Saul Lopez Martinez v. U.S. Attorney General

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12057

Non-Argument Calendar

____________________

SAUL LOPEZ MARTINEZ,

HERIBERTA PEREZ TOVAR,

Petitioners,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A089-711-734

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2 Opinion of the Court 23-12057

____________________

Before JORDAN, ROSENBAUM, and LAGOA, Circuit Judges.

PER CURIAM:

Saul Lopez Martinez and Heriberta Perez Tovar, husband

and wife, petition for review of the Board of Immigration Appeals’s

(“BIA”) order affirming the Immigration Judge’s (“IJ”) denial of

their applications for cancellation of removal under 8 U.S.C.

§ 1229b. After careful review, we deny the petition.

I.

Lopez Martinez and Perez Tovar are natives and citizens of

Mexico who entered the United States in 2004 without admission

or parole by an immigration officer. In 2019, the Department of

Homeland Security initiated removal proceedings, charging them

as removable for being present in the United States without author-

ization. See 8 U.S.C. § 1182(a)(6)(A)(i). Through counsel, they ad-

mitted the allegations and conceded removability.

Lopez Martinez and Perez Tovar filed separate applications

for cancellation of removal. They both requested cancellation on

grounds that their removal would result in exceptional and ex-

tremely unusual hardship to their eldest child, J.L., who was a

United States citizen. They attached to their applications, among

other documents, medical records indicating that J.L. had been di-

agnosed with attention-deficit hyperactivity disorder (“ADHD”), a

learning disorder, and an anxiety disorder. He had been prescribed

the medication Vyvanse, which is used to treat ADHD. They also

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23-12057 Opinion of the Court 3

submitted evidence regarding the availability of medical care for

ADHD in Mexico.

At the merits hearing in January 2020 before an IJ, Lopez

Martinez and Perez Tovar testified in support of their applications.

Perez Tovar testified that J.L. had been diagnosed with ADHD,

learning disabilities, and social disabilities in 2016, when he was

nine years old. He received therapy once a month and was pre-

scribed the medication Vyvanse, which he took once a day during

the week to treat his ADHD. He did not receive special accommo-

dations in school. Vyvanse cost approximately $300 without insur-

ance, but J.L.’s insurance paid for it. In Mexico, Vyvanse cost ap-

proximately 1,700 pesos, which was $300. Her husband would

only be able to make 6,000 pesos per month in Mexico. Perez To-

var was worried that J.L’s health would be affected in Mexico be-

cause they would not be able to buy his medication there. She did

not believe that J.L., who was born in the United States, would be

covered by public health insurance in Mexico. Lopez Martinez tes-

tified to essentially the same facts as Perez Tovar.

The IJ denied Lopez Martinez’s and Perez Tovar’s applica-

tions for cancellation of removal and ordered them removed. The

IJ found that their testimony was credible and that they had met all

conditions for cancellation of removal except for the hardship

showing. As to hardship, the IJ concluded that J.L.’s medical con-

ditions did not rise to the level of a “serious medical condition” un-

der the BIA’s precedent. The IJ noted that J.L.’s ADHD was being

controlled with Vyvanse, which was available in Mexico, and there

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4 Opinion of the Court 23-12057

was no evidence suggesting that therapy was unavailable in Mex-

ico.

The IJ further explained that both Lopez Martinez and Perez

Tovar could work and make enough money to support their family

in Mexico, adding that they had not checked whether J.L, as a

United States citizen born to two Mexican citizens, would be eligi-

ble for public health insurance there. The IJ also found that there

was no hardship in having J.L. leave the Florida school system, nor

was there any issue of potential family separation since the testi-

mony was that the “whole family would stay together.”

