Hector Gonzalez-Rivas v. Merrick B. Garland

United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-3364 ___________________________ Hector Gonzalez-Rivas Petitioner v. Merrick B. Garland, Attorney General of the United States Respondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: September 22, 2022 Filed: November 23, 2022 ____________ Before GRUENDER, SHEPHERD, and ERICKSON, Circuit Judges. ____________ ERICKSON, Circuit Judge. Hector Gonzalez-Rivas, a native and citizen of Guatemala, applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(1). He has three children, who were 19, 10, and 5 years old at the time of the merits hearing in April 2017. The immigration judge denied Gonzalez-Rivas’s application. The Board of Immigration Appeals (“BIA”) dismissed his appeal, and Gonzalez-Rivas timely petitioned for review of the BIA’s decision. We dismiss the petition. To qualify for cancellation of removal, an alien must show: (1) continuous physical presence in the United States for at least 10 years; (2) good moral character; (3) no convictions of certain crimes; and (4) removal would result in “exceptional and extremely unusual hardship” to a qualifying relative. Apolinar v. Barr, 945 F.3d 1072, 1074 (8th Cir. 2019) (citing 8 U.S.C. § 1229b(b)(1)). At issue is only the fourth prong—the BIA’s determination that Gonzalez-Rivas’s removal from the United States would not result in exceptional and extremely unusual hardship to his children. Because cancellation of removal is a “discretionary form of relief,” Ali v. Barr, 924 F.3d 983, 985 (8th Cir. 2019), our jurisdiction is limited, Rodriguez v. Barr, 952 F.3d 984, 989-90 (8th Cir. 2020). We have jurisdiction to review constitutional claims and questions of law. Id. at 990; 8 U.S.C. § 1252(a)(2)(D). However, federal courts are without jurisdiction “to review facts found as part of discretionary-relief proceedings.” Patel v. Garland, 142 S. Ct. 1614, 1627 (2022). The phrase “questions of law” set forth in § 1252(a)(2)(D) extends to mixed questions of law and fact involving the proper “application of a legal standard to undisputed or established facts.” Guerrero Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020). To invoke our jurisdiction, Gonzalez-Rivas frames his issues as constitutional or legal errors. Specifically, he contends the Court must vacate the BIA decision because (1) he has a Fifth Amendment due process right to the care, custody, and control of his minor children; (2) the BIA should shift to a “best interests” analysis that considers the adverse emotional and financial effects on children caused by the permanent separation of a removed parent; and (3) the BIA abused its discretion or misapplied the hardship standard by citing to Matter of Pilch, 21 I&N Dec. 627, 631 (BIA 1996)—a case in which the hardship was not a parent permanently leaving his children, but a family being removed and separated from extended family residing in the United States. -2- Gonzalez-Rivas has provided no authority allowing us to direct the BIA to implement a new analytical standard for exceptional and extremely unusual hardship. To the extent Gonzalez-Rivas claims the BIA misapplied the applicable hardship standard—a …

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