Milton Argueta v. Attorney General United States of America

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 23-1277

___________

MILTON HUMBERTO ARGUETA,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A205-016-477)

Immigration Judge: Leila McNeill Mullican

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Submitted Pursuant to Third Circuit LAR 34.1(a)

October 21, 2024

Before: BIBAS, PORTER, and MONTGOMERY-REEVES, Circuit Judges

(Opinion filed: October 23, 2024)

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OPINION *

___________

PER CURIAM

Milton Humberto Argueta, a citizen of Guatemala who is proceeding pro se,

petitions for review of a decision of the Board of Immigration Appeals (“BIA”) that

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.

dismissed his appeal of an Immigration Judge’s denial of his request for cancellation of

removal under 8 U.S.C. § 1229b(b)(1). We will dismiss the petition for review in part

and deny it in part.

The Government charged Argueta with inadmissibility as a noncitizen who was

present in the United States without having been admitted or paroled. See 8 U.S.C.

§ 1182(a)(6)(A)(i). He applied for cancellation of removal. See 8 U.S.C. § 1229b(b). A

nonpermanent resident like Argueta is statutorily eligible for such discretionary relief if

he demonstrates: (1) physical presence in the United States for a continuous period of

not less than ten years; (2) good moral character during that time; (3) no convictions for

certain enumerated offenses; and (4) “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.” 8 U.S.C.

§ 1229b(b)(1)(A)-(D).

The parties agreed that Argueta met the first three requirements, but the

Immigration Judge denied relief on the ground that Argueta failed to make the requisite

showing that his removal would impose “exceptional and extremely unusual hardship” on

his two daughters, who are United States citizens. In reaching that conclusion, the

Immigration Judge acknowledged that Argueta, who lived with his daughters and their

mother, had been in the United States for almost 20 years and provided the sole financial

support for the family by working six days a week as a landscaper. The Immigration

Judge also found that Argueta’s daughters, who were 12 and 14 years old at the time,

were “doing very well in school,” did not “have any major medical issues,” and that their

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mother was healthy. In addition, the Immigration Judge determined that Argueta’s

daughters had Medicaid but did not receive “any kind of other benefits[,] . . . including

. . . SNAP benefits or Food Stamps.”

Based on these findings, the Immigration Judge held that, although Argueta’s

removal would deprive his daughters of his income and emotional support, they would

not suffer the level of hardship necessary for cancellation of removal. Such hardship also

would not exist, the Immigration Judge concluded, if the family moved to Guatemala.

Although such a move would be “difficult,” there was no “evidence that it would be

impossible [given that Argueta’s] partner is also from Guatemala, and the children are

healthy and very smart girls.” Argueta appealed. The BIA dismissed the appeal,

concluding that the Immigration Judge’s factual findings were not clearly erroneous and

that the evidence failed to demonstrate that the “difficulties [Argueta’s] qualifying

relatives might face upon his removal to Guatemala would rise to the heightened

exceptional and extremely unusual hardship standard.” Argueta timely filed a petition for

review.

Generally, denial of an application for cancellation of removal is not reviewable in

federal court. 8 U.S.C. § 1252(a)(2)(B)(i). But we retain jurisdiction to review

“constitutional claims or questions of law” that are raised in a petition for review.

§ 1252(a)(2)(D). While this petition for review was pending, the Supreme Court held

that “the application of the statutory ‘exceptional and extremely unusual hardship’

standard to a given set of facts presents a mixed question of law and fact” subject to

judicial review under § 1252(a)(2)(D). Wilkinson v. Garland, 601 U.S. 209, 221-22

3

(2024), abrogating Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 249 (3d Cir. 2020).

We still lack jurisdiction to review agency factfinding. 1 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.” 2 Id. at 225.

The Board has defined “exceptional and extremely unusual hardship” as harm to

qualifying relatives that is “substantially beyond that which would ordinarily be expected

to result from the alien’s deportation.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 69

(BIA 2001). In assessing hardship, the agency cumulatively considers factors such as the

qualifying relative’s (or relatives’) age, health, length of residence in the United States,

and family and community ties in the United States and abroad. Id. at 63-64. “A lower

standard of living or adverse country conditions in the country of return are factors to

consider only insofar as they may affect a qualifying relative, but generally will be

1

Therefore, to the extent that Argueta challenges the Immigration Judge’s factual

findings regarding his daughters’ health and their ability to function academically if he

were removed, we lack jurisdiction and will dismiss in part the petition for review. See

Cortes v. Garland, 105 F.4th 124, 132 (4th Cir. 2024) (dismissing for lack of jurisdiction

that portion of the petition for review that “would have us replace the Immigration

Judge’s factual findings with our own”).

2

We need not determine precisely how much deference is due because Argueta would

not prevail even if we gave the agency decisions minimal deference. See Cortes, 105

F.4th at 134 (“[W]e leave to future decisions the task of sorting out how to apply the

standard of review discussed in Wilkinson.”).

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insufficient in themselves to support a finding of exceptional and extremely unusual

hardship.” Id.

Argueta asserts that the hardship to his daughters, who will be “forced” to move to

Guatemala with him if he is removed, is substantially beyond the hardship inherent in the

removal of a parent. 3 In particular, he emphasizes that his daughters “are assimilated into

American culture and do not speak Spanish.” Argueta also asserts that, upon his

removal, his daughters “would be deprived of educational, cultural, and social

opportunities due to their acculturation.” In addition, according to Argueta, his “children

would not be able to function academically or socially in school, nor would they be able

to function independently in society.” Furthermore, he claims that it will be difficult for

him to find a job in Guatemala “with which to continue guaranteeing a good present and

future for” his daughters.

The factors that Argueta identified, while certainly not insignificant, do not

establish that his daughters would suffer exceptional and extremely unusual hardship

from his removal. See Singh v. Rosen, 984 F.3d 1142, 1154-55 (6th Cir. 2021) (holding

that diminished educational opportunities are not enough to establish “exceptional and

extremely unusual hardship”). In support of his challenge to the agency’s application of

the exceptional and extremely unusual hardship standard to the undisputed facts, Argueta

3

Although Argueta also argues that the “IJ has not realized what are the best interests for

my children,” Pet’r’s Br., 6, 7, 10, he “has provided no authority allowing us to direct the

BIA to implement a new analytical standard for determining whether an exceptional and

extremely unusual hardship exists.” Gonzalez-Rivas v. Garland, 109 F.4th 1010, 1012

(8th Cir. 2024).

5

cites Ramos de Rojas v. Gonzales, where the Ninth Circuit in a not precedential opinion

stated that the petitioner appeared be a viable candidate for cancellation of removal. No.

04-74682, 2007 WL 705832, at *2 (9th Cir. Mar 6. 2007) (not precedential). But in that

case, one of the qualifying relatives was “developmentally delayed” and the record

contained testimony from a school official and a psychiatrist regarding that child’s

educational and developmental needs. Id. at *1. Here, by contrast, the IJ found

Argueta’s daughters are healthy and doing well in school. Therefore, we conclude that,

under any measure of deference, the Immigration Judge correctly determined that the

facts, as she found them, do not rise to the level of exceptional and extremely unusual

hardship, even when considered cumulatively.

Argueta also purports to raise a due process claim by asserting that the denial of

cancellation violated his and his daughters’ right to a “united family.” But, as the

Government points out, Argueta has not identified a substantive due process right

allowing him to remain in the United States to live with his children. See Payne-

Barahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007) (“The circuits that have addressed

the constitutional issue . . . have uniformly held that a parent’s otherwise valid

deportation does not violate a child’s constitutional right.”); cf. Morales-Izquierdo v.

Dep’t of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010) (rejecting claim that denial

of adjustment of status violated right of petitioner and his family to live together in the

United States). Furthermore, there is no merit to Argueta’s conclusory assertion that the

agency ignored certain evidence, such as reports on country conditions in Guatemala.

The IJ stated that she considered “all of the evidence in the record,” including Argueta’s

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testimony and exhibits. 4 And, in any event, Argueta has not demonstrated that any

failure to consider the identified evidence resulted in substantial prejudice. See Delgado-

Sobalvarro v. Att’y Gen., 625 F.3d 782, 787 (3d Cir. 2010).

For the foregoing reasons, to the extent that Argueta challenges the agency’s

factual findings, we will dismiss the petition for review for lack of jurisdiction. As to the

agency’s application of the law to those facts, we exercise jurisdiction and will deny the

petition for review.

4

It appears that one of the country condition reports cited in Argueta’s brief was not

submitted during the agency proceedings. Similarly, although Argueta claims that one of

his daughters has been treated for hair loss caused by stress, he seemingly did not raise

that issue before the Immigration Judge. See In re Fedorenko, 19 I. & N. Dec. 57, 74

(BIA 1984) (stating “that all evidence which is pertinent to determinations made during

deportation proceedings . . . must be adduced in the hearing before the immigration

judge”).

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