United States Court of Appeals

For the Eighth Circuit 

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No. 20-3575

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Alberto Dominguez Hernandez

 Petitioner

v.

Merrick B. Garland, Attorney General of the United States

 Respondent

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Petition for Review of an Order of the

Board of Immigration Appeals

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Submitted: December 13, 2021

Filed: March 18, 2022 

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Before BENTON, KELLY, and ERICKSON, Circuit Judges. 

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ERICKSON, Circuit Judge.

Alberto Dominguez Hernandez petitions for review of the Board of 

Immigration Appeals’ (“BIA”) denial of his application for cancellation of removal. 

He asserts the BIA committed three errors in upholding the Immigration Judge’s

(“IJ”) good moral character determination: (1) it applied the wrong standard of 

review; (2) it failed to consider the arguments he raised; and (3) it did not provide a 

reasoned basis sufficient for appellate court review. Hernandez also asserts the BIA 
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abused its discretion when it denied his motion to remand to introduce additional 

evidence. While the BIA’s decision is superficial and mechanical and was 

dispatched with a level of brevity that we do not condone and may not accept in the 

future, we find no error warranting remand under the particular circumstances of this 

case.

I. BACKGROUND

Hernandez, a native and citizen of Mexico, arrived in the United States in 

December 1997. He is 41 years old, married, and the father of three children. Before 

being detained, he lived with his wife and children in Rock Valley, Iowa. To support 

the family, Hernandez worked at Wolfswindel Dairy milking cows and 

administering medication to them. Hernandez and his family were actively involved 

in their church: helping with chores, providing financial contributions, and 

participating in fundraising activities.

While in the United States, Hernandez has been arrested twice. Once in 2007,

after Hernandez got into a fistfight when one of the individuals he was drinking

alcohol with, insulted his wife. Hernandez successfully completed a one-year 

probationary term for that offense. The second incident is what led to the 

commencement of these removal proceedings. 

On December 23, 2019, Hernandez got into an argument with his wife because 

he had agreed to pick up a shift at work over the holidays. After the discussion, he 

went to his wife’s cousin’s house where he consumed tequila. While in an 

intoxicated state, Hernandez, who did not have a valid driver’s license, stole a 

relative’s vehicle, drove it for approximately a mile before rolling it and rendering it 

inoperable. No other vehicle or property was involved. Hernandez was picked up

at the accident scene by unknown individuals and driven to his house. Once at his

house, he vomited resulting in an ambulance being summoned. After the ambulance 

was called, law enforcement got involved. Hernandez’s blood alcohol concentration 

was determined to be .226. Hernandez was charged with operating a motor vehicle 
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without the owner’s consent and operating a vehicle while intoxicated. These 

charges remain pending.

Hernandez asserted during the removal hearing that alcohol consumption was 

out of character for him and expressed remorse for his actions. He submitted

numerous letters of support from family and community members attesting to his 

good moral character. There was also evidence about the medical, emotional, and 

financial issues that Hernandez’s removal from the United States posed to hisfamily. 

Hernandez’s wife testified that she and the children planned to remain in the United 

States, even if Hernandez was removed. The IJ noted Hernandez’s many positive 

factors that would weigh in his favor, including his lengthy residence in the United 

States, steady employment, stable residence, financial and emotional support he 

provides to his family, and the many years in which he filed federal income taxes. 

In weighing all the factors, the IJ found the positive equities, however, did not 

outweigh the severity of the pending alcohol-related offenses. The IJ did not analyze 

whether Hernandez’s children would experience “exceptional and extremely 

unusual hardship” if Hernandez was removed from the United States.

On appeal to the BIA, Hernandez argued that the case should be remanded 

because the IJ’s good moral character determination was factually flawed and 

misapplied the law by placing too much weight on whether Hernandez had shown 

rehabilitation since the offense and by failing to consider that a single lapse in 

judgment over a 10-year period should not outweigh all the positive conduct during

the requisite 10-year period. Hernandez also asserted that the IJ erred by not 

addressing the fourth factor for cancellation of removal—exceptional and extremely 

unusual hardship to his United States children.

The BIA noted in its decision that it was reviewing the IJ’s findings of fact 

for clear error and reviewing de novo all other issues and questions of law, discretion, 

and judgment. The BIA affirmed the IJ’s good moral determination, finding the IJ 

applied the appropriate legal standard and exercised her discretion when balancing 

the positive and negative factors. Hernandez’s motion to remand to introduce 
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additional mental health treatment records, family support letters, and a chemical 

dependency evaluation was denied on the ground that the documents were 

cumulative of evidence already in the record and not likely to change the outcome. 

This appeal followed.

II. DISCUSSION

Hernandez seeks remand asserting several alleged deficiencies in the BIA’s 

decision, including application of the incorrect standard of review, failure to address 

the arguments he raised in his brief, the lack of a reasoned basis for its decision, and 

failure to address the hardship factor. 

Aliens in removal proceedings may, under certain enumerated circumstances, 

be eligible for a “discretionary form of relief called cancellation of removal.” Ali v. 

Barr, 924 F.3d 983, 985 (8th Cir. 2019). As noted in the immigration proceedings, 

in order to qualify, Hernandez must show: (1) continuous physical presence in the 

United States for at least 10 years; (2) good moral character; (3) he has not been 

convicted of certain crimes; and (4) his “removal would result in exceptional and 

extremely unusual hardship” to a qualifying relative. 8 U.S.C. § 1229b(b)(1). Both 

the BIA and the IJ concluded that Hernandez was ineligible for cancellation of 

removal because he lacked good moral character. Neither addressed the hardship 

factor. 

Generally, we lack jurisdiction to review the BIA’s discretionary decision to 

deny cancellation of removal. Rodriguez v. Barr, 952 F.3d 984, 989 (8th Cir. 2020). 

“We may, however, review constitutional claims or questions of law.” Id. (citing 8 

U.S.C. § 1252(a)(2)(D)). In addition, we have jurisdiction to review the BIA’s 

finding on moral character because it is a matter of applying the law to the facts. 

Ikenokwalu-White v. I.N.S., 316 F.3d 798, 803 (8th Cir. 2003). In making a moral 

character determination, consideration may be given to expunged convictions as 

well as past conduct that predates the statutorily prescribed period for which good 

moral character must be established. Id. 
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While the BIA’s decision is no model of clarity and is disappointingly 

conclusory, it recited the appropriate standards of review. We have no reason to 

conclude that the BIA did not follow these standards and review the IJ’s findings of 

fact for clear error and ultimate legal determination of good moral character de novo. 

It certainly would have been preferable for the BIA to provide additional detail about 

its assessment of the factors; however, the factors were not in dispute, and we will 

not read into the decision “a strained interpretation” to find error. See Lemus-Arita 

v. Sessions, 854 F.3d 476, 481 (8th Cir. 2017); see also Trinidad-Alvarado v. Barr, 

838 F. App’x 203, 204 (8th Cir. 2020).

When reviewing immigration cases, we have explained that “the BIA must 

consider the issues raised and announce its decision in terms sufficient to enable a 

reviewing court to perceive that it has heard and thought and not merely reacted” but 

“it is not necessary for the BIA to list every possible positive and negative factor in 

its decision.” Kanagu v. Holder, 781 F.3d 912, 918 (8th Cir. 2015) (cleaned up). 

The BIA is entitled to a presumption of regularity. Id. While acknowledging these 

principles that have developed over time, the BIA has perhaps received from the 

courts more deferential review than it is due. Admittedly, while there may be some

removal cases that can be decided by the BIA with relative ease, the BIA must resist 

the temptation to summarily dismiss (or worse yet ignore) an alien’s claims and 

arguments as though they are nothing more than routine. 

While there have been some cases where this Court has found the BIA’s 

cursory decision cannot stand despite the deferential review it is generally entitled 

to receive, this case survives deferential review, although barely. Hernandez bears 

the burden of showing good moral character. See Kimm v. Rosenberg, 363 U.S. 

405, 406-08 (1960); Ikenokwalu-White, 316 F.3d at 806. The good moral character 

determination may be informed by evidence of past misconduct and current 

misconduct. Hernandez had a prior alcohol-related offense. Hernandez has not 

received chemical dependency treatment because he does not believe he is an 

alcoholic since he rarely drinks. The pending state charges related to the theft and 
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destruction of a relative’s vehicle while intoxicated, even though Hernandez did not 

have a valid driver’s license, are egregious and posed a serious risk of public safety. 

The record contains evidence of more than a single lapse in judgment. The evidence

in the record is sufficient to offset the positive factors Hernandez presented. The 

IJ’s factual determination, which was upheld by the BIA, that Hernandez failed to 

establish good moral character was supported by substantial evidence and we affirm 

the BIA’s legal determination that he was not eligible for cancellation of removal. 

See Ikenokwalu-White, 316 F.3d at 805-06 (affirming the BIA’s decision that alien 

had not established good moral character and was not eligible for cancellation of 

removal after careful review of the record). 

Under the conjunctive language of 8 U.S.C. § 1229b(b)(1), Hernandez must 

satisfy all four prerequisites for cancellation of removal. Soto-Roque v. Holder, 494 

F. App’x 680, 681 (8th Cir. 2012). The lack of good moral character finding is 

dispositive. The BIA did not err by not also addressing the hardship factor. See

I.N.S. v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam) (“As a general rule courts 

and agencies are not required to make findings on issues the decision of which is 

unnecessary to the results they reach.”).

Hernandez’s final claim that the BIA failed to provide a reasoned basis for 

denying his motion to remand is belied by the record. The BIA found the additional 

evidence Hernandez sought to introduce was cumulative and would not likely 

change the outcome. We find no abuse of discretion in the denial of Hernandez’s 

motion to remand for consideration of additional evidence. Robles v. Garland, 23 

F.4th 1061 (8th Cir. 2022) (finding no abuse of discretion in denying motion to 

reopen when BIA concluded the additional evidence would not likely change the 

result in the case—denial of cancellation of removal). 
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III. CONCLUSION

For the foregoing reasons, we deny Hernandez’s request to vacate and remand 

the BIA’s good moral character determination. The petition for review of the BIA’s 

denial of Hernandez’s application for cancellation of removal is denied.

KELLY, Circuit Judge, dissenting.

We require that the BIA “consider the issues raised, and announce its decision 

in terms sufficient to enable a reviewing court to perceive that it has heard and 

thought and not merely reacted.” Malonga v. Holder, 621 F.3d 757, 764 (8th Cir. 

2010) (quoting Barragan-Verduzco v. I.N.S., 777 F.2d 424, 426 (8th Cir. 1985)). 

In his appeal to the BIA, Hernandez argued that the IJ erred in concluding that 

his actions on December 23, 2019, outweighed the evidence submitted in support of 

his good moral character: letters of support from his community; his otherwise clean 

record in the preceding ten years; his consistent payment of taxes; testimony by 

Hernandez and his wife that he does not drink regularly, they do not keep alcohol in 

the home, and the events of December 23 were a “single lapse of judgment”; and his 

expressions of remorse. Hernandez also specifically challenged the weight the IJ 

gave to her conclusion that he had not shown “rehabilitation” after his drunk-driving 

offense, highlighting the evidence that Hernandez rarely drinks and pointing out that 

he had been detained in the interim and therefore limited in his ability to seek 

treatment.

