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 Francisco De La Cruz-Del Real’s application 

for cancellation of removal and ordered him 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 appellate record, this panel 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 This order and judgment is not binding precedent, 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 14, 2024

Christopher M. Wolpert 

Clerk of Court

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BACKGROUND

 Mr. De La Cruz is a native and citizen of Mexico who has been living in the 

United States illegally. In 2018 the Department 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 allegations 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 establish four elements: (1) physical presence in the United 

States for a continuous period of not less than ten years; (2) good moral character 

during that time; (3) no convictions for certain enumerated offenses; and (4) “that 

removal would result in exceptional and extremely 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 determined that he established 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 concerning his evidence of hardship to his children. 

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 At the hearing Mr. De La Cruz testified 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 testified 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 better.” R. at 77. 

Counsel for Mr. De La Cruz said J.D.’s mother “refused to do anything other than 

receive pills,” and argued that 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 acknowledged that Mr. De La Cruz’s removal 

would have an emotional impact on both children, but the IJ noted that “family 

separation is often an unfortunate side effect of removal proceedings” and found the 

impact of this family’s separation did not “go substantially beyond 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 and that his “mother does not 

appear to have been particularly cooperative 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 behavior in the future.” Id. Again, however, the IJ concluded 

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the hardship did not “rise to the level” of “exceptional and extremely unusual 

hardship” for J.D. because he is getting medication, is doing 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 “replace 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 hardship 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. § 1003.1(e)(4). 

DISCUSSION 

 1. Jurisdiction and Standard of Review 

 The BIA’s affirmance without opinion makes the IJ’s decision the final agency 

determination for purposes of our review. See Uanreroro v. Gonzales, 443 F.3d 

1197, 1203 (10th Cir. 2006); see also 8 C.F.R. § 1003.1(e)(4)(ii). We review the IJ’s 

decision under the substantial evidence standard. See Yuk v. Ashcroft, 355 F.3d 1222, 

1233 (10th Cir. 2004). Under that standard, the IJ’s factual findings “are conclusive 

unless the record demonstrates that any reasonable adjudicator would be compelled 

to conclude to the contrary.” Id. (internal quotation marks omitted). We must 

uphold the IJ’s decision if it is “supported by reasonable, substantial, and probative 

evidence on the record considered as a whole.” Id. (internal quotation marks 

omitted). 

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While this appeal was pending, the Supreme Court clarified that “the 

application of the statutory ‘exceptional and extremely unusual hardship’ standard to 

a given set of facts presents a mixed question 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 cases that “require[] a close examination 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 member’s medical condition, or the 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 review 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, and 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. 

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 In assessing hardship, the agency considers 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 show that the hardship to his 

qualifying relatives if he is removed would be “substantially beyond the ordinary 

hardship that would be expected when a close family member 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 banc). 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 were United States citizens ranging in age from 

5 to 12 years old. She depended on her mother to watch the children while she 

worked, and there was no indication the children’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, the BIA found the case presented a close question, and 

fell “on the outer limit of the narrow spectrum of cases in which the exceptional and 

extremely unusual hardship standard will be met.” Id. at 470. The BIA based its 

conclusion on the “cumulative” hardship factors, including “the heavy financial and 

familial burden on the adult respondent, the lack of support from the children’s 

father, the United States citizen children’s unfamiliarity with the Spanish language, 

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the lawful residence in this country of all 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 respondents have smaller families and relatives who” live in 

the United States. Id. 

 Mr. De La Cruz reiterates the hardships 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 harms when making its hardship determination. 

 In sum, Mr. De La Cruz has not established that the IJ, contrary to the 

agency’s precedent, failed to assess the aggregate impact of hardship to his children. 

Nor has he shown, under our deferential standard of review, that the IJ erred in 

concluding that he failed to show the required level of hardship. We therefore deny 

the petition for review on the hardship issue. 

CONCLUSION 

 The petition for review is denied. 

Entered for the Court 

Per Curiam 

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