UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JOSE ANTONIO GA LLARDO VALDEZ, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 22-9535 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before TYMKOVICH , BALDOCK , and PHILLIPS , Circuit Judges.

________________ _________________ An Immigration Judge (IJ) denied pe titioner Jose Antonio Gallardo Valdez’s application for cancellation of removal a nd granted him voluntary departure. The Board of Immigration Appeals (Board) dism issed his appeal. Petitioner has filed a petition for review. We dismiss the petition in part for lack of jurisdiction and, exercising jurisdiction under 8 U.S.C. § 1252(a)(1), deny the remainder of the petition.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 24, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 12 I. BACKGROUND Petitioner is a native and citizen of Mexico. In 2018, the Department of Homeland Security (DHS) initi ated removal proceedings, alleging he was removable as a noncitizen who entered the United Stat es at an unauthorized time and place. Petitioner conceded removability and app lied for cancellation of removal under 8 U.S.C. § 1229b(b), clai ming his removal would cause exceptional and extremely unusual hardship to his el even-year-old daughter, I.A ., who is a United States citizen. 1 At a hearing before the IJ, Petitioner te stified that I.A. was intelligent, a good student, had many friends, does not require special educa tion classes or tutoring, spoke Spanish at home, and has no medical conditions. Petitioner also testified, however, that when DHS detained him for a month, I.A. became very sad and could not eat, and he was unsure how I.A. would react to a long-ter m separation. He explained that if he was removed, I.A. woul d move to Mexico with him because he is the family’s primary provider. He added th at five of his brothe rs and four of his other children live in Mexico, and upon removal he would initi ally live in the city of Durango, where most of them lived. Petitioner’s wife, Maria, test ified before the IJ. She stated she has been with Petitioner for thirty-five year s and the two live togeth er with I.A. and their

1 The other prerequisites for cancellation (t en years of physical presence in the United States, good moral character, and th e lack of a disqua lifying conviction, see 8 U.S.C. § 1229b(b)(1)(A)–(C)) ar e not at issue in this case. Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 23 eighteen-year-old daughter. Maria has no legal status in the United States. I.A. is a very good student, speaks some Spanish, can read and wr ite Spanish, and is in a Spanish class. After Petitione r was detained, I.A. became very sad, withdrawn, and distant, and Maria started working part-time as a dish washer. If Petitioner is removed, she would remain in the United St ates, but she would have to work more, and her eighteen-year-old daughter might al so have to work while continuing her studies. However, if Maria and I.A. were struggling, they would also move to Durango, where Maria’s parents live. Alth ough Maria has two brothers in Colorado, they are unable to help her. In Mexico, I.A. might not be put in the same grade because she would have to improve her Span ish, school was more expensive, and it would be harder for her to move on past high school. Maria said she was concerned about crime in Durango and added that I.A. has never been to Mexico. The parties stipulated that I.A. w ould testify consiste nt with her signed statement, where she praised Petitioner as a father, stated sh e would struggle to afford college without his as sistance, and could not visi t Durango, where Petitioner likely would live, because it is dangerous and a two-day bus ride from her home here. The IJ denied cancellation. After fi nding Petitioner and Mari a credible, the IJ found that if Petitioner wa s removed, I.A. would expe rience some sadness, related emotional disturbances, and fi nancial limitations, but such hardships are typical of what happens “when a close family member leaves the househol d and the country,” not the sort of “exceptional and extremel y unusual hardship” the law requires. R. at 90. The IJ also found the financial impact of losing Petitioner’s income could Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 34 be offset by Maria working more and by he r eighteen-year-old daughter’s efforts to work. The IJ further found I.A. would not experience th e requisite hardship if she moved to Mexico because of th e large family network there, particularly in Durango, and I.A. speaks, reads, and writes Spanish with some pr oficiency, although “it is likely she would have to work ha rd to improve her fluency.” Id. at 91. Any limitations on educational and financial opportunities in Mexico, the IJ said, including fear of criminal elements, were neither exceptional nor extremely unusual in this case. Petitioner appealed to the Board, ar guing the IJ committed a legal error by applying only In re Monreal-Aguinaga , 23 I. & N. Dec. 56 (B.I.A. 2001), to the facts at issue and ignoring two later cases, In re Andazola-Rivas , 23 I. & N. Dec. 319 (B.I.A. 2002) and In re Gonzalez Recinas , 23 I. & N. Dec. 467 (B.I.A. 2002) (together, “three cases”). He also argued he had dem onstrated his removal would result in exceptional and extremely unusual hardship to I.A. The Board dismissed Petitioner’s appeal . Adopting and affirming the IJ’s decision, the Board cited the three cases in support of it s agreement w ith the IJ’s reasoning that Petitioner failed to show th e required level of hardship. The Board wrote “separately” to reject Petitioner’s argument that th e IJ ignored relevant case law. R. at 3. The Board explained that although the IJ had not addressed all three cases “in the body of his decision,” the Boar d could identify no clea r factual error or any legal error in the IJ’s determination that Petitioner had not demonstrated his removal would result in exceptional and extremely unusual hardship to I.A. Id. at 4. Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 45 II. DISCUSSION Because a single Board member issued a brief order affirming the IJ’s decision, we review the Board’s decision a nd any parts of the IJ’s decision the Board relied on. See Dallakoti v. Holder , 619 F.3d 1264, 1267 (10th Cir. 2010). “We lack jurisdiction to review the Board’s discreti onary decision, based on the facts of the case, whether [I.A.] will su ffer an exceptional and extr emely unusual hardship.” Galeano-Romero v. Barr , 968 F.3d 1176, 1182–83 (10t h Cir. 2020) (discussing 8 U.S.C. § 1252(a)(2)(B)(i)). But under “§ 1252(a)(2)(D), we retain jurisdiction over questions of law that arise from the Board’s hardship determination.” Id. at 1184. We review questions of law de novo. Dallakoti , 619 F.3d at 1267. Petitioner contends the IJ “ignored relevant case law because he did not analyze and apply ” In re Andazola-Rivas or In re Gonzalez Recinas to the facts. Pet’r’s Opening Br. at 12. Petitioner argues that although the IJ’s decision incorporated a written addendum containing statements of law, 2 the IJ did not meaningfully apply the relevant caselaw . Petitioner contends the Board did not adequately account for this “omission” and therefore its decision was a “misapplication of the legal standard for exceptional and extremely unusual hardship.” Id. at 11. “[W]e have jurisdiction to review a clai m that the Board departed from its own adopted hardship standard, by ignoring it or favoring some other inapplicable

