Adrian Galvez-Bravo v. Merrick B. Garland

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0239p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ADRIAN IRINEO GALVEZ-BRAVO,

│

Petitioner, │

> No. 24-3052

│

v. │

│

MERRICK B. GARLAND, Attorney General, │

Respondent. │

┘

On Petition for Review from the Board of Immigration Appeals.

No. A 206 154 327.

Decided and Filed: October 23, 2024

Before: SUTTON, Chief Judge; READLER and BLOOMEKATZ, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Alicia Jeanine Triche, TRICHE IMMIGRATION APPEALS, Memphis,

Tennessee, for Petitioner. Christopher G. Gieger, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent.

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OPINION

_________________

CHAD A. READLER, Circuit Judge. Adrian Galvez-Bravo, a native and citizen of

Mexico, seeks review of a Board of Immigration Appeals order denying his motion to reopen

removal proceedings. Galvez-Bravo contends that the Board’s order ignored his core argument

and deviated from other Board decisions. While we have jurisdiction to review Galvez-Bravo’s

legal challenges to the Board’s order, we conclude that the Board engaged in reasoned

decisionmaking in denying his motion. Accordingly, we deny his petition for review.

No. 24-3052 Galvez-Bravo v. Garland Page 2

I.

Galvez-Bravo entered the United States in 1994. Save for a brief return to Mexico to

marry his wife, he has lived in the Memphis area, working as a subcontractor. The couple has

three children, two of whom are U.S. citizens. Following Galvez-Bravo’s brush with the law in

2013, the Department of Homeland Security initiated removal proceedings against him, alleging

he was a noncitizen present in the United States without being admitted or paroled. See 8 U.S.C.

§ 1182(a)(6)(A)(i). After conceding the charge, Galvez-Bravo sought cancellation of removal

under § 240A of the Immigration and Nationality Act. See id. § 1229b(b).

The Attorney General “may cancel” the removal of certain noncitizens who are otherwise

deportable from the United States. See id. § 1229b. The Attorney General, in turn, “has

delegated this power” to award relief from removal to the Board and immigration judges.

Hernandez v. Garland, 59 F.4th 762, 766 (6th Cir. 2023); Valenzuela-Alcantar v. INS, 309 F.3d

946, 949 (6th Cir. 2002); see also 8 C.F.R. §§ 1003.1(a)(1), (d)(3)(ii), 1003.10(a). Cancellation

occurs in two steps. First, the noncitizen must satisfy various eligibility factors set forth in

§ 240A. If the noncitizen does so, the agency, at step two, can exercise its discretion to cancel an

order of removal. See Wilkinson v. Garland, 601 U.S. 209, 212–13 (2024).

Galvez-Bravo, however, never made it past step one. As a nonpermanent resident who is

otherwise deportable from the United States, he needed to show at the outset that his “removal

would result in exceptional and extremely unusual hardship” to one of his two U.S. citizen

children. 8 U.S.C. § 1229b(b)(1)(D). On this front, Galvez-Bravo maintained that he would

return to Mexico with his children if removed. That would deprive them of educational

opportunities in the United States and otherwise detrimentally affect their standard of living. An

IJ disagreed with that assessment, as did the Board on appeal. Accordingly, the Board ordered

that Galvez-Bravo be removed to Mexico, subject to the IJ’s conditions on that removal.

Rather than petitioning to this Court, Galvez-Bravo moved to reopen his removal

proceeding on the ground that, in light of new evidence, he could now satisfy the hardship

standard. He pointed to several factual developments, in particular his daughter’s recent dyslexia

diagnosis, a condition for which she was receiving support through her private school.

No. 24-3052 Galvez-Bravo v. Garland Page 3

According to Galvez-Bravo, he would now go to Mexico alone. But losing his job in the United

States would deprive his daughter as well as her brother, both U.S. citizens, of their current

private school learning environment, in addition to inflicting other emotional and financial costs

amounting to a sufficiently severe hardship.

The Board declined to reopen Galvez-Bravo’s removal proceedings. After assessing the

new evidence, the Board concluded that Galvez-Bravo still had not met the hardship

requirement. Galvez-Bravo in turn petitioned this Court for review of that determination.

II.

Jurisdiction. Before addressing the merits of Galvez-Bravo’s arguments, we pause to

confirm our jurisdiction. Typically, we may review all “final order[s] of removal.” See 8 U.S.C.

§ 1252(a)(1); see also Kucana v. Holder, 558 U.S. 233, 253 (2010) (holding that “[a]ction on

motions to reopen . . . remain subject to judicial review”); Madrigal v. Holder, 572 F.3d 239, 242

(6th Cir. 2009). With respect to orders regarding cancellation of removal, however, Congress

has curtailed our review in certain aspects. For step one’s eligibility inquiry, we maintain

jurisdiction to review questions of law and mixed questions of fact and law in the Board’s

determinations. See Wilkinson, 601 U.S. at 212 (recognizing that courts can review whether the

Board correctly applied the undisputed or established facts to assess the hardship standard). But

we may not review the agency’s factual findings, which are made by the IJ and reviewed by the

Board for clear error. See 8 U.S.C. § 1252(a)(2)(B)(i); 8 C.F.R. § 1003.1(d)(3)(i); Patel v.

