Herrera v. Garland

Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 2, 2022 _________________________________ Christopher M. Wolpert Clerk of Court GERSON REYNOSO HERRERA, Petitioner, v. No. 21-9596 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT* _________________________________ Before TYMKOVICH, BALDOCK, and CARSON, Circuit Judges. _________________________________ The Board of Immigration Appeals (Board or BIA) adopted and affirmed an Immigration Judge’s (IJ) order denying Gerson Reynoso Herrera’s application for cancellation of removal. Mr. Herrera has filed a petition for review. We dismiss the petition in part for lack of jurisdiction and, to the extent we have jurisdiction under 8 U.S.C. § 1252(a), deny the remainder of the petition. * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-9596 Document: 010110762110 Date Filed: 11/02/2022 Page: 2 I. Background Mr. Herrera is a native and citizen of Mexico who entered the United States without admission or inspection in 1998 or 2000. In 2008, the Department of Homeland Security served him a Notice to Appear charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without being admitted or paroled. Mr. Herrera conceded removability as charged and initially applied for an adjustment of status based on his marriage to a U.S. citizen. He later abandoned that application after learning there was a bar to adjustment—Mr. Herrera had reentered the United States in late 2004 or early 2005 falsely claiming to be a U.S. citizen by presenting a United States birth certificate belonging to someone else. Mr. Herrera instead applied for cancellation of removal. After a hearing, the IJ denied cancellation, finding Mr. Herrera failed to demonstrate his removal would cause exceptional and extremely unusual hardship to his U.S.-citizen wife, see 8 U.S.C. § 1229b(b)(1)(D) (requiring a cancellation applicant to establish, among other things, “that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence”). Mr. Herrera appealed that decision to the Board, arguing the IJ failed to consider the effect his wife’s age and her long residency in the United States had on her chances for employment in Mexico and the risk of returning to her hometown there. He also argued the IJ failed to aggregate the factors relevant to the hardship determination and failed to properly acknowledge which factors the IJ …

Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals