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VELASQUEZ PEREZ v. GARLAND (2021)

United States Court of Appeals, Sixth Circuit.2021-07-16No. No. 20-4069

Summary

Holding. The petition for review is denied, and the Board of Immigration Appeals' decision affirming the removal order is affirmed.

Armando Velasquez-Perez, a Guatemalan national who entered the United States illegally in 2002, was ordered removed after convictions for assault and driving while intoxicated. He sought cancellation of removal, which requires demonstrating that his removal would cause exceptional and extremely unusual hardship to his U.S. citizen children. The immigration judge denied his application, finding he lacked good moral character due to his criminal history and his children would not face the required level of hardship in Guatemala. The Board of Immigration Appeals affirmed on the hardship ground alone.

Velasquez challenged the Board's decision, arguing his children would struggle in Guatemala due to limited Spanish proficiency and his inability to support them financially. The court found this hardship was not exceptional or extremely unusual—rather, it reflected the ordinary difficulties families face when a removable parent leaves the country. The court rejected his due process claim, finding no fundamental unfairness in the removal proceedings.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether removal would cause exceptional and extremely unusual hardship to U.S. citizen children
  • Standard for evaluating hardship claims in cancellation of removal cases
  • Whether the immigration judge committed due process violations

Procedural posture

The Board of Immigration Appeals affirmed the immigration judge's denial of cancellation of removal, and Velasquez petitioned for review in the Sixth Circuit Court of Appeals.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

Armando Gomez Velasquez, also known as Armando Velasquez-Perez, is a Guatemalan citizen who entered the United States without inspection in 2002. Sixteen years later, an immigration judge ordered him removed, finding (among other things) that Velasquezs removal to Guatemala would not cause “exceptional or extremely unusual hardship” to his children. The Board of Immigration Appeals agreed and denied relief. We likewise agree, and deny the petition.

Velasquez and his wife—who likewise entered the United States without inspection—have four children who are U.S. citizens. In July 2012, Velasquez was convicted of assaulting a security guard. The Department of Homeland Security served Velasquez with a notice to appear for removal proceedings, charging him as an “alien present in the United States without being admitted or paroled.” 8 U.S.C. § 1182(a)(6)(A)(i). While those proceedings remained pending, Velasquez was convicted of driving while intoxicated.

Velasquez thereafter conceded his removability but applied for cancellation of removal. To be eligible for cancellation, Velasquez needed to establish that he had been “physically present in the United States for a continuous period” of at least 10 years; that during that period he had shown “good moral character”; that he had not been convicted of an offense enumerated in §§ 1182(a)(2) or 1227(a)(2)–(3); and that his “removal would result in exceptional and extremely unusual hardship” to a qualifying relative (here, his children). Id. § 1229b(b)(1). At his removal hearing, Velasquez testified that, if he were removed, his wife and children would move to Guatemala; that he could not financially support them there; and that his children would struggle socially and educationally in Guatemala. Velasquez also addressed his criminal history. Initially, he disclosed only that he had been arrested for assault and drunk driving. But under further questioning he eventually admitted that he had also been arrested for driving without a license, indecent exposure, public intoxication, and violating an open-container law.

The IJ first determined that Velasquez had not shown “good moral character,” given his “long history of alcohol-related offenses” and his unwillingness to disclose them during his hearing. The IJ also found that Velasquezs children would not suffer “exceptional and extremely unusual hardship” in Guatemala. The Board denied relief. This petition followed.

Where, as here, the Board “reviews the immigration judges decision and issues a separate opinion,” we review the Boards decision “as the final agency determination.” Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). Here, the Boards decision rested only on the absence of exceptional hardship to Velasquezs children.

Velasquez challenges the Boards application of the hardship standard to the IJs factual findings. We recently held that the question whether the facts found by an IJ amount to “exceptional and extremely unusual hardship” is a reviewable question of law and fact. Singh v. Rosen, 984 F.3d 1142, 1150 (6th Cir. 2021). We have not decided what standard of review to apply to this question, however, because in every case that has presented it the standard of review has not affected the outcome. See Niazi v. Garland, No. 20-4270, ––– F. Appx ––––, ––––, 2021 WL 2838390, at *3 (6th Cir. July 8, 2021); Rodriguez-Salas v. Garland, 849 F. Appx 582, 585 (6th Cir. 2021); Araujo-Padilla v. Garland, No. 20-3571, ––– F. Appx ––––, ––––, 2021 WL 1192513, at *3 (6th Cir. Mar. 30, 2021); Singh, 984 F.3d at 1154. The same is true here.

Hardship is “exceptional and extremely unusual” only if it is “substantially beyond the ordinary hardship that would be expected when a close family member leaves this country.” Montanez-Gonzalez v. Holder, 780 F.3d 720, 722–23 (6th Cir. 2015) (internal quotation marks omitted). Here, the situation that Velasquezs children face is not extremely unusual. Persons subject to removal often say that they will take their U.S.-citizen children with them to countries with worse schools and fewer jobs than in the United States. See, e.g., Singh, 984 F.3d at 1146, 1154–55 (6th Cir. 2021); Lopez-Soto v. Garland, No. 20-3552, ––– F. Appx ––––, ––––, 2021 WL 1550834, at *6 (6th Cir. Apr. 20, 2021); Aburto-Rocha v. Mukasey, 535 F.3d 500, 504–05 (6th Cir. 2008); Matter of J-J-G-, 27 I. & N. Dec. 808, 814 (BIA 2020); Matter of Andaloza-Rivas, 23 I. & N. Dec. 319, 324 (BIA 2002); Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56, 64–65 (BIA 2001). Velasquez provides us with no basis to find the hardship in his case to be worse than in many other cases.

Velasquez counters that his children will struggle in Guatemala because they do not speak much Spanish. Yet he testified that the children spoke a “little” Spanish already and gave no reason why they could not learn more in Guatemala. Velasquez also says that he could not support his family financially there. But his only basis for this assertion is his relatives’ advice that the job market is “very hard” in Guatemala and his own belief that any job he did obtain would not pay him enough. We have no reason to doubt, of course, that the transition to Guatemala will be difficult for Velasquezs children; but he has not shown that the hardship they face is “exceptional and extremely unusual.” See 8 U.S.C. § 1229a(c)(4)(A)(i); 8 C.F.R. § 1240.8(d).

Velasquez also argues that the IJ violated his due-process right to a “full and fair” removal hearing. Suarez-Diaz v. Holder, 771 F.3d 935, 942 (6th Cir. 2014). To violate that right, the IJ must have committed an error that rendered the removal proceeding “so fundamentally unfair” that Velasquez could not reasonably present his case. Camara v. Holder, 705 F.3d 219, 223 (6th Cir. 2013). The record reflects no such error.

The petition for review is denied.

KETHLEDGE, Circuit Judge.