Garland, 596 U.S. 328, 331, 338–40 (2022). Contrast this jurisdictional limitation regarding the

Board’s eligibility determination with other settings, like the review of the denial of asylum,

where we consider agency factfinding under a deferential “substantial evidence” standard. See 8

U.S.C. § 1252(b)(4)(B); Vasquez-Rivera v. Garland, 96 F.4th 903, 907 (6th Cir. 2024).

Likewise, as to step two, we may not review the agency’s exercise of discretion to cancel an

order of removal. See 8 U.S.C. § 1252(a)(2)(B)(i); Wilkinson, 601 U.S. at 225 n.4.

With this framework in mind, we are confident of our jurisdiction to consider Galvez-

Bravo’s petition. None of the issues Galvez-Bravo presses with regard to the Board’s step one

determination are purely factual ones. He does not ask us, for instance, to question the Board’s

No. 24-3052 Galvez-Bravo v. Garland Page 4

findings as to the severity of his daughter’s dyslexia or the nature of her current treatment.

Instead, Galvez-Bravo contests whether the Board engaged in reasoned decisionmaking in

determining that he was ineligible for cancellation. Accepting the agency’s factfinding, his

arguments focus on whether there is a reasoned “connection” between the “facts found” and the

“choice made” by the agency—in other words, whether the Board’s decision was “arbitrary and

capricious.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)

(citation omitted); see also Ass’n of Data Processing Serv. Orgs., Inc. v. Bd. of Governors of the

Fed. Rsrv. Sys., 745 F.2d 677, 683 (D.C. Cir. 1984) (Scalia, J.) (“[A]n agency action which is

supported by the required substantial evidence may in another regard be ‘arbitrary,

capricious’ . . . for example, because it is an abrupt and unexplained departure from agency

precedent.”); Harry T. Edwards, 2023 Post Publication Update for Federal Standards of Review

228 (2023) (“The arbitrary and capricious standard encompasses . . . review of an agency’s

reasoning as distinguished from its fact-finding . . . .”). Said differently, his petition tees up a

legal question distinct from the adequacy of the agency’s factfinding. See Ishac v. Barr, 775 F.

App’x 782, 787–89 (6th Cir. 2019); see also Hernandez, 59 F.4th at 768 (looking to the

“substance” of petitioner’s arguments to consider whether the challenge is to the Board’s

analysis and not its factual findings); cf. Singh v. Rosen, 984 F.3d 1142, 1149 (6th Cir. 2021)

(noting that a petitioner may not challenge the Board’s factual and discretionary findings by

“cloak[ing]” his attack as a “question of law”) (citation omitted). So we turn to the merits.

Merits. We review the Board’s decision not to reopen Galvez-Bravo’s removal

proceedings for an abuse of discretion. See Trujillo Diaz v. Sessions, 880 F.3d 244, 248 (6th Cir.

2018). In practice, that means we will vacate the Board’s determination only if we are left with

the “definite and firm conviction” that the Board “committed a clear error of judgment.” Sako v.

Gonzales, 434 F.3d 857, 863 (6th Cir. 2006) (quotation and citation omitted). Assessing only the

basis set forth in the Board’s decision, see Trujillo Diaz, 880 F.3d at 248, we ask whether

Galvez-Bravo carried the “heavy burden” of showing that the Board’s decision was arbitrary,

irrational, or contrary to law. Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (quotation

and citation omitted). For example, if the Board’s decision was made without any rational

explanation or inexplicably departed from established Board practice, a remand would be

necessary. Trujillo Diaz, 880 F.3d at 248.

No. 24-3052 Galvez-Bravo v. Garland Page 5

The Board’s decision on the motion to reopen was not arbitrary, irrational, or contrary to

law. See Alizoti, 477 F.3d at 451. The Board began by articulating the appropriate legal

standard—whether the new evidence presented was material, previously unavailable, and, when

considered with the prior record, demonstrated a prima facie case for eligibility for the relief

sought. See 8 U.S.C. § 1229a(c)(7); INS v. Abudu, 485 U.S. 94, 104–05 (1988). The Board then

turned to that evidence, which included copies of Galvez-Bravo’s children’s academic and

medical records as well as declarations from his wife and oldest son. Acknowledging the

challenging circumstances facing Galvez-Bravo’s family and accepting that his removal would

result in some hardship to his U.S. citizen children, the Board nonetheless concluded that the

resulting hardship simply did not go “beyond that which would normally be expected to occur

upon the removal of a close family member.” In so doing, the Board fairly articulated why the

burdens expected to be experienced by the Galvez-Bravo family—including a lower standard of

living and diminished educational opportunities—did not satisfy the demanding “exceptional and

extremely unusual hardship” standard. See Trujillo Diaz, 880 F.3d at 248 (requiring that the

Board provide a “rational explanation” for its decision).

