United States Court of Appeals 

for the Fifth Circuit 

No. 21-60288 

Basilio Agustin-Matias, 

Petitioner, 

versus

Merrick Garland, U.S. Attorney General, 

Respondent. 

Petition for Review of an Order of the 

Board of Immigration Appeals 

BIA No. A205-568-118 

Before Jones, Ho, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

Basilio Agustin-Matias, a native and citizen of Guatemala, petitions 

for review of a decision of the Board of Immigration Appeals (BIA) 

dismissing his appeal of an immigration judge’s (IJ) denial of his application 

for cancellation of removal. Agustin-Matias contends that the BIA erred in 

concluding that he failed to demonstrate that his stepchildren are United 

States citizens, and thus “qualifying relatives” for purposes of his 

application, and by improperly reviewing the IJ’s findings of fact de novo. He 

also asserts that the BIA’s interpretation of 8 U.S.C. § 1229b(b)(1)(D) 

United States Court of Appeals 

Fifth Circuit 

FILED 

September 9, 2022 

Lyle W. Cayce 

Clerk 

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violates the Fifth Amendment as it has been construed to guarantee equal 

protection.1

 

We review the BIA’s decision and consider the IJ’s decision only to 

the extent it influenced the BIA. Singh v. Sessions, 880 F.3d 220, 224 (5th 

Cir. 2018). We review factual findings for substantial evidence and legal 

determinations de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 

2001); Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). To overturn a 

factual finding under the substantial evidence standard, “[t]he alien must 

show that the evidence was so compelling that no reasonable factfinder could 

conclude against it.” Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009). 

8 U.S.C. § 1229b(b)(1)(D) allows for the cancellation of removal if, 

inter alia, “removal would result in exceptional and extremely unusual 

hardship to [a qualifying relative, i.e.,] the alien’s spouse, parent, or child, 

who is a citizen of the United States or an alien lawfully admitted for 

permanent residence.” See also § 1101(b)(1)(B) (describing when a stepchild 

can be a qualifying relative under § 1229b(b)(1)(D)); Diarra v. Gonzales, 137 

F. App’x 627, 632 (5th Cir. 2005). Agustin-Matias contends that the BIA 

erred in determining that he failed to offer sufficient evidence that his 

stepchildren were “qualifying relatives” under § 1229b(b)(1)(D). 

Agustin-Matias did not assert before the IJ that his stepchildren were 

qualifying relatives under § 1229b(b)(1)(D), but the IJ noted in passing that 

Agustin-Matias “neither provided evidence regarding the hardship to his 

step-children nor any evidence establishing that his step-children are either: 

(1) children of [Agustin-Matias’s wife]; or (2) United States citizens or 

1

 Because Agustin-Matias does not challenge the BIA’s determination that he failed 

to demonstrate an extremely unusual hardship to his wife and daughter, he has abandoned 

any challenge to that determination on appeal. See Soadjede v. Ashcroft, 324 F.3d 830, 833 

(5th Cir. 2003). 

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lawful permanent residents.” Agustin-Matias challenged that conclusion 

before the BIA, pointing to his wife’s testimony that she was both a United 

States citizen and the biological mother of his stepchildren, and that his 

stepchildren were born in the United States, making them citizens and, in 

turn, qualifying relatives. See 8 U.S.C. § 1401(a) (stating that “a person born 

in the United States” is a “citizen[] of the United States at birth”); 

§ 1229b(b)(1)(D). Nevertheless, the BIA held that the IJ “correctly found 

that [Agustin-Matias] ha[d] submitted insufficient evidence to establish that 

his stepchildren are qualifying relatives for cancellation of removal 

purposes.” The BIA reasoned that Agustin-Matias “d[id] not point to any 

record evidence, such as the children’s birth certificates or United States 

passports, which would show that the children in question are in fact his 

wife’s biological children and are United States citizens.” 

