testified that all his children

would remain in the United States, which “lessens the hardship to the children to some degree.”

And although the children would “lose the care and comfort of their father” and “there will be

undoubtedly some economic hardship,” these consequences are “expected when someone is

removed from the United States” and “do not rise to the level of an exceptional or extremely

unusual hardship.” Regarding the health problems of Valdez-Arriaga’s youngest child, Xitlali, the

IJ carefully reviewed the documentary evidence of her medical history but concluded that “there

simply is insufficient evidence in the record for the court to find that [her] medical hardship would

be an exceptional or extremely unusual hardship” and “that the hardship that she will experience

is offset by the fact that she will remain in the United States and can continue to get treatment by

the doctors that she sees.”

       Valdez-Arriaga appealed to the BIA, challenging the IJ’s continuous-presence, good moral

character, and hardship decisions. The BIA dismissed the appeal, concluding that the IJ had not



1
 To determine eligibility for relief under § 1229b(b)(1)(A), “any period of . . . continuous physical
presence in the United States shall be deemed to end . . . when the alien is served a notice to
appear.” 8 U.S.C. § 1229b(d)(1).
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No. 18-3818, Valdez-Arriaga v. Barr


erred in its continuous-presence and hardship determinations.2 Regarding continuous presence,

the BIA highlighted the “numerous reasons why the documentary evidence is insufficient to

corroborate [Valdez-Arriaga’s] claimed continuous presence in the United States.” The BIA also

thoroughly reviewed the evidence supporting Valdez-Arriaga’s hardship claim.               The BIA

considered the “financial impact” of removal, the “emotional hardship” it would cause, and “the

health needs” of Valdez-Arriaga’s youngest daughter. The BIA concluded that, “[c]onsidering the

record in its entirety, . . . [Valdez-Arriaga] has not shown that his removal would cause hardship

to any of his qualifying relatives that ‘is substantially different from, or beyond, that which would

normally be expected’ as a result of removal.”3

       Valdez-Arriaga timely petitioned for review.

                                                  II.

       Where, as here, the BIA reviews an IJ’s decision and issues its own opinion, rather than

summarily affirming the IJ’s decision, we review the BIA’s opinion. Raja v. Sessions, 900 F.3d

823, 826–27 (6th Cir. 2018). But we also review the IJ’s reasoning to the extent the BIA has

adopted it. Id. at 827.

       Valdez-Arriaga raises two challenges to the BIA’s denial of his appeal. First, he argues

that the BIA erred in concluding that he had not established the requisite ten years’ continuous

physical presence in the United States. Second, Valdez-Arriaga claims that the BIA violated his

due process rights by misapplying its precedent to conclude that he had not made the requisite



2
  Because the continuous-presence and hardship determinations were each independently
dispositive of Valdez-Arriaga’s claim, the BIA found that it was “not necessary to reach the [IJ’s]
determinations regarding good moral character.”
3
  The BIA also declined to reinstate Valdez-Arriaga’s voluntary departure period because he failed
to submit timely proof that he had paid the required bond. Valdez-Arriaga has not petitioned for
review of this decision.
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No. 18-3818, Valdez-Arriaga v. Barr


showing of hardship. The government responds that this court lacks jurisdiction to sustain Valdez-

Arriaga’s challenge to the BIA’s hardship determination and that this dooms the petition for

review. We agree.

          Federal law limits our authority to review cancellation-of-removal denials.         In fact,

Congress has provided that “no court shall have jurisdiction to review . . . any judgment regarding

the granting of relief under . . . [§] 1229b.” 8 U.S.C. § 1252(a)(2)(B)(i). There are, however, two

exceptions to this jurisdictional bar. We retain jurisdiction to review (1) constitutional issues or

questions of law, see id. at § 1252(a)(2)(D); and (2) nondiscretionary decisions underlying the

denial of cancellation of removal, see Aburto-Rocha v. Mukasey, 535 F.3d 500, 502 (6th Cir.

2008).4

          The result of these jurisdictional limitations is that we cannot entertain the argument that

the BIA or the IJ ought to have weighed the evidence differently. This sort of challenge “to the

agency’s weighing of the facts is not within our jurisdiction to review.” Ettienne, 659 F.3d at 519;

id. at 518 (rejecting challenge to cancellation denial because it “would amount to second-guessing

the agency’s weighing of factors, an endeavor that we have repeatedly recognized as beyond our

jurisdiction” in this context).