Galvez-Bravo sees things otherwise. He first accuses the Board of misunderstanding the

basis of his motion to reopen. Specifically, he points to a line in the Board’s opinion addressing

whether his children’s “potential relocation with him to Mexico will negatively impact” the

minors. A.R. at 4. This statement, according to Galvez-Bravo, misunderstood the central

premise of his motion to reopen—namely, that if he were to be deported, his children would not

accompany him to Mexico, yet would suffer a sufficient hardship by forfeiting educational

opportunities without Galvez-Bravo’s financial support. In Galvez-Bravo’s mind, the Board

wholly failed to view his hardship argument through the proper lens, warranting a remand. See

Preçetaj v. Sessions, 907 F.3d 453, 459 (6th Cir. 2018).

But the Board’s reasoning stands separate from Galvez-Bravo’s accusations. Notably,

Galvez-Bravo never made an independent hardship argument premised on the location of his

children. His arguments presented the same hardships, whether his children stayed in the United

States or accompanied him back to Mexico. The Board summed up the crux of these arguments

together: Galvez-Bravo’s removal would deprive the children of their current learning

No. 24-3052 Galvez-Bravo v. Garland Page 6

environment and disrupt their existing family support system, harming their “welfare and

educational development.” In the end, the Board determined that the resulting hardship, whether

suffered in the United States or Mexico, simply did not satisfy the high bar warranting

cancellation of removal. In so concluding, the Board plainly engaged with what Galvez-Bravo

now describes as his petition’s “central factual theory,” namely, that his removal would result in

his children losing their father’s “financial support.” We cannot fault the Board’s passing

reference to Galvez-Bravo’s children’s potential relocation to Mexico, especially when Galvez-

Bravo made similar references in his motion to reopen. At the very least, the single line

highlighted by Galvez-Bravo does not leave us with a “definite and firm conviction” that the

Board “committed a clear error of judgment.” Sako, 434 F.3d at 863 (quotation omitted).

That leaves Galvez-Bravo’s second criticism of the Board, that the opinion departed

without explanation from the Board’s “settled course” of practice. Unexplained inconsistencies

in the Board’s “determinations regarding the same issue can support” an abuse of discretion

claim. Makdesion v. Garland, No. 22-3436, 2023 WL 2972548, at *2 (6th Cir. Apr. 17, 2023)

(citing Zhang v. Gonzales, 452 F.3d 167, 173 (2d Cir. 2006)). As evidence of the Board’s

purportedly incongruous approach, Galvez-Bravo points to several unpublished Board decisions

reopening removal proceedings upon new evidence of a qualifying relative’s learning disability,

viewing such evidence as probative on the hardship question.

The orders relied upon by Galvez-Bravo are unpublished, warranting similar treatment by

the Board as we would give our own unpublished work. See Jomaa v. United States, 940 F.3d

291, 298 (6th Cir. 2019). But even giving them their full weight, we see no inconsistency with

the Board’s approach. True, in some circumstances, the Board’s failure to explain incompatible

outcomes “may raise an inference of arbitrary decisionmaking.” Saleh v. Garland, 100 F.4th

742, 747 (6th Cir. 2024) (quotation omitted). But that inference can be predicated only on an

actual “conflict” between the results here and a pattern of results in the cases cited. See Nissan v.

Barr, 788 F. App’x 365, 367 (6th Cir. 2019) (per curiam) (recognizing that “one inconsistent

precedent doesn’t make a decision arbitrary and capricious” (cleaned up)); Makdesion, 2023 WL

2972548, at *2 (holding a conflict on the “same issue” can support an abuse of discretion claim).

And a review of the handful of two-decade old orders that Galvez-Bravo proffers does not reveal

No. 24-3052 Galvez-Bravo v. Garland Page 7

such a conflict. At most, they suggest the diagnosis of a particular learning disability can

sometimes amount to a sufficient hardship. But given the “unique factual record” that

underscores each determination, this fact alone does not suggest any obvious inconsistency in the

Board’s approach here. Nissan, 788 F. App’x at 367; Ettienne v. Holder, 659 F.3d 513, 518 (6th

Cir. 2011) (recognizing that while the Board “will sometimes reach opposite conclusions in cases

that have many factual similarities, . . . the different outcomes are an expected result of the

discretionary weighing required to make individualized determinations”), abrogated on other

grounds by Guerrero-Lasprilla v. Barr, 589 U.S. 221 (2020). Not all learning disabilities are the

same. Nor does each removal decision have the same effect on the individual bearing that

disability. In the end, we cannot say the Board’s decision was so irrational as to warrant a

remand.

III.

For these reasons, we deny the petition for review.