*

The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0268p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SERVANDO ABURTO-ROCHA,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General of the

United States,

Respondent.

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No. 07-3871

On Petition for Review of an Order

of the Board of Immigration Appeals.

No. A78 472 544.

Submitted: July 25, 2008

Decided and Filed: July 28, 2008 

Before: MOORE and SUTTON, Circuit Judges; ALDRICH, District Judge.*

_________________

COUNSEL

ON BRIEF: Jonathan Golden, GOLDEN & JERNIGAN, Grand Rapids, Michigan, for Petitioner.

Jennifer L. Lightbody, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

_________________

OPINION _________________

SUTTON, Circuit Judge. Servando Aburto-Rocha seeks review of an order of the Board of

Immigration Appeals (BIA) denying his application for cancellation of removal. Because the BIA

did not unreasonably apply its own precedent in rejecting his application, we deny the petition for

review.

I.

Aburto-Rocha first entered the United States in 