# 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 Bo ard of Immigration Appeals (BIA) dismissing his appeal of an immigration judge’s (IJ) denial of his application for cancellation of removal. Agustin-Ma tias contends that the BIA erred in concluding that he failed to demons trate that his stepchildren are United States citizens, and thus “qualifyi ng 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 interpre tation of 8 U.S.C. § 1229b(b)(1)(D) United States Court of Appeals Fifth Circuit 

### FILED September 9, 2022
Lyle W. Cayce Clerk Case: 21-60288 Document: 00516465966 Page: 1 Date Filed: 09/09/2022No. 21-60288

2 violates the Fifth Amendment as it ha s been construed to guarantee equal protection. 1

We review the BIA’s decision and co nsider the IJ’s decision only to
the extent it infl uenced the BIA. Singh v. Sessions , 880 F.3d 220, 224 (5th Cir. 2018). We review factual findin gs 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 Ci r. 2002). To overturn a factual finding under the substantial ev idence standard, “[ t]he alien must show that the evidence was so compellin g 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 ex ceptional 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 relati ve 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 rela tives” 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 evid ence regarding the hardship to his step-children nor any eviden ce 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). Case: 21-60288 Document: 00516465966 Page: 2 Date Filed: 09/09/2022No. 21-60288

3 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 moth er 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) (stati ng 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 in sufficient evidence to establish that his stepchildren are qualifying rela tives for cancellation of removal purposes.” The BIA reasoned that Agus tin-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 ar e United States citizens.”
Before this court, Agustin-Matias a sserts that the evidence compels a conclusion contrary to that of the BIA. He specific ally 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 mi scasts the affidavit; it merely states that Agustin-Matias is a “good stepda d,” without addressing the parentage of his stepchildren. And while we ackn owledge that Agustin-Matias’s wife’s testimony and the counselor’s report weigh against the BIA’s conclusion that the stepchildren are not “qualifying re latives,” 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 fa ctual 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 substantiati ng his stepchildren’s citizenship, he has failed to “show that the evidence [o f their citizenship] was so compelling Case: 21-60288 Document: 00516465966 Page: 3 Date Filed: 09/09/2022No. 21-60288

4 that no reasonable factfinder could conclude against it.” Id. This claim accordingly fails. 2
Parsing Agustin-Matias’s somew hat 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 al so considering the hardship that he would suffer , violates equal protection under the Fi fth Amendment. We apply rational basis review in considering “Congre ss’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 ag ainst [an] equal protection challenge if there is any reasonably conceivabl e state of facts that could provide a
rational basis for the classification.” Cabral v. Holder , 632 F.3d 886, 892 (5th Cir. 2011) (internal quotatio ns 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 suffe red by the alien, passes constitutional muster. Congress adopted § 1229b(b)(1)(D )’s hardship standard in response
to administrative decisions that we akened the former “extreme hardship” standard by permitting suspension of de portation 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)). Bu t 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 insufficien t to establish that his stepchildren were qualifying relatives. Because the BIA di d 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. Case: 21-60288 Document: 00516465966 Page: 4 Date Filed: 09/09/2022No. 21-60288

5 United States. See H.R. Rep. 104-828, at 213 (1996) (Conf. Rep.)). Congress determined that interpreta tion did not conform to federal immigration law and policy, which “clear ly 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 whic h ordinarily would be expected due to the alien’s deportation. See id. at 213–14. Congress’s articulated justific ation provides a “reasonably conceivable state of facts that could prov ide 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 mini mal scrutiny is given to statutory classifications of immigrants, the hard ship requirement does not violate the [Fifth Amendment]”) (citations omi tted). Agustin-Matias’s argument on
this issue lacks merit.

PETITION DENIED. Case: 21-60288 Document: 00516465966 Page: 5 Date Filed: 09/09/2022