The IJ concluded that, although Lopez Martinez and Perez

Tovar had demonstrated “some type of extreme hardship” based

on J.L.’s ADHD, the hardship did not rise to the level of “excep-

tional and extremely unusual,” mainly “due to the lower cost of

medicine in Mexico and the availability of care in Mexico for their

son’s ADHD diagnosis.” Considering the evidence “individually

and cumulatively,” the IJ concluded that they had failed “to estab-

lish that their qualifying relative would suffer a hardship that is sub-

stantially different from or beyond that which would normally be

expected to result from the removal or deportation of an alien with

close family members in the United States.” So the IJ denied the

applications for cancellation of removal.

Lopez Martinez and Perez Tovar appealed the IJ’s decision

to the BIA. In their joint brief to the BIA, they argued that their

case should be remanded for further consideration in light of Matter

of J-J-G-, 27 I. & N. Dec. 808 (BIA 2020), which was issued shortly

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23-12057 Opinion of the Court 5

after the IJ’s decision and which, in their view, clarified the appro-

priate standard for evaluating a claim of exceptional and extremely

unusual hardship based on the medical condition of a qualifying

relative. They otherwise argued that the IJ made factual and legal

errors in evaluating their evidence.

The BIA affirmed the IJ’s denial of Lopez Martinez’s and Pe-

rez Tovar’s applications for cancellation of removal, stating that it

adopted and affirmed the IJ’s decision. It explained that it agreed

with the IJ’s conclusion that Lopez Martinez and Perez Tovar failed

to establish exceptional and extremely unusual hardship, citing to

Matter of J-J-G-. And it concluded that the IJ’s factual findings were

not clearly erroneous, noting that the IJ had “considered and dis-

cussed the relevant factors . . . based on controlling legal author-

ity,” again citing to Matter of J-J-G-.

II.

We review the decision of the BIA only, except to the extent

that the BIA expressly adopts or agrees with the IJ’s opinion or rea-

soning. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011).

We review de novo arguments that the agency committed legal

error. Jeune v. U.S Att’y Gen., 810 F.3d 792, 799 (11th Cir. 2016).

Section 1229b allows the Attorney General to cancel the re-

moval of a noncitizen who demonstrates these four things: (1) con-

tinuous physical presence in the United States of at least ten years;

(2) good moral character during that period; (3) a lack of certain

criminal convictions; and (4) “exceptional and extremely unusual

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6 Opinion of the Court 23-12057

hardship” to a “spouse, parent, or child” who is a U.S. citizen or

permanent resident. 8 U.S.C. § 1229b(b)(1).

Section 1252(a)(2)(B) states that we are barred from review-

ing “any judgment regarding” certain forms of relief, including can-

cellation of removal under § 1229b. 8 U.S.C. § 1252(a)(2)(B)(i). But

we retain jurisdiction to review “constitutional claims or questions

of law.” Id. § 1252(a)(2)(D). “[T]he statutory phrase ‘questions of

law’ includes the application of a legal standard to undisputed or

established facts, also referred to as mixed questions of law and

fact.” Wilkinson v. Garland, 601 U.S. 209, 217 (2024) (quotation

marks omitted).

While this appeal was pending, the Supreme Court clarified

in Wilkinson that “the application of the statutory ‘exceptional and

extremely unusual hardship’ standard to a given set of facts pre-

sents a mixed question of law and fact” that is reviewable under

§ 1252(a)(2)(D). 1 Id. at 221. That remains true even if the case “re-

quires a close examination of the facts.” Id. at 222. Thus, our con-

trary precedent on this question has been overruled. See Martinez

v. U.S. Att’y Gen., 446 F.3d 1219, 1222–23 (11th Cir. 2006) (“Not-

withstanding Congress’s enactment of § 1252(a)(2)(D), we con-

tinue to lack jurisdiction over the BIA’s purely discretionary deci-

sion that a petitioner did not meet § 1229b(b)(1)(D)’s ‘exceptional

and extremely unusual hardship’ standard.”).

1 At our request, the parties have submitted supplemental briefs addressing the

effect of Wilkinson on this appeal.

