NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0063n.06

No. 21-3070

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ANTONIO CANO-MORALES,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

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ON PETITION FOR REVIEW 

FROM THE UNITED STATES 

BOARD OF IMMIGRATION 

APPEALS 

BEFORE: CLAY, DONALD, and NALBANDIAN, Circuit Judges.

CLAY, Circuit Judge. Petitioner Antonio Cano-Morales petitions this Court for review 

of the Board of Immigration Appeals’ denial of his motion to reopen his cancellation of removal 

proceedings. The only issue in the case is whether the evidence he proffered in support of 

reopening his removal proceeding—that his daughters would not receive the same education and 

that one of his daughters would not be able to adequately treat her pre-diabetes—is sufficient to 

create a reasonable likelihood of proving that his removal would cause his daughters exceptional 

or extremely unusual hardship. We DENY Cano’s petition for review for the reasons set forth 

below. 

I. BACKGROUND

Antonio Cano-Morales (“Cano”) is a native and citizen of Mexico who entered the United 

States without admission in 1994. During the approximately 20 years Cano has lived in the United 
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States, he fathered two daughters, purchased a home, and was gainfully employed as a nurseryman. 

Cano’s domestic partner, Diana Salazar, is also a native and citizen of Mexico.

In 2014, Cano was convicted of misdemeanor domestic assault and sentenced to 

approximately 12 months’ imprisonment. Shortly after his release, Cano was arrested during a 

traffic stop, and the Department of Homeland Security began removal proceedings. With the aid 

of counsel, Cano conceded removability but sought cancellation of removal because doing so 

would cause exceptional and extremely unusual hardship on his two daughters, M.C. and C.C. 

Specifically, he argued that he would not be able to make enough money to support himself in 

Mexico while still supporting Salazar, M.C., and C.C., who planned to remain in the United States. 

Salazar also testified in support of Cano, stating that she struggled to pay the family’s bills while 

he was detained pending removal.

An Immigration Judge (“IJ”) denied Cano’s motion for cancellation of removal. To be 

eligible for cancellation of removal, Cano had to prove that he “(1) had been continuously present 

in the United States during the ten-year period preceding the application; (2) has been a person of 

good moral character during that time; (3) has not been convicted of certain qualifying convictions, 

and (4) his removal would result in ‘exceptional and extremely unusual hardship’” to his daughters. 

Galindo-Munoz v. Barr, 799 F. App’x 905, 910 (6th Cir. 2020) (citing 8 U.S.C. § 1229b(b)(1)). 

The IJ concluded that Cano had satisfied each element except proving his removal would cause 

exceptional and extremely unusual hardship.1 Cano appealed the denial of his cancellation of 

1 The IJ determined Cano’s domestic violence conviction was excusable under the petty 

offense exception, and therefore, was not a crime involving moral turpitude. Considering this in 

conjunction with testimony that he supported his family and made an effort to reform his behavior, 

the IJ concluded Cano was a person of good moral character. Additionally, because Cano’s 

domestic violence conviction was a misdemeanor, the IJ was not statutorily prohibited from 

cancelling his removal.
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removal to the Board of Immigration Appeals (the “Board”), which affirmed the IJ on June 17, 

2020.

On August 14, 2020, Cano filed with the Board a motion to reopen his cancellation of 

removal proceedings. See 8 C.F.R. § 1003.2(a) (2021) (motions to reopen are filed directly with 

the Board). Cano shared that Salazar, M.C., and C.C. no longer intended to remain in the United 

States, and instead, would relocate to Mexico with him. He argued new evidence of his daughters’ 

recently-diagnosed health issues and their struggles in school had become available since the 

Board affirmed the IJ’s denial, and this new evidence proved his removal would cause exceptional 

and extremely unusual hardship.2 Despite this new evidence, the Board denied his motion to 

reopen. Cano timely filed a petition for review with this Court.

II. ANALYSIS

Courts of appeal may review the Board’s orders denying motions to reopen. HernandezPerez v. Whitaker, 911 F.3d 305, 315–16 (6th Cir. 2018); 8 U.S.C. § 1252(a)(1); 28 U.S.C. 