Before this court, Agustin-Matias asserts that the evidence compels a 

conclusion contrary to that of the BIA. He specifically points to his wife’s 

testimony, a counselor’s report based on an interview with her, and an 

affidavit from his mother-in-law that purportedly confirm his stepchildren’s 

citizenship. However, Agustin-Matias miscasts the affidavit; it merely states 

that Agustin-Matias is a “good stepdad,” without addressing the parentage 

of his stepchildren. And while we acknowledge that Agustin-Matias’s wife’s 

testimony and the counselor’s report weigh against the BIA’s conclusion that 

the stepchildren are not “qualifying relatives,” we cannot say that evidence 

alone compels a contrary conclusion. See Wang, 569 F.3d at 537. “We will not 

substitute our judgment for that of the BIA or IJ ‘with respect to the 

credibility of witnesses or ultimate factual findings based on credibility 

determinations.’” Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005) (citing 

Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)). Because Agustin-Matias did 

not offer any other evidence substantiating his stepchildren’s citizenship, he 

has failed to “show that the evidence [of their citizenship] was so compelling 

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that no reasonable factfinder could conclude against it.” Id. This claim 

accordingly fails.2

Parsing Agustin-Matias’s somewhat muddled equal protection 

argument, he appears to contend that § 1229b(b)(1)(D)’s requirement that 

he demonstrate “exceptional and extremely unusual hardship” to a 

qualifying relative, without also considering the hardship that he would suffer, 

violates equal protection under the Fifth Amendment. We apply rational 

basis review in considering “Congress’s plenary power to pass legislation 

concerning the admission or exclusion of aliens.” Madriz-Alvarado v. 

Ashcroft, 383 F.3d 321, 332 (5th Cir. 2004). “Under rational basis review, 

differential treatment must be upheld against [an] equal protection challenge 

if there is any reasonably conceivable state of facts that could provide a 

rational basis for the classification.” Cabral v. Holder, 632 F.3d 886, 892 (5th 

Cir. 2011) (internal quotations and citations omitted). 

We conclude that § 1229b(b)(1)(D)’s requirement that an alien 

demonstrate “exceptional and extremely unusual hardship” to a qualifying 

relative, irrespective of hardship suffered by the alien, passes constitutional 

muster. Congress adopted § 1229b(b)(1)(D)’s hardship standard in response 

to administrative decisions that weakened the former “extreme hardship” 

standard by permitting suspension of deportation if, for example, the alien’s 

child would fare less well in the alien’s country of nationality than in the 

2

 Agustin-Matias also contends that the BIA improperly reviewed the IJ’s factual 

findings de novo. True, “the BIA cannot ‘engage in de novo review of findings of fact 

determined by an immigration judge.’” Alvarado de Rodriguez v. Holder, 585 F.3d 227, 234 

(5th Cir. 2009) (quoting 8 C.F.R. § 1003.1(d)(3)(i)). But that is not what the BIA did. It 

merely considered the evidence Agustin-Matias proffered and agreed with the IJ’s 

conclusion that the evidence was insufficient to establish that his stepchildren were 

qualifying relatives. Because the BIA did not “re-weigh the evidence submitted and 

substitute its own judgment for that of the IJ,” id. at 235, we find no error on this point. 

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United States. See H.R. Rep. 104-828, at 213 (1996) (Conf. Rep.)). 

Congress determined that interpretation did not conform to federal 

immigration law and policy, which “clearly provide that an alien parent may 

not derive immigration benefits through his or her child.” Id. In enacting 

the “exceptional and extremely unusual hardship” standard, Congress thus 

emphasized that an alien must provide evidence of harm to a qualifying 

relative substantially beyond that which ordinarily would be expected due to 

the alien’s deportation. See id. at 213–14. 

Congress’s articulated justification provides a “reasonably 

conceivable state of facts that could provide a rational basis” for the hardship 

requirement. Cabral, 632 F.3d at 892; see Madriz-Alvarado, 383 F.3d at 332; 

see also Mendez-Gutierrez v. U.S. Att’y Gen., 860 F. App’x 155, 158–59 (11th 

Cir. 2021) (finding rational basis for the hardship requirement and 

concluding that “because only minimal scrutiny is given to statutory 

classifications of immigrants, the hardship requirement does not violate the 

[Fifth Amendment]”) (citations omitted). Agustin-Matias’s argument on 

this issue lacks merit. 

PETITION DENIED. 

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