2 The addendum cited all three cases. See R. at 95. Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 56 standard.” Galeano-Romero , 968 F.3d at 1184. But Petitioner’s argument overlooks that the Board’s concurren ce in the IJ’s decision was based on the Board’s record review and consideration of a ll three cases, and in Petitione r’s case, it is the Board’s decision that we review. As the Board explained in In re Gonzalez Recinas , “any hardship case ultimately succeeds or fails on its own merits a nd on the particular facts presented,” but In re Andazola-Rivas and In re Monreal-Aguinaga “are the starting points for any analysis of excepti onal and extremely unusual hardship.” 23 I. & N. Dec. at 469. Because the Board considered all three cases, it did not ignore its own applicable standard or favor an inapplicable standard. To the extent Petitioner argues the Boar d misapplied the legal standards set out in the three cases to the facts of his case or should ha ve compared the facts of those cases with the facts of his, we lack jurisdiction. We have held we lack jurisdiction if “the Board acknowledges its standard and ex ercises its discretion within the bounds of its precedents’ cabining of such discretion.” Galeano-Romero , 968 F.3d at 1183. The Board did so here. By citing the th ree cases, the Board identified the proper standard. And the Board concurred in the IJ’s denial of cancel lation for the reasons the IJ articulated. Those re asons were based on considerat ion of relevant hardship factors drawn from the three cases—financ ial burden, family support in Mexico, a child’s familiarity with th e Spanish language, poor economic conditions in Mexico, and reduced educational opp ortunities in Mexico. See In re Gonzalez Recinas , 23 I. & N. Dec. at 470–71 ( listing “significant” hardship factors as cancellation applicant’s children’s ability to speak, read, and write Spanish; financial and Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 67 emotional difficulties arising from rem oval of provider of support; and family support in Mexico); In re Andazola-Rivas , 23 I. & N. Dec. at 323–24 (considering economic consequences, educational opport unities, family help in Mexico, and ability of non-petitioning pare nt to provide support); In re Monreal-Aguinaga , 23 I. & N. Dec. at 63–64 (lis ting relevant considerations as “the ages, health, and circumstances of qualifying . . . United States citizen relatives,” such as “a qualifying child with very serious heal th issues, or compelling sp ecial needs in school,” and “[a] lower standard of living or adverse country conditions in the country of return”). Because the Board acknow ledged its controlling stan dards and exercised its discretion within the bounds of those sta ndards, we lack jurisdiction to consider Petitioner’s argument despite his attempt to frame it “as a ch allenge to the application of a legal standard to established facts.” Galeano-Romero , 968 F.3d at 1184. III. CONCLUSION The petition for review is dismisse d in part and denied in part.

Entered for the Court
Timothy M. Tymkovich Circuit Judge Appellate Case: 22-9535 Document: 010110832154 Date Filed: 03/24/2023 Page: 7