Submitted: November 14, 2019
Petition for Review of an Order of the Board of Immigration
SHEPHERD, GRASZ, and KOBES, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
consolidated appeal, Alvaro Blas Apolinar petitions for
review of the Board of Immigration Appeals's (BIA) denial
of his application for cancellation of removal and denial of
his motion to reopen or reconsider. We dismiss his petition
for review of his application for cancellation of removal for
lack of jurisdiction. Having jurisdiction under 8 U.S.C.
§ 1252(a), we deny his petition for review of his motion
to reopen or reconsider.
Blas Apolinar, a citizen of Mexico, entered the United States
in 1998 without being inspected or admitted by an immigration
officer. After arriving in the country, he worked in Sedalia,
Missouri for several years. He also has two minor children
who are United States citizens. In 2010, Blas Apolinar was
placed in removal proceedings when the Department of Homeland
Security (DHS) filed a Notice to Appear (NTA) with an
immigration court. The NTA charged him with removability for
being present in the United States without admission or
parole by an immigration officer, but it did not provide the
date and time of his hearing. Instead, the NTA simply
indicated that a hearing date and time would be set.
Apolinar eventually received notice of a hearing scheduled
for March 10, 2011, which he attended. At the hearing, he
admitted the allegations contained in the NTA and conceded
removability. Although an Immigration Judge (IJ) granted his
request for voluntary departure, Blas Apolinar later moved to
reopen the proceedings so that he could apply for
cancellation of removal. The IJ granted this motion. On
September 9, 2011, Blas Apolinar filed his application for
cancellation of removal on the grounds that removal to Mexico
would result in exceptional and extremely unusual hardship
for his children. Specifically, he asserted that his removal
would result in his family facing economic hardship, should
they remain in the United States, as he is the sole provider
for his wife and children. He also argued that if his family
were to accompany him to Mexico, his children would face
significant hardship because they have limited Spanish
language abilities, they would be unable to enjoy the same
educational opportunities as they have in the United States,
and they could be at risk due to the rampant crime and gang
violence that is prevalent in the region of Mexico where Blas
Apolinar would return. Following a hearing on the
application, an IJ granted his application for cancellation
of removal on June 14, 2017 after finding that if Blas
Apolinar's children went to Mexico with him, they would
suffer "exceptional and extremely unusual"
hardship. DHS appealed the IJ's decision to the BIA,
which later sustained the appeal, vacated the IJ's
decision, and denied Blas Apolinar's application. Blas
Apolinar then timely filed a petition for review in this
September 10, 2018, Blas Apolinar also filed a motion to
reopen or reconsider with the BIA. Specifically, he argued
that, in light of the Supreme Court's decision in
Pereira v. Sessions, 138 S.Ct. 2105 (2018), the BIA
should rescind the removal order and terminate the case, or,
alternatively, remand for additional fact finding. The BIA
denied his motion. Blas Apolinar timely filed a petition for
review of that decision in this Court, and both of his
petitions were consolidated for appeal.
first consider Blas Apolinar's argument that the BIA
erred in denying his application for cancellation of removal.
Aliens in removal proceedings may, under certain circumstan
ces, be eligible for a "discretionary form of relief
called cancellation of removal." Ali v. Barr,
924 F.3d 983, 985 (8th Cir. 2019). In order to qualify, Blas
Apolinar must show: (1) continuous physical presence in the
United States for at least ten years; (2) good moral
character; (3) that he has not been convicted of certain
crimes; and (4) that his "removal would result in
exceptional and extremely unusual hardship" to a
qualifying relative. 8 U.S.C. § 1229b(b)(1). For the
purposes of this appeal, the only issue is whether Blas
Apolinar satisfied the last requirement-that his removal
would cause "exceptional and extremely unusual
hardship" to his minor children.
generally lack jurisdiction to consider the agency's
discretionary determination that an alien failed to show an
"exceptional and extremely unusual hardship" so as
to qualify for cancellation of removal. See Solis v.
Holder, 647 F.3d 831, 833 (8th Cir. 2011) (noting that
this Court lacks jurisdiction over this issue); see
also 8 U.S.C. § 1252(a)(2)(B)(i)
("Notwithstanding any other provisions of law . . . no
court shall have jurisdiction to review any judgment
regarding the granting of [cancellation of removal] relief
under section . . . 1229b."). We do, however, have
jurisdiction to review a constitutional challenge or question
of law related to this determination. See 8 U.S.C.
§ 1252(a)(2)(D) ("Nothing in subparagraph (B) . . .
shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accordance with
this section."); Solis, 647 F.3d at 832
("[T]his court has jurisdiction of constitutional claims
or questions of law raised upon a petition for review."
(internal quotation marks omitted)). Such review is de novo.
Ortega-Marroquin v. Holder, 640 F.3d 814, 818 (8th
Blas Apolinar asserts that the BIA failed to follow its own
precedent in In re Gonzales Recinas, 23 I. & N.
Dec. 467 (BIA 2001), because the level of hardship faced by
Blas Apolinar is similar to that of the respondent in that
case. He essentially argues that the facts of Gonzales
Recinas are similar enough to those in his case such
that the BIA should have accounted for the hardship factors
in the same way in both cases. Although framed as a legal
question, this argument is actually a challenge to how the
BIA weighed the relevant hardship factors in this case. We
lack jurisdiction to consider such a challenge. See
Salas-Caballero v. Lynch, 786 F.3d 1077, 1078 (8th Cir.
2015) (dismissing petition for lack of jurisdiction where
alien argued that "the BIA committed an error of law by
improperly applying its prior decisions" in determining
whether removal would cause an exceptional and extremely
unusual hardship); Hamilton v. Holder, 680 F.3d
1024, 1027 (8th Cir. 2012) ("Since [petitioner's]
hardship argument is essentially a challenge to the BIA's
weighing of evidence, we lack jurisdiction to review
Blas Apolinar argues that the BIA committed legal error in
finding that the economic hardship and educational factors,
considered in isolation, were insufficient to satisfy the
"exceptional and extremely unusual hardship"
requirement. Instead, he asserts that these were relevant
hardship factors that should have been considered in the
aggregate, not separately, and they should ...