§ 2347(a). However, we “‘lack jurisdiction to review the denial of a motion to reopen or remand 

in a cancellation of removal case, unless the motion raised a new hardship ground not decided in 

the original decision.’” Id. at 316 (quoting Ortiz-Cervantes v. Holder, 596 F. App’x 429, 432 (6th 

Cir. 2015)). We review “denials of motions to reopen under the abuse-of-discretion standard but 

review legal questions de novo.” Sanchez-Gonzalez v. Garland, 4 F.4th 411, 413 (6th Cir. 2021); 

see also Kucana v. Holder, 558 U.S. 233, 242 (2010). The Board abuses its discretion when the 

denial “‘was made without a rational explanation, inexplicably departed from established policies, 

or rested on an impermissible basis such as invidious discrimination against a particular race or 

2 Cano argued before the Board that C.C. had recently been diagnosed with a thyroid 

problem. In his briefs submitted to this Court, he forfeits such argument and only argues M.C.’s 

diagnosis of pre-diabetes creates a reasonable likelihood of successfully proving hardship.
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group.’” Dieng v. Barr, 947 F.3d 956, 960–61 (6th Cir. 2020) (quoting Alizoti v. Gonzales, 477 

F.3d 448, 453 (6th Cir. 2007)).

The petitioner need not conclusively prove his removal would create a qualifying hardship; 

however, the new evidence must create a reasonable likelihood of success if the proceedings were 

to be reopened. Hernandez-Perez, 911 F.3d at 320–21. Because Cano’s cancellation of removal 

claim was denied solely for failing to establish that his removal would create an exceptional or 

extremely unusual hardship for his daughters, his petition to reopen must set forth new facts that 

create a reasonable likelihood of establishing such hardship.

To successfully prove exceptional or extremely unusual hardship, “‘the alien must provide 

evidence of harm to his spouse, parent, or child substantially beyond that which ordinarily would 

be expected to result from the alien’s deportation.’” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 

59 (BIA 2001) (quoting H.R. Conf. Rep. No. 104-828) (emphasis omitted). The new evidence 

that Cano proffers in support of reopening his removal proceedings are that his daughters will be 

deprived of educational support services they currently receive and that M.C.’s recent diagnosis 

of pre-diabetes cannot be adequately treated or managed in Mexico. The Board reviewed Cano’s 

new evidence and found neither of these additional facts, alone or considered together, was 

sufficient to create a reasonable likelihood of establishing exceptional or extremely unusual 

hardship on his daughters.

a. M.C.’s and C.C.’s Education Needs

The crux of Cano’s first argument is that Mexican schools do not provide adequate 

educational support services, and therefore his daughters will be deprived of receiving an adequate 

education. To support this argument, Cano relies on an excerpted article, which states that in the 
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2010–11 school year, less than 15% of Mexican schools received help from special education 

support teams.

Unquestionably, Cano’s daughters struggle academically. M.C. and C.C. are both 

significantly behind in school. When M.C. was in seventh grade, she was performing at a thirdgrade level. In fact, testing showed that M.C. was performing at approximately the fifth percentile. 

Due to her poor performance, M.C. received specialized support services for up to 55 minutes, 

three to five times per week. Despite this intervention, M.C.’s school records describe her as 

alternating between making “Adequate Progress” and “Not Adequate Progress.” M.C.’s mother, 

Salazar, submitted a declaration in support of Cano’s petition stating that M.C. was not progressing 

and that she hoped M.C. would be placed in a full special education program. Cano’s other 

daughter performed poorly too. When C.C. was in third grade, she was performing at a secondgrade level. C.C. was testing at approximately the fifteenth percentile. Like her older sister, C.C. 

received specialized support services for up to 45 minutes, four times per week. C.C.’s school 

records do not indicate any of the support services yielded “Adequate Progress.”

The issue in this case, however, is not whether the girls struggle academically; they 

undeniably do. Instead, the question is whether the special intervention they receive is so 

beneficial that depriving the girls of such intervention would result in exceptional or extremely 

unusual hardship. It is not. In fact, Cano has failed to prove the intervention services M.C. and 

C.C. are receiving provide any benefit. The record repeatedly shows that despite the significant 

intervention M.C. and C.C. receive, they are not making adequate progress. Without any evidence 

that the services his daughters receive are beneficial, Cano has failed to prove the deprivation of 

such intervention will cause exception or extremely unusual hardship. 
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We need not address whether Mexican schools offer special education services because 

the deprivation of such services does not result in hardship. However, even if we were to assume 

that the educational support M.C. and C.C. receive is beneficial and that they would not have 

access to the same level of instruction in Mexico, Cano’s argument still fails. This Court has 

held that “diminished educational options alone do not establish the required hardship.” Singh v. 