          No doubt aware of the jurisdictional bar, Valdez-Arriaga styles his challenge to the

agency’s hardship determination as raising a legal question—namely, that the agency misapplied

its published precedents. But even if we were to accept this framing, Valdez-Arriaga’s claim lacks

merit. The only BIA precedent allegedly violated is In re Monreal-Aguinaga, 23 I. & N. Dec. 56,




4
  Although our precedents refer to the “nondiscretionary issues” exception to the jurisdictional bar,
it is worth noting that the exception appears “largely coterminous” with the exception for
“questions of law” under § 1252(a)(2)(D). See Ettienne v. Holder, 659 F.3d 513, 517 (6th Cir.
2011).
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No. 18-3818, Valdez-Arriaga v. Barr


63–64 (B.I.A. 2001), the BIA’s seminal decision developing the standard for what constitutes

“exceptional and extremely unusual hardship” under § 1229b(b)(1)(D).               Monreal-Aguinaga

established an onerous standard: “the hardship to an alien’s relatives . . . must be ‘substantially’

beyond the ordinary hardship that would be expected when a close family member leaves this

country. Cancellation of removal . . . is to be limited to ‘truly exceptional’ situations.” Id. at 62.

In assessing whether hardship rises to this level, it is necessary to “consider the ages, health, and

circumstances of qualifying . . . United States citizen relatives”—here, Valdez-Arriaga’s five

children—and all these “factors should be considered in the aggregate when assessing exceptional

and extremely unusual hardship.” Id. at 63–64.

       Valdez-Arriaga suggests that the agency violated Monreal-Aguinaga by failing to consider

the relevant hardships in the aggregate and by “failing to consider [his] argument concerning the

nature of single-parenting of a handicapped child.” But the BIA expressly made its hardship

determination “[c]onsidering the record in its entirety” and cited Monreal-Aguinaga. Moreover,

the BIA acknowledged that “[t]he infant child [would] naturally experience hardship as her

mother . . . transitions to being the primary caretaker and financial provider[,] . . . particularly

considering that [Valdez-Arriaga] is currently the primary wage-earner for the household.” And

the BIA likewise considered the “health needs of . . . [Xitlali], including a heart condition, kidney

and lung problems, and a problem with her hips that prevents her from walking.” Yet the BIA

concluded that “there is no indication that these conditions will be exacerbated by the respondent’s

removal.” The BIA also found no clear error in the IJ’s conclusions on this point, which included

the finding that “the hardship that [Xitlali] will experience is offset by the fact that she will remain

in the United States and can continue to get treatment by the doctors that she sees, and that [Valdez-

Arriaga’s] lack of financial support and lack of family support” would affect Xitlali’s upbringing



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but should not affect “the medical hardships that she may or may not have.” In sum, the contention

that the agency failed to consider the relevant issues or apply the standard required by Monreal-

Aguinaga is baseless. And as explained above, we do not have jurisdiction to second-guess “the

agency’s weighing of the facts.” Ettienne, 659 F.3d at 519.

       Because we lack jurisdiction to overturn the BIA’s hardship determination, Valdez-Arriaga

cannot demonstrate his eligibility for cancellation of removal under § 1229b(b)(1). We need not

address, therefore, his additional claim of error regarding the continuous-presence requirement.

See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts and

agencies are not required to make findings on issues the decision of which is unnecessary to the

results they reach.”); Al-Saka v. Sessions, 904 F.3d 427, 432 (6th Cir. 2018) (declining to reach a

statutory question where it “would make no difference to [the petitioner] either way”).5

                                              ***

       For the foregoing reasons, we DENY the petition for review.




5
  Valdez-Arriaga has filed a motion to reopen with the BIA, arguing in part that, under Pereira v.
Sessions, 138 S. Ct. 2105 (2018), his NTA was defective and did not trigger the end of his
continuous physical presence in the United States. Although Valdez-Arriaga’s motion to reopen
and his Pereira-based claim plainly implicate the continuous-presence issue, they are not subject
to this petition for review.
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