Guerrero Trejo v. Garland, No. 20-60353 (5th Cir. 2021)
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After an IJ found that petitioner was a removable alien, petitioner sought to have his removal cancelled. The IJ denied the petition, determining that petitioner could not be considered for discretionary relief because he had not shown his removal would result in "exceptional and extremely unusual hardship" to his U.S.-citizen children. The BIA affirmed the IJ's assessment.
The Fifth Circuit concluded that it has jurisdiction to review the IJ and BIA's determination. The court explained that, although 8 U.S.C. 1252(a)(2)(B) deprives it of jurisdiction to review the discretionary decision of whether to actually grant cancellation of removal, recent Supreme Court precedent makes clear that applying a legal standard to established facts in order to determine whether an alien is eligible for discretionary relief is a question of law, not a discretionary decision. Therefore, the court may review the IJ's determination that the events that would befall petitioner's children if he were removed would not amount to "exceptional and extremely unusual hardship" as Congress intended the phrase. On the merits, the court concluded that petitioner has not shown that the events that the agency found would befall his children if he were removed amount to suffering substantially beyond the hardship usually associated with a parent's removal. In this case, the children's mothers care for them, petitioner's brother lives with the youngest two, the children will not move to Mexico with petitioner, and petitioner has family in Mexico in any event. Accordingly, the court denied the petition for review.
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