# United States Court of Appeals **for the Fifth Circuit**

No. 21-60867 Summary Calendar

Jose Omar Gonzalez-Aguilar,

Petitioner ,

versus
Merrick Garland, U.S. Attorney General,

Respondent

.

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A212 918 888

Before Smith, Dennis, and Southwick, Circuit Judges

. Per Curiam: *
Jose Omar Gonzalez-Aguilar petition s for review of an order by the Board of Immigration Appeals. Th e order dismissed his appeal of an immigration judge’s removal orde r. We DISMISS in part and DENY in
part.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 13, 2022 Lyle W. Cayce Clerk Case: 21-60867 Document: 00516577308 Page: 1 Date Filed: 12/13/2022No. 21-60867

2 FACTUAL AND PROCEDURAL BACKGROUND Jose Omar Gonzalez-Aguilar, a na tive and citizen of Mexico, first entered the United States without inspecti on in 1998 near Laredo, Texas. He returned to Mexico briefly in 2010 following a Texas state conviction for driving while intoxicated (“DWI”). He again entered the country without inspection 15 days later. In 2017, afte r his second arrest for a DWI offense in Texas alerted immigration officials of his presence, Gonzalez-Aguilar was personally served with a Notice to Appear (“NTA”). He was charged with removability under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. The NTA ordered him to appear in immigration court at a date and time “[t]o be set.” The immigration court later mailed Gonzalez-Aguilar a Notice of Hearing (“NOH”), scheduling his master he aring for October 25, 2017.
Gonzalez-Aguilar appeared without counsel at the scheduled hearing. The immigration judge (“IJ”) continued the hearing to allow him to retain counsel. At his next hearing, Gonz alez-Aguilar appeared with counsel, admitted the allegations in the NTA, and conceded he was removable as charged. He also stated his intention to file an application for cancellation of removal. On December 27, 2017, he filed for cancellation of removal under 8 U.S.C. § 1229b(b)(1).
At the hearing on the application, Gonzalez-Aguilar’s attorney argued jurisdiction never vested in the immigration court because GonzalezAguilar’s NTA failed to state the date and time of his removal hearing. Gonzalez-Aguilar testified he lived in Dallas, Texas, and worked in
construction. He stated his wife was also undocumented but was not currently in immigration pr oceedings. Gonzalez-Aguila r testified that he and
his wife had two children born in the Un ited States: Cynthia, then age 13, and Edgar, age 12. Case: 21-60867 Document: 00516577308 Page: 2 Date Filed: 12/13/2022No. 21-60867

3 Gonzalez-Aguilar explained that his wife was the primary caretaker of the children and did not work, though she previously had a job cleaning
houses. If he were removed to Mexi co, his children would remain in the
United States with his wife. He conf irmed, however, that his wife would not make enough money cleaning houses to pay for the family’s expenses. Therefore, if he were r emoved, the family would lik ely have to move into a less expensive home or live with other family members. He added that his sister, a United States citi zen, would help support and care for his children.
When asked how he thought his removal would affect his two children, Gonzalez-Aguilar testified “i t would be bad for them” and “they
would do bad in school.” He note d that when he was in immigration detention, his daughter “was not well at all” and did poorly in school. The couple’s daughter, Cynthia, testified that if her father were deported, she would stay in Texas with her mother. Cynthia testified that when her father was in immigration dete ntion, she could not focus in school and her grades suffered. She had met with a counselor at her school during this time. Cynthia also explained that her godparents sometimes helped care
for her and her brother while her mother was working.
Gonzalez-Aguilar also discussed his crim inal history. He testified that prior to his 2010 DWI conviction, he ha d only been stopped by the police and ticketed for driving without a valid driver ’s license or proof of insurance. He
admitted to his 2010 arrest and conv iction for DWI and testified he had successfully completed his sentence. Gonzalez-Aguilar also admitted to being arrested again in 20 17 for drinking and drivin g. He testified he was ultimately convicted and sentenced to two years of probation.
On October 15, 2018, the IJ or ally denied Gonzalez-Aguilar’s application for cancellation of remo val and his request to terminate the removal proceedings based on Pereira . The IJ first found that GonzalezCase: 21-60867 Document: 00516577308 Page: 3 Date Filed: 12/13/2022No. 21-60867

4 Aguilar’s defective NTA was cured by the subsequent NOH. As such, the IJ had jurisdiction over the removal pr oceedings. Though the IJ found Gonzalez-Aguilar to be a credible witness, the IJ ultimately denied cancellation of removal, finding, am ong other things, he failed to show removal would result in exceptional and extremely unusual hardship to his children. The IJ also denied Gonz alez-Aguilar’s request for voluntary departure and ordered him removed to Mexico.
Gonzalez-Aguilar appealed the IJ ’s decision to the Board of Immigration Appeals (“BIA”). On Oc tober 14, 2021, the BIA dismissed his appeal. The BIA rejected the claim that the IJ lack ed jurisdiction. ROA.7-8. The BIA also upheld the IJ’s finding that Gonzalez-Aguilar failed to show the requisite hardship for cancellation of removal. Though the BIA considered
his claims that his children would suffer various negative impacts if he were removed to Mexico, the BIA found Go nzalez-Aguilar had not identified a hardship beyond the ordinary conseq uences of a non-citizen’s removal. Finally, the BIA held Gonzalez-Aguilar abandoned certain issues for failure
to brief them. Gonzalez-Aguilar timely filed a petition for review.

DISCUSSION Generally, we have authority to revi ew only the final decision of the BIA, not that of the IJ. Wang v. Holder , 569 F.3d 531, 536 (5th Cir. 2009). We “will evaluate the immigration judge’ s underlying decision only if it influenced the BIA’s opinion.” Hernandez-Castillo v. Sessions , 875 F.3d 199, 204 (5th Cir. 2017). We revi ew the BIA’s conclusions of law de novo and factual findings for su bstantial evidence. Barrios-Cantarero v. Holder , 772 F.3d 1019, 1021 (5th Cir. 2014). In Gonzalez-Aguilar’s ca se, the BIA adopted the findings and conclusions of the IJ . Therefore, we will review both
decisions. See Wang , 569 F.3d at 536. Case: 21-60867 Document: 00516577308 Page: 4 Date Filed: 12/13/2022No. 21-60867

5 There are three principal issues to resolve. First, did the IJ and the BIA lack jurisdiction over the remova l proceedings because the NTA did not include the date and time of his hearing? Second, did the BIA err in finding Gonzalez-Aguilar failed to show his United States citizen children would suffer exceptional and extremely unusual hardship upon his removal? Third, did the BIA err in concluding he abando ned his challenges to the IJ’s other factual findings that were raised in hi s notice of appeal but not specifically
addressed in his brief?

I. Jurisdiction over removal proceedings
Gonzalez-Aguilar contends neither th e IJ nor the BIA had jurisdiction
because his NTA failed to include the da te and time of his merits hearing. As the BIA found, Gonzalez-Aguilar’s argument is foreclosed under our precedent. In 2019, we held that a defect in an NTA does not deprive an immigration court of jurisdiction over removal proceedings. Pierre-Paul v.
Burr , 930 F.3d 684, 691–93 (5th Cir. 2019). Though the Supreme Court’s subsequent decision in Niz-Chavez v. Garland , 141 S.Ct. 1474 (2021) abrogated Pierre-Paul in part, we have since confir med that the jurisdictional holding from Pierre-Paul remains “the law of [this] circuit.” Maniar v.
Garland , 998 F.3d 235, 242 n.2 (5th Cir. 20 21). Accordingly, there is no merit to Gonzalez-Aguilar’s argument that the IJ lacked jurisdiction over his removal proceedings.

II. The BIA’s determination that Go nzalez-Aguilar did not establish exceptional and extremely unusual hardship Gonzalez-Aguilar argues the BIA erre d in finding he failed to show that his citizen children would suffer exceptional and extremely unusual hardship upon his remova l. The Government contends this court lacks jurisdiction to consider factual challenges to the hardship determination, citing the Supreme Court’s decision in Patel v. Garland , 142 S. Ct. 1614 Case: 21-60867 Document: 00516577308 Page: 5 Date Filed: 12/13/2022No. 21-60867

6 (2022). Instead, “the on ly reviewable issue before the [c]ourt is whether the [BIA] erred in applying the facts as found by the [IJ] to conclude that Gonzalez-Aguilar’s two children would not suffer exceptional and extremely unusual hardship upon his removal.”
We have recently addressed this issue. We held that under Patel , the hardship determination “is a discre tionary and authoritative decision” subject to the jurisdictional bar in 8 U.S.C. § 1252(a)(2)(B)(i) and therefore “beyond our review.” Castillo-Gutierrez v. Garland , 43 F.4th 477, 481 (5th Cir. 2022). Thus, we lack jurisdiction to consider any challenge GonzalezAguilar raised rega rding his burden under Sectio n 1229b(b)(1)(D), not just his factual challenges to the hardship determination. See id

. III. BIA’s determination that Gonzalez-Aguilar abandoned issues
Gonzalez-Aguilar argues the BIA e rred in concluding he abandoned any challenge to the IJ’s other factual fi ndings that were listed in his notice of appeal but not specifically addressed in his supporting brief. His notice of appeal includes arguments that the IJ erred in: (1) denying his motion to terminate the removal proceedings based on his Pereira jurisdictional argument, (2) determining he failed to show his children would suffer exceptional and extremely unusual hardsh ip upon his removal, (3) ruling he had not established 10 years of continuo us physical presence in the United States as required by Section 1229b(b )(1)(A), (4) finding he “did not merit a finding of good moral character” and denying discretionary relief, and (5) refusing to grant his request for voluntary departure. In his brief before the BIA, though , Gonzalez-Aguilar discussed only the IJ’s refusal to terminate the procee dings based on the purported lack of jurisdiction and the IJ’s finding that he had not established the requisite hardship to a qualifying relative. Case: 21-60867 Document: 00516577308 Page: 6 Date Filed: 12/13/2022No. 21-60867

7 We need not reach the issue of forf eiture because th e BIA’s hardship determination was correct and is disp ositive of his cancellation of removal claim. Further, substantial eviden ce supports the BIA’s finding that Gonzalez-Aguilar abandoned the issues he failed to address in his brief. See Wang , 569 F.3d at 536–37. In fact, “once a petitioner elects in his notice of appeal to file a brief, that brief becomes the operative document through which any issues that a petitioner wishes to have considered must be raised.”
Claudio v. Holder , 601 F.3d 316, 319 (5th Ci r. 2010). Since GonzalezAguilar’s brief did not addres s all issues listed in his notice of appeal, the BIA did not err in finding he abandoned those issues. See id

. The petition is DISMISSED in part and DENIED in part. Case: 21-60867 Document: 00516577308 Page: 7 Date Filed: 12/13/2022