Artemio Garcia-Pascual v. Merrick B. Garland, No. 20-2529 (8th Cir. 2023)
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Petitioner, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (BIA) affirming the denial of his application for cancellation of removal. In his petition, Petitioner argued that the IJ erred as a matter of law in denying his application for cancellation of removal based on the IJ’s conclusion that the harm Petitioner’s children will suffer upon his removal is not “exceptional and extremely unusual.”
The Eighth Circuit affirmed. The court concluded that Petitioner’s argument is actually an “argument . . . that the [IJ] erred in failing to afford what he believes is sufficient weight to Petitioner’s step-son’s emotional hardship in rendering the hardship determination.” The court explained that a petitioner’s argument “that the [Board] applied the incorrect legal standard by failing to adequately consider certain factors” is actually a challenge to the Board’s discretionary determination that the court lacks jurisdiction to review.
Court Description: [Smith, Author, with Arnold and Stras, Circuit Judges] Petition for Review - Immigration. The court lacked jurisdiction to review the agency's discretionary decision that petitioner failed to establish that his qualifying relatives would suffer exceptional and extreme hardship if he were removed and thus failed to show he was eligible for cancellation of removal; the court has previously rejected attempts to circumvent the jurisdictional bar through arguments, such as the one petitioner raises, that the agency applied an incorrect legal standard by failing to account for the cumulative effect of the hardships presented; petition for review dismissed. Judge Arnold, concurring.
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