UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ FRANCISCO DE LA CRUZ-DEL REAL, Petitioner,

v. MERRICK B. GARLAND, United States Attorney General, Respondent. No. 23-9525 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ An immigration judge (IJ) denied Francisc o De La Cruz-Del Real’s application for cancellation of removal and ordered hi m removed to Mexico. He appealed the IJ’s decision to the Board of Immigration Appeals (BIA), which affirmed. He now petitions for our review of the agency’s removal order. We deny the petition.

* After examining the briefs and appella te record, this pa nel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 14, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 12 BACKGROUND Mr. De La Cruz is a na tive and citizen of Mexico who has been living in the United States illegally. In 2018 the Depa rtment of Homeland Security served him with a Notice to Appear (NTA) alleging he had entered the United States without being admitted or paroled after inspection. He admitted the al legations in the NTA and conceded his removability, but he sought cancellation of removal. To be eligible for a discretionary grant of cancellation of removal, Mr. De La Cruz had to esta blish four elements: (1) phys ical presence in the United States for a continuous pe riod of not less than ten y ears; (2) good moral character during that time; (3) no convictions for ce rtain enumerated offenses; and (4) “that removal would result in exceptional and ex tremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” 8 U. S.C. § 1229b(b)(1)(A)-(D). The government stipulated that he met the physical presence requirement, had not been convicted of a disqualifying offense, and had three qualifying relatives: his two citizen children, and his lawful permanent resident mother. After considering the character evidence Mr. De La Cruz presented, the IJ dete rmined that he es tablished good moral character. Thus, for purposes of review, the only relevant issue is whether he showed the requisite hardship, and because he does not challenge the IJ’s determination that he failed to establish hardship as to his mother, we limit our discussion of the background facts to those c oncerning his evidence of hard ship to his children. Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 23 At the hearing Mr. De La Cruz testifie d that his children—J .D., then age 9, and B.D., then age 6—live with their mother, and he has custody of them on the weekends. Mr. De La Cruz voluntarily pays $350 per month in support and provides medical insurance for the children. He tes tified that B.D. is doing well in school and does not suffer from any medical conditions . However, a psychological assessment of J.D. showed that he has Attention Deficit Hyperactivity Disorder, Oppositional Defiant Disorder , and anxiety. The assessment recommended that J.D. attend therapy and take medication for his disorders. Mr. De La Cruz testified that J.D. has behavioral issues but that he “seems [to be] getting a little bit be tter.” R. at 77. Counsel for Mr. De La Cruz said J.D.’s mo ther “refused to do anything other than receive pills,” and argued th at J.D. “would benefit” from having “a father’s presence.” Id. at 83. The IJ concluded Mr. De La Cruz’s evidence did not meet the exceptional and unusual hardship standard. The IJ acknow ledged that Mr. De La Cruz’s removal would have an emotional impact on both ch ildren, but the IJ noted that “family separation is often an unfortu nate side effect of removal proceedings” and found the impact of this family’s separation did not “go substantially be yond that which is normally experienced by a family member in a similar case.” Id. at 34. The IJ also acknowledged J.D.’s diagnoses and behavioral issues a nd that his “mother does not appear to have been particularly coopera tive with the mental health evaluation.” Id. The IJ also recognized that Mr. De La Cruz’s presence in J.D.’s “life might very well have an impact on his beha vior in the future.” Id. Again, however, the IJ concluded Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 34 the hardship did not “rise to the leve l” of “exceptional and extremely unusual hardship” for J.D. because he is getting medication, is doi ng better, is in school, and “will continue to be cared for.” Id. at 35. Finally, the IJ recognized that Mr. De La Cruz would be unable to “repla ce the income he currently makes in the United States in Mexico,” and that the loss of financial support would be a hardship for the children. Id. . But the IJ concluded that hard ship did not meet the statutory standard, “even if considered in the aggregate along with the behavior issues being suffered by [J.D.].” Id. Mr. De La Cruz appealed to the BIA, which affirmed without opinion pursuant to 8 C.F.R. § 100 3.1(e)(4).
DISCUSSION
1. Jurisdiction and Standard of Review The BIA’s affirmance without opinion ma kes the IJ’s decisi on the final agency determination for purposes of our review. See Uanreroro v. Gonzales , 443 F.3d 1197, 1203 (10t h Cir. 2006); see also 8 C.F.R. § 1003.1(e)(4)(ii). We review the IJ’s decision under the substan tial evidence standard. See Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004). Under that standard, the IJ’s factual findi ngs “are conclusive unless the record demonstrates that any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (internal quotation mark s omitted). We must uphold the IJ’s decision if it is “supporte d by reasonable, substantial, and probative evidence on the record cons idered as a whole.” Id. (internal quotation marks omitted). Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 45 While this appeal was pending, the Supreme Court clarified that “the application of the statutory ‘exceptional a nd extremely unusual hardship’ standard to a given set of facts presents a mixed ques tion of law and fact” subject to judicial review under § 1229b(b)(1)(D). Wilkinson v. Garland , 601 U.S. 209, 221 (2024). 1
That is true even in case s that “require[] a close ex amination of the facts.” Id. at 222. We are “still without jurisdiction to review a factual question raised in an application for discretionary relief.” Id. Thus, the “IJ's factfinding on credibility, the seriousness of a family memb er’s medical condition, or th e level of financial support a noncitizen currently provides remain unreviewable.” Id. at 225. But “[w]hen an IJ weighs those found facts and applies the ‘exceptional and extremely unusual hardship’ standard, . . . the result is a mixed question of law and fact that is reviewable under § 1252(a)(2)(D).” Id. at 222. “Because this mixed question is primarily factual, that re view is deferential.” Id. at 225; see also Martinez v. Garland , 98 F.4th 1018, 1021 (10th Cir. 2024) (stating that under Wilkinson , “we apply a deferential standard to review the BIA’s hardship determination”). 2. Application Mr. De La Cruz argues the IJ erred in concluding he did not meet the statutory hardship standard for his two children. Specifically, he argues the IJ “misappl[ied] the law,” improperly weighed the evidence, a nd failed to consider the totality of the circumstances. Pet’r Br. at 5.

1 Wilkinson abrogated our decision in Galeano-Romero v. Barr , 968 F.3d 1176, 1182-84 (10th Cir. 2020). 601 U.S. at 217 & n.2. Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 56 In assessing hardship, the agency c onsiders several factors, including the “ages, health, and circumstances” of the applicant and his qualifying relatives. In re Monreal-Aguinaga , 23 I. & N. Dec. 56, 63 (BIA 2001). “[A]ll hardship factors should be considered in the aggregate when assessing exceptional and extremely unusual hardship.” Id. at 64. The applicant must sh ow that the hardship to his qualifying relatives if he is removed woul d be “substantially beyond the ordinary hardship that would be expect ed when a close family memb er leaves this country.” Id. at 62 (internal quotation marks omitted). Mr. De La Cruz argues the IJ’s decision is inconsistent with In re Gonzalez
Recinas , 23 I. & N. Dec. 467 (BIA 2002) (en ba nc). But the facts and circumstances of Recinas differ from those of this case. In Recinas , the respondent was the single mother of six children, four of whom we re United States citizens ranging in age from 5 to 12 years old. She depended on her mo ther to watch the children while she worked, and there was no indication the child ren’s father remained actively involved in their lives. The children would return to Mexico with their mother if she were removed but they had never even traveled there and had difficulty speaking Spanish. Under these circumstances, th e BIA found the case presen ted a close question, and fell “on the outer limit of the narrow spect rum of cases in whic h the exceptional and extremely unusual hardship standard will be met.” Id. at 470. The BIA based its conclusion on the “cumulative” hardship factors, includi ng “the heavy financial and familial burden on the adult respondent, the lack of support from the children’s father, the United States ci tizen children’s unfam iliarity with the Spanish language, Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 67 the lawful residence in this country of al l of the respondent’s immediate family, and the concomitant lack of family in Mexico.” Id. at 472 (internal quotation marks omitted). Mr. De La Cruz’s case does not present such an extraordinary, cumulative burden of unalleviated hardship factors, and the IJ’s hardship analysis in his case was not inconsistent with Recinas ’s cumulative approach. As Recinas stated, the “cumulative factors” present there were “unusual and will not typically be found in most other cases, where respond ents have smaller families and relatives who” live in the United States. Id. Mr. De La Cruz reiterates the ha rdships his children may face upon his removal, see Pet’r Br. at 7-8, but he does not show that the IJ ignored or failed to discuss the aggregate impact of these harm s when making its hardship determination. In sum, Mr. De La Cruz has not es tablished that the IJ, contrary to the agency’s precedent, faile d to assess the aggregate impact of hardship to his children. Nor has he shown, under our deferential standard of revi ew, that the IJ erred in concluding that he failed to show the requi red level of hardship. We therefore deny the petition for review on th e hardship issue.
CONCLUSION The petition for review is denied.

Entered for the Court

Per Curiam Appellate Case: 23-9525 Document: 010111065185 Date Filed: 06/14/2024 Page: 7