UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOSE ALEJANDRO VALERIO-LOPEZ, 

a/k/a Pedro Torres-Gamez, 

 Petitioner, 

v. 

MERRICK B. GARLAND, 

United States Attorney General,

 

 Respondent. 

No. 20-9588 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT**

_________________________________ 

Before MORITZ, BALDOCK, and KELLY, Circuit Judges. 

_________________________________ 

Petitioner Jose Alejandro Valerio-Lopez filed an application for cancellation 

of removal under 8 U.S.C. § 1229b(b), which an immigration judge (IJ) denied after 

a hearing. The Board of Immigration Appeals (BIA) affirmed on appeal. 



 On March 11, 2021, Merrick B. Garland became Attorney General of the 

United States. Consequently, his name has been substituted for William P. Barr as 

Respondent, per Fed. R. App. P. 43(c)(2). 

** After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 16, 2021

Christopher M. Wolpert 

Clerk of Court
2 

Valerio-Lopez then filed a petition for review. We dismiss the petition in part for 

lack of jurisdiction, and affirm in part the BIA’s decision denying Valerio-Lopez’s 

application. 

I. Background 

 Valerio-Lopez is a native of Mexico who last entered the United States without 

inspection in 2004. In April 2010, the Department of Homeland Security issued 

Valerio-Lopez a Notice to Appear in removal proceedings, charging him with being 

subject to removal under 8 U.S.C. § 1182(a)(6)(A)(i). 

Valerio-Lopez appeared in immigration court in January 2011 and conceded 

removability. He indicated his intent to apply for cancellation of removal under 

8 U.S.C. § 1229b(b)(1). Later that year Valerio-Lopez submitted that application, 

arguing that his removal would result in hardship to his four U.S.-born children. 

See id. § 1229b(b)(1)(D). 

 The IJ held a hearing in June 2018. By that time, Valerio-Lopez’s two older 

children had reached the age of 21 and therefore were not considered qualifying 

relatives under § 1229b(b)(1)(D). Valerio-Lopez testified, however, that if he were 

removed to Mexico, his two younger daughters, E.V.M. and A.V.M., would suffer 

the requisite “exceptional and extremely unusual hardship” under § 1229b(b)(1)(D). 

He testified that E.V.M., who was born in 2007, had received several months of 

counseling for anxiety in 2010 when Valerio-Lopez was temporarily placed in 

immigration detention. Valerio-Lopez submitted a corroborating letter from the 

licensed professional counselor who treated E.V.M. Valerio-Lopez acknowledged, 
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however, that E.V.M. no longer requires any treatment or medication. He also 

testified that his youngest daughter, A.V.M., has asthma that was severe at one time 

but is now controlled with an inhaler. Finally, Valerio-Lopez testified that if he were 

removed to Mexico his minor daughters would suffer financial hardship because he is 

the sole financial provider for his family and his wife Erica, who plans to stay in the 

United States with E.V.M and A.V.M in the event of her husband’s removal, would 

be forced to find employment. 

 The IJ accepted as credible Valerio-Lopez’s testimony and other evidence. 

The IJ also concluded Valerio-Lopez had satisfied three of the four elements of 

§ 1229b(b)(1)—namely, he had been physically present in the United States for a 

continuous period of 10 years prior to the filing of his application; he had been a 

person of good moral character during that time; and he had not been convicted of 

any disqualifying criminal offenses. See id. § 1229b(b)(1)(A)-(C). 

As to the fourth element, however, the IJ concluded removal would not result 

in the requisite level of hardship. See id. § 1229b(b)(1)(D). The IJ noted that while 

E.V.M. had been diagnosed with anxiety, she had since recovered. She further 

observed that A.V.M.’s asthma was adequately managed with an inhaler. Finally, the 

IJ found that while E.V.M. and A.V.M. would face some emotional and financial 

hardship if their father were removed to Mexico, that hardship, even taken in the 

aggregate, would not meet the “exceptional and extremely unusual” standard. On 

appeal, the BIA adopted the IJ’s reasoning and affirmed in a two-page opinion. This 

petition followed. 
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II. Discussion 

Valerio-Lopez makes four arguments. First, he contends the BIA failed to 

consider the hardship his removal would cause his two oldest children when the delay in 

hearing his application caused those children to “age out.” Second, he argues he received 

ineffective assistance of counsel. Third, he argues that in its hardship analysis, the BIA 

committed legal error in relying upon In re J-J-G-, 27 I. & N. Dec. 808 (BIA 2020). 

Finally, Valerio-Lopez argues the BIA committed legal error by mischaracterizing or 

ignoring relevant hardship evidence. We dismiss his first two arguments for failure to 

exhaust, and we reject his other two arguments on the merits. 

