Valerio-Lopez v. Barr

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 16, 2021 _________________________________ Christopher M. Wolpert Clerk of Court JOSE ALEJANDRO VALERIO-LOPEZ, a/k/a Pedro Torres-Gamez, Petitioner, v. No. 20-9588 (Petition for Review) MERRICK B. GARLAND, United States Attorney General, Respondent. _________________________________ ORDER AND JUDGMENT** _________________________________ Before MORITZ, BALDOCK, and KELLY, Circuit Judges. _________________________________ Petitioner Jose Alejandro Valerio-Lopez filed an application for cancellation of removal under 8 U.S.C. § 1229b(b), which an immigration judge (IJ) denied after a hearing. The Board of Immigration Appeals (BIA) affirmed on appeal.  On March 11, 2021, Merrick B. Garland became Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). ** 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Valerio-Lopez then filed a petition for review. We dismiss the petition in part for lack of jurisdiction, and affirm in part the BIA’s decision denying Valerio-Lopez’s application. I. Background Valerio-Lopez is a native of Mexico who last entered the United States without inspection in 2004. In April 2010, the Department of Homeland Security issued Valerio-Lopez a Notice to Appear in removal proceedings, charging him with being subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i). Valerio-Lopez appeared in immigration court in January 2011 and conceded removability. He indicated his intent to apply for cancellation of removal under 8 U.S.C. § 1229b(b)(1). Later that year Valerio-Lopez submitted that application, arguing that his removal would result in hardship to his four U.S.-born children. See id. § 1229b(b)(1)(D). The IJ held a hearing in June 2018. By that time, Valerio-Lopez’s two older children had reached the age of 21 and therefore were not considered qualifying relatives under § 1229b(b)(1)(D). Valerio-Lopez testified, however, that if he were removed to Mexico, his two younger daughters, E.V.M. and A.V.M., would suffer the requisite “exceptional and extremely unusual hardship” under § 1229b(b)(1)(D). He testified that E.V.M., who was born in 2007, had received several months of counseling for anxiety in 2010 when Valerio-Lopez was temporarily placed in immigration detention. Valerio-Lopez submitted a corroborating letter from the licensed professional counselor who treated E.V.M. Valerio-Lopez acknowledged, 2 however, that E.V.M. no longer requires any treatment or medication. He also testified that his youngest daughter, A.V.M., has asthma that was severe at one time but is now controlled with an inhaler. Finally, Valerio-Lopez testified that if he were removed to Mexico his minor daughters would suffer financial hardship because he is the sole financial provider …

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