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23-12057 Opinion of the Court 7

Nonetheless, “a court is still without jurisdiction to review a

factual question raised in an application for discretionary relief.”

Wilkinson, 601 U.S. at 222. Thus, “an IJ’s factfinding on credibility,

the seriousness of a family member’s medical condition, or the

level of financial support a noncitizen currently provides remain

unreviewable.” Id. at 225. But “[w]hen an IJ weighs those found

facts and applies the ‘exceptional and extremely unusual hardship’

standard, . . . the result is a mixed question of law and fact that is

reviewable under § 1252(a)(2)(D).” Id. at 222. “Because this mixed

question is primarily factual, that review is deferential.” Id. at 225.

III.

“[T]he exceptional and extremely unusual hardship require-

ment is governed by BIA precedent.” Flores-Alonso v. U.S. Att’y

Gen., 36 F.4th 1095 (11th Cir. 2022), abrogated on other grounds by

Wilkinson v. Garland, 601 U.S. 209 (2024); see Matter of J-J-G-, 27 I. &

N. Dec. 808 (BIA 2020); Matter of Monreal-Aguinaga, 23 I. & N. Dec.

56 (BIA 2001); Matter of Andazola-Rivas, 23 I. & N. Dec. 319 (BIA

2002); Matter of Gonzalez Recinas, 23 I. & N. Dec. 467 (BIA 2002).

According to the BIA, the hardship to the applicant’s qualifying rel-

atives, if the applicant is forced to leave the United States, “must be

‘substantially’ beyond the ordinary hardship that would be ex-

pected when a close family member leaves this country.” Matter of

Monreal, 23 I. & N. Dec. at 62.

In assessing hardship, the BIA considers several factors, in-

cluding the “ages, health, and circumstances” of qualifying rela-

tives. Id. at 63. There is no “fixed definition of what constitutes

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8 Opinion of the Court 23-12057

exceptional and extremely unusual hardship,” but the BIA has of-

fered a few examples for guidance. Flores-Alonso, 36 F.4th at 1097.

For instance, “an applicant who has elderly parents in this country

who are solely dependent upon him for support might well have a

strong case.” Matter of Monreal, 23 I. & N. Dec. at 63. So too might

an applicant who has a “qualifying child with very serious health

issues, or compelling special needs in school.” Id. But a “lower

standard of living or adverse country conditions in the country of

return,” while relevant to the inquiry, “generally will be insuffi-

cient in themselves to support a finding of exceptional and ex-

tremely unusual hardship.” Id. at 63–64. Nonetheless, “all hardship

factors should be considered in the aggregate when assessing ex-

ceptional and extremely unusual hardship.” Id. at 64.

In Matter of J-J-G-, issued after the IJ’s decision in this case,

the BIA clarified the showing required for cancellation applications

based on the health of a qualifying relative. See 27 I. & N. Dec. at

811–12. The BIA explained that an applicant basing a claim on the

health of a qualifying relative “needs to establish that the relative

has a serious medical condition and, if he or she is accompanying

the applicant to the country of removal, that adequate medical care

for the claimed condition is not reasonably available in that coun-

try.” Id. at 811. Thus, the IJ must evaluate the “seriousness of a

qualifying relative’s medical condition and the reasonable availabil-

ity of medical care in the country of removal.” Id. Nonetheless,

Matter of J-J-G- reiterated that the hardship determination is “based

on a cumulative consideration of all hardship factors.” Id.

