United States Court of Appeals

For the Eighth Circuit 

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No. 20-2398

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Olvin Antonio Recarte-Cruz 

 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: May 10, 2023

Filed: August 2, 2023

[Unpublished]

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Before SHEPHERD, STRAS, and KOBES, Circuit Judges. 

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PER CURIAM. 

The Department of Homeland Security began removal proceedings against 

Olvin Recarte-Cruz in 2016. Recarte-Cruz applied for cancellation of his removal, 

and the Immigration Judge denied the application. Recarte-Cruz appealed to the 

Board of Immigration Appeals and moved to remand his case to the IJ to consider
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new evidence. The BIA dismissed the appeal, and Recarte-Cruz petitioned this 

Court for review. We deny Recarte-Cruz’s petition for review. 

Recarte-Cruz argues that the BIA abused its discretion by denying his motion 

to remand.1

 “Motions to remand are disfavored, and we review their denial under a 

highly deferential abuse of discretion standard.” Campos Julio v. Barr, 953 F.3d 

550, 553 (8th Cir. 2020) (citation omitted). If a petitioner wants to bring new, 

previously unavailable evidence, “the BIA will remand only if the evidence is of 

such a nature that . . . [it] would likely change the result in the case.” Berte v. 

Ashcroft, 396 F.3d 993, 997 (8th Cir. 2005) (citation omitted). The BIA abuses its 

discretion in denying a motion to remand to consider new evidence “only when its 

decision is without rational explanation, departs from established policies, 

invidiously discriminates against a particular race or group, or where the agency fails 

to consider all factors presented by the alien or distorts important aspects of the 

claim.” Rodriguez v. Barr, 952 F.3d 984, 991 (8th Cir. 2020) (citation omitted); see 

also Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992) (explaining that motions to 

remand for the consideration of new evidence are treated as motions to reopen). 

At his hearing, Recarte-Cruz argued that his removal would cause exceptional 

and extremely unusual hardship to his qualifying relatives—his citizen children. At 

the time, Recarte-Cruz’s two older children lived with him while his two younger 

children lived with their mother. Recarte-Cruz maintained that if he were deported, 

his two oldest children would move back to Honduras with him while the younger 

two would stay in the United States with their mother. In 2016, Recarte-Cruz’s 

youngest son, Christian, was diagnosed with an autoimmune disorder. Ultimately, 

1

As an initial matter, the Government argues that we do not have jurisdiction 

to review Recarte-Cruz’s petition under the Supreme Court’s recent decision in Patel 

v. Garland, 142 S. Ct. 1614 (2022), because it requires us to make a judgment 

relating to cancellation of removal. We recently rejected this argument in LlanasTrejo v. Garland, 53 F.4th 458, 462 (8th Cir. 2022) (distinguishing Patel and finding 

we have jurisdiction to review the BIA’s denial of a motion to reopen a petitioner’s 

cancellation of removal proceedings). 
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the IJ denied Recarte-Cruz’s application for cancellation of removal because his two 

children’s relocation to Honduras was not an exceptional and extremely unusual 

hardship. The IJ also acknowledged that Christian would be able to receive 

appropriate medical care because he lived with his mother. 

After his hearing, Recarte-Cruz gained sole custody of all four children. He 

then moved for the BIA to remand his case to consider this evidence, asserting that 

he would take all four children to Honduras with him if he were deported. The BIA 

denied the motion, determining that Recarte-Cruz’s new custody arrangement would 

not change the outcome of his removal proceedings. 

The BIA did not abuse its discretion by determining that the new custody 

arrangement would not affect Recarte-Cruz’s case. The BIA acknowledged that the 

new custody order did not indicate that Recarte-Cruz ever informed the court of his 

immigration proceedings or his desire to relocate his children. Rather, the custody 

order indicated that the court would need to approve any travel or residency changes 

for the children.2

 The BIA reasoned that that “[e]ven assuming [Recarte-Cruz] was 

granted the ability to take all four of his children to Honduras with him . . . 

[Christian’s] medical condition does not appear particularly serious nor has 

[Recarte-Cruz] submitted documentation to show [Christian] would be unable to 

obtain medical treatment in Honduras.”3

 We conclude that it was not an abuse of 

discretion to deny Recarte-Cruz’s motion to remand. 

2

Recarte-Cruz argues that the BIA misstated the evidence. We acknowledge 

that the BIA stated that the custody order “does indicate” that Recarte-Cruz informed 

the court of his immigration proceedings. But when read in context, it is clear that 

this was a scrivener’s error, and the BIA meant to say that the custody order “does 

not indicate” such. Accordingly, we decline to entertain Recarte-Cruz’s claim that 

the BIA based its opinion on factual error.

3

Recarte-Cruz argues that the BIA engaged in impermissible factfinding by 

remarking that Christian’s condition did “not appear particularly serious.” See

Garcia-Mata v. Sessions, 893 F.3d 1107, 1110 (8th Cir. 2018) (noting that “[t]he 

[BIA] lacks authority to engage in factfinding of its own”). We disagree. Prior to 

making this statement, the BIA reiterated the IJ’s conclusion that Christian’s 
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We deny Recarte-Cruz’s petition for review. 

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condition is usually mild and goes away without treatment within four to six weeks. 

It did not engage in factfinding with its comment summarizing the severity of 

Christian’s condition.