Rosen, 984 F.3d 1142, 1154–55 (6th Cir. 2021). To meet the threshold of exceptional or 

extremely unusual hardship, the petitioner must prove “that his ‘children would be deprived of 

all schooling or of an opportunity to obtain any education.’” Id. at 1155 (quoting In re 

Andazola-Rivas, 23 I. & N. Dec. 319, 323 (B.I.A. 2002)). Cano has not satisfied this high 

standard.

Relatedly, Cano claims the Board erred by failing to credit Salazar’s testimony that M.C. 

was not making adequate progress. In determining whether the new evidence about hardship 

merits reopening, the Board must “‘accept as true reasonably specific facts proffered by an alien 

in support of a motion to reopen unless it finds those facts to be inherently unbelievable.’” 

Hernandez-Perez, 911 F.3d at 317 (quoting Trujillo Diaz v. Sessions, 880 F.3d 244, 252 (6th Cir. 

2018)). Contrary to Cano’s claim, however, the Board did credit Salazar’s testimony. After 

addressing the school reports, the Board noted, “[M.C.’s] mother says that the child is not making 

progress and that the family hopes she will be able to receive full special education services.” 

(Order Den. Mot. to Reopen, A.R. # 4.) Salazar’s testimony does not change the outcome. She 

simply testified M.C. was not making adequate progress in school. In other words, she testified 

that the interventional services M.C. receives are not working. Her testimony supports the Board’s 

conclusion that the deprivation of these interventional services would not cause hardship because 

Cano has not proven they currently provide any benefit.
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b. M.C.’s Diagnosis of Pre-Diabetes

Cano’s second argument in favor of reopening his removal proceedings is that Mexico does 

not provide adequate resources for M.C. to manage her pre-diabetes. In support of this argument, 

Cano relies on an academic article purportedly finding diabetes treatment in Mexico is 

significantly less accessible than in the United States. The same article, however, states that “[t]he 

poor management of hyperglycemia is not due to lack of access to health services. The majority 

of patients are under treatment (94.1%) . . . .” (Simon Barquera et al., Diabetes in Mexico: Cost 

& Management of Diabetes and its Complications and Challenges for Health Policy, 

GLOBALIZATION & HEALTH (2013), A.R. # 96.) Here, the record does not establish by even a 

preponderance of the evidence that M.C. will not be able to access treatment. M.C. may have a 

more difficult time accessing future treatment, but Cano has not identified any obstacle to 

treatment that rises to the level of causing M.C. an exceptional or extremely unusual hardship. 

Additionally, Cano has not articulated any services or treatments that M.C. currently requires that 

will not be available in Mexico. His argument is based entirely on the assumption that M.C.’s 

health will worsen in the future to the point she will require medical treatment for diabetes.

Finally, Cano argues the Board erred by failing to consider the new evidence he proffered 

collectively. When reviewing a petition for reopening, “all hardship factors should be considered 

in the aggregate.” Monreal, 23 I. & N. Dec. at 64. Specifically, consideration is given “to the age, 

health, and circumstances of the qualifying family members, including how a lower standard of 

living or adverse country conditions in the country of return might affect those relatives.” In re 

Gonzalez Recinas, 23 I. & N. Dec. 467, 468 (BIA 2002). Here, the Board did consider all Cano’s 

evidence together. After rejecting each of his arguments separately, the Board stated, “We have 

reviewed the school reports for the respondent’s children and have considered them along with the 
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medical reports, statements from the respondent and his partner, and the other documents 

submitted with the motion.” (Order Den. Mot. to Reopen, A.R. # 5.) Even in the aggregate, the 

Board determined Cano’s case was not among the “truly exceptional” and “very uncommon” 

situations that warrant finding a hardship. Monreal, 23 I. & N. Dec. at 59, 62. We agree.

III. CONCLUSION

For the foregoing reasons, we conclude Cano has not introduced new evidence that his 

removal would create an exceptional or extremely unusual hardship for his daughters. 

Accordingly, we DENY his petition for review.