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Lopez Martinez and Perez Tozar raise several interrelated

errors based on Matter of J-J-G-. They argue that the BIA erred

when it adopted the IJ’s decision and determined that the IJ’s deci-

sion was correct under “controlling legal authority,” specifically,

Matter of J-J-G-, because Matter of J-J-G- was not in effect at the time

of the IJ’s decision. They assert that the BIA failed to remand their

case to the IJ for further consideration under Matter of J-J-G- in the

first instance, noting that, instead, the BIA decided for itself

whether they met their burden under Matter of J-J-G-, and arguing

that constituted improper factfinding. They contend that, as a re-

sult, their applications were not considered under the correct legal

standard, and the BIA did not provide a reasoned explanation as to

why it departed from its established precedent or engaged in im-

proper factfinding, which was an abuse of discretion. All these ar-

guments are questions of law or mixed questions of law and fact

that we have jurisdiction to review under § 1252(a)(2)(D). See Wil-

kinson, 601 U.S. at 221–22.

Here, the BIA did not commit legal error by adopting and

affirming the IJ’s opinion without remanding for consideration un-

der Matter of J-J-G-. Contrary to Petitioners’ claim, Matter of J-J-G-

did not state a new legal standard because it neither overruled nor

conflicted with existing BIA precedent on the standard for excep-

tional and extremely unusual hardship. The discussion of the hard-

ship standard in Matter of J-J-G- was the same as that in Matter of

Monreal, which is evident because Matter of Monreal is quoted mul-

tiple times and the discussions of the relevant hardship standard

were almost identical in both cases. See Matter of J-J-G-, 27 I. & N.

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10 Opinion of the Court 23-12057

Dec. at 811–14; Matter of Monreal, 23 I. & N. Dec. at 63–64. And

Matter of J-J-G- reiterated that “[t]he exceptional and extremely un-

usual hardship for cancellation of removal is based on a cumulative

consideration of all hardship factors.” 27 I. & N. Dec. at 811–12. In

sum, while Matter of J-J-G- clarified aspects of a cancellation appli-

cant’s evidentiary burden, it did not change the “cumulative” anal-

ysis immigration judges apply in hardship cases or the ultimate

standard applicants must meet. See id. at 814.

Moreover, the IJ’s findings and analysis are fully consistent

with Matter of J-J-G-. The IJ considered and made findings about

both the seriousness of J.L.’s medical condition and the availability

of treatment in Mexico as part of its cumulative hardship analysis.

See Matter of J-J-G-, 27 I. & N. Dec. at 811, 814; Matter of Monreal, 23

I. & N. Dec. at 63. The IJ concluded that J.L.’s medical conditions

did not rise to the level of a “serious medical condition,” noting that

his ADHD was being controlled with the medication Vyvanse. See

Matter of J-J-G-, 27 I. & N. Dec. at 811. The IJ also found that

Vyvanse was available in Mexico, that Lopez Martinez and Perez

Tovar would be able to afford that medication, that there was no

evidence suggesting that therapy was unavailable in Mexico, and

that they did not show that J.L. would be ineligible for public

healthcare in Mexico. See id. at 812 (finding “no indication that [the

qualifying relative] will be unable to continue treatment if the re-

spondent is removed”). We lack jurisdiction to review these fac-

tual findings, see Wilkinson, 601 U.S. at 222, which support the IJ’s

ultimate conclusion that the hardship to J.L. was not “substantially

different from or beyond that which would normally be expected

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to result from the removal or deportation of an alien with close

family members in the United States.” See Matter of J-J-G-, 27 I. &

N. Dec. at 814; Matter of Monreal, 23 I. & N. Dec. at 62.

For these reasons, Lopez Martinez and Perez Tovar have

not shown that Matter of J-J-G- reflected a change in the decisional

law applied by the IJ to evaluate the hardship to their qualifying

relative. The IJ’s decision was consistent with controlling authority

at the time and with the later-issued Matter of J-J-G-. It follows that

the BIA, in affirming the IJ’s hardship determination, did not apply

the wrong hardship standard, apply the wrong standard of review,

make improper factual findings, or fail to follow its own precedent.

In sum, the BIA did not commit any legal error by adopting

and affirming the IJ’s denial of petitioners’ applications for cancel-

lation of removal without remanding for the IJ to consider Matter

of J-J-G-.

PETITION DENIED.