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 petitions for review of an order by the 

Board of Immigration Appeals. The order dismissed his appeal of an 

immigration judge’s removal order. 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opinion should not be published and is not precedent except under the limited 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 

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FACTUAL AND PROCEDURAL BACKGROUND 

 Jose Omar Gonzalez-Aguilar, a native and citizen of Mexico, first 

entered the United States without inspection 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, after 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 hearing 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, Gonzalez-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 proceedings. Gonzalez-Aguilar testified that he and 

his wife had two children born in the United States: Cynthia, then age 13, and 

Edgar, age 12. 

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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 Mexico, his children would remain in the 

United States with his wife. He confirmed, however, that his wife would not 

make enough money cleaning houses to pay for the family’s expenses. 

Therefore, if he were removed, the family would likely have to move into a 

less expensive home or live with other family members. He added that his 

sister, a United States citizen, would help support and care for his children. 

When asked how he thought his removal would affect his two 

children, Gonzalez-Aguilar testified “it would be bad for them” and “they 

would do bad in school.” He noted 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 detention, 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 criminal history. He testified that 

prior to his 2010 DWI conviction, he had 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 conviction for DWI and testified he had 

successfully completed his sentence. Gonzalez-Aguilar also admitted to 

being arrested again in 2017 for drinking and driving. He testified he was 

ultimately convicted and sentenced to two years of probation. 

On October 15, 2018, the IJ orally denied Gonzalez-Aguilar’s 

application for cancellation of removal 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: 12/13/2022
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Aguilar’s defective NTA was cured by the subsequent NOH. As such, the IJ 

had jurisdiction over the removal proceedings. Though the IJ found 

Gonzalez-Aguilar to be a credible witness, the IJ ultimately denied 

cancellation of removal, finding, among other things, he failed to show 

removal would result in exceptional and extremely unusual hardship to his 

children. The IJ also denied Gonzalez-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 October 14, 2021, the BIA dismissed his 

appeal. The BIA rejected the claim that the IJ lacked 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 Gonzalez-Aguilar had not identified a 

hardship beyond the ordinary consequences 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 review 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 review the BIA’s conclusions of law de novo and 

factual findings for substantial evidence. Barrios-Cantarero v. Holder, 772 

F.3d 1019, 1021 (5th Cir. 2014). In Gonzalez-Aguilar’s case, the BIA adopted 

the findings and conclusions of the IJ. Therefore, we will review both 

decisions. See Wang, 569 F.3d at 536. 

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There are three principal issues to resolve. First, did the IJ and the 

BIA lack jurisdiction over the removal 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 abandoned his challenges to the IJ’s other 

factual findings that were raised in his notice of appeal but not specifically 

addressed in his brief? 

I. Jurisdiction over removal proceedings 

Gonzalez-Aguilar contends neither the IJ nor the BIA had jurisdiction 

because his NTA failed to include the date 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 confirmed 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. 2021). 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 Gonzalez-Aguilar did not establish 

exceptional and extremely unusual hardship 

Gonzalez-Aguilar argues the BIA erred in finding he failed to show 

that his citizen children would suffer exceptional and extremely unusual 

hardship upon his removal. 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 

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(2022). Instead, “the only 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 discretionary 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 regarding his burden under Section 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 erred in concluding he abandoned 

any challenge to the IJ’s other factual findings 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 hardship upon his removal, (3) ruling he 

had not established 10 years of continuous 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 proceedings based on the purported lack of 

jurisdiction and the IJ’s finding that he had not established the requisite 

hardship to a qualifying relative. 

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We need not reach the issue of forfeiture because the BIA’s hardship 

determination was correct and is dispositive of his cancellation of removal 

claim. Further, substantial evidence 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 Cir. 2010). Since GonzalezAguilar’s brief did not address 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. 

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