In its order affirming the IJ, the BIA offered only three sentences on the 

question of good moral character: 

Next, we affirm the Immigration Judge’s determination that the 

respondent did not establish his eligibility for cancellation of removal 

or voluntary departure because he did not establish good moral 

character for the requisite periods. . . . The decision reflects that the 

Immigration Judge applied the correct legal standard and balanced the 
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positive versus negative factors in making the discretionary denial in 

this case (IJ at 11-15). The Immigration Judge correctly determined 

that the presumption against good moral character set forth in Matter of 

Castillo-Perez . . . is inapplicable in this case.

In my opinion, this statement is not sufficient to persuade this court that the BIA

“heard and thought” about Hernandez’s arguments on appeal, nor does it provide 

any reasoning for us to review. The BIA observes that the IJ “balanced the positive 

versus negative factors.” But the outcome of that balancing is exactly what 

Hernandez challenged, and the BIA offers no indication that it reviewed the IJ’s 

balancing in light of Hernandez’s arguments. Hernandez also objected to the IJ’s 

emphasis on his lack of “rehabilitation,” but the BIA’s opinion doesn’t address this 

argument at all. And while the BIA cites to Matter of Castillo-Perez, Hernandez did 

not argue that the IJ improperly applied a presumption against good moral character;

this reference does not engage with Hernandez’s argument about what he 

characterized as his “single lapse.” 

In fact, it’s not even clear from the opinion whether the BIA followed its own 

regulations and applied the appropriate standard of review. The opinion recites the 

correct standards—clear error for findings of fact and de novo for questions of law, 

discretion, and judgment pursuant to 8 C.F.R. § 1003.1(d)(3)—but there is no 

indication of which standard of review the BIA applied in addressing Hernandez’s 

specific objections. In my view, we cannot simply assume that the BIA applied the 

appropriate standard when its opinion contains nothing on which to base that 

assumption. 

This is especially true here because, as the majority notes, the BIA reviews 

the IJ’s judgment of moral character de novo. See Urrutia Robles v. Barr, 940 F.3d 

420, 422 (8th Cir. 2019) (affirming the BIA’s reversal of an IJ decision granting 

cancellation of removal where the BIA “weighed and evaluated that evidence and 

came to a different conclusion regarding exercise of the Attorney General’s 

discretion, an issue the BIA reviews de novo under 8 C.F.R § 1003.1(d)(3)”); see 

also Palaguachi v. Whitaker, 755 F. App’x 81, 84 (2d Cir. 2018) (affirming the BIA’s 
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reversal of the IJ’s finding of good moral character because “the BIA did not engage 

in new fact finding; it simply reassessed the weight of Palaguachi’s undisputed 

criminal history” as it was entitled to do pursuant to 8 C.F.R. § 1003.1(d)(3)(ii)). 

Pursuant to its regulations, the BIA had the obligation to review the IJ’s assessment 

de novo but it offers no reasoning to support its affirmance and does not respond to 

Hernandez’s key arguments on appeal. I would therefore remand this matter to the 

BIA for further proceedings.

As the majority notes, the BIA opinion in this matter is “superficial and 

mechanical,” “dispatched with a level of brevity that we do not condone,” and 

“disappointingly conclusory.” I recognize that we have said the BIA need not 

provide “an exegesis on every contention a movant advances.” Gonzalez-Vega v. 

Lynch, 839 F.3d 738, 741 (8th Cir. 2016). But “an agency, in adjudicating the rights 

of individuals, must follow its own procedures and regulations” and, “in rendering 

an agency decision that is subject to judicial review, the BIA ‘must describe its 

reasoning with such clarity as to be understandable.’” Garcia-Mata v. Sessions, 893 

F.3d 1107, 1109 (8th Cir. 2018) (quoting Singh v. Gonzales, 495 F.3d 553, 557 (8th 

Cir. 2007)). The BIA did not meet that standard in this case, and I would remand 

the matter for the requisite analysis. 

I respectfully dissent.

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