A. Failure to Exhaust 

 Valerio-Lopez did not raise before the agency his argument concerning the delay 

in having his application heard and the resulting inability to consider hardship to his two 

older children. We may review only those arguments for which a petitioner has 

exhausted all administrative remedies. 8 U.S.C. § 1252(d)(1). Thus, “the failure to raise 

an issue on appeal to the BIA constitutes failure to exhaust administrative remedies with 

respect to that question and deprives the Court of Appeals of jurisdiction to hear the 

matter.” Robles-Garcia v. Barr, 944 F.3d 1280, 1283 (10th Cir. 2019) (alterations, 

italics, and internal quotation marks omitted). Because Valerio-Lopez did not present 

this argument to the IJ or the BIA, we lack jurisdiction to review it in the first instance. 

 Similarly, Valerio-Lopez did not raise his ineffective assistance of counsel 

argument before the BIA. “The BIA permits an alien to move to reopen the 

administrative proceedings when his counsel’s incompetence has prevented him from 
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reasonably presenting his case.” Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 

1999) (internal quotation marks omitted). “[B]ecause the BIA provides a mechanism for 

hearing an ineffective assistance claim, an alien’s failure to raise the claim to the BIA 

deprives this court of jurisdiction to review it.” Id. We therefore lack jurisdiction over 

Valerio-Lopez’s ineffective assistance argument. 

B. Cancellation of Removal 

Our jurisdiction over the remaining two arguments is limited. The 

Immigration and Nationality Act provides that “no court shall have jurisdiction to 

review . . . any judgment regarding the granting of relief under section . . . 1229b.” 

8 U.S.C. § 1252(a)(2)(B)(i). This provision precludes jurisdiction to review the 

discretionary aspects of a decision concerning cancellation of removal under 

§ 1229b(b)(1). Galeano-Romero v. Barr, 968 F.3d 1176, 1181 (10th Cir. 2020). 

“Such discretionary aspects include any underlying factual determinations as well as 

the determination of whether . . . removal . . . would result in exceptional and 

extremely unusual hardship to a qualifying relative under 8 U.S.C. 

§ 1229b(b)(1)(D).” Id. (internal quotation marks omitted). 

The INA does, however, provide jurisdiction to review “constitutional claims” 

and “questions of law”—including those arising under § 1229b(b)(1). See 

§ 1252(a)(2)(D). Valerio-Lopez attempts to raise two questions of law, both of 

which we reject. 

 First, Valerio-Lopez observes that in rejecting his application, the BIA cited to 

In re J-J-G-, 27 I. & N. Dec. 808, which he contends impermissibly redefines 
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hardship beyond what § 1229b(b)(1)(D) requires. We disagree. In re J-J-G- held 

that to the extent a cancellation application is based on the health of a qualifying 

relative, the applicant must present “persuasive and sufficiently specific testimony 

regarding the seriousness of a qualifying relative’s medical condition . . . .” 

27 I. & N. Dec. at 811-12. Thus, In re J-J-G- does not redefine the hardship 

standard, but simply specifies the type of evidence required to meet it. The BIA cited 

In re J-J-G- in support of its observation that the agency’s analysis must be based on 

a “consider[ation of] the hardship factors in the aggregate.” R. at 4; see In re J-J-G-, 

27 I. & N. Dec. at 811 (observing that the hardship standard “is based on a 

cumulative consideration of all hardship factors”). We discern no error in the BIA’s 

reliance on In re J-J-G-. 

 Second, Valerio-Lopez asserts the BIA committed legal error by 

mischaracterizing and ignoring hardship evidence. This argument, however, amounts 

to a disagreement with how the BIA weighed the hardship factors in light of 

E.V.M.’s and A.V.M.’s medical conditions. We lack jurisdiction over such 

determinations. See, e.g., Galeano-Romero, 968 F.3d at 1182 n.8 (holding argument 

that BIA “improperly discount[ed] the hardship his wife would suffer upon 

[petitioner’s] removal . . . boils down to a contention that the [BIA] improperly 

weighed the” evidence). Even if Valerio-Lopez’s arguments could be characterized 

as questions of law, they are meritless. He contends the BIA erred in stating 

A.V.M.’s asthma was under control, but he himself testified that her asthma is 

controlled with an inhaler and that “[s]he’s not really using it” anymore. R. at 185. 
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Similarly, he argues the BIA mischaracterized E.V.M.’s anxiety as having been 

resolved, but the BIA actually found that while Valerio-Lopez’s “removal may have 

some impact on [E.V.M.’s] life and development,” the “record show[ed] that with 

therapy, [E.V.M.] learned to successfully cope with her anxiety even when her father 

was not present.” R. at 4. 

 In short, we hold the BIA committed no legal error in denying the application 

for cancellation, and therefore affirm the BIA’s decision. 

III. Conclusion 

We dismiss in part Valerio-Lopez’s petition for failure to exhaust his 

arguments concerning hardship to his now-adult children and ineffective assistance 

of counsel. As to his exhausted arguments, we affirm the BIA’s denial of the 

application for cancellation. 

Entered for the Court 

Nancy L. Moritz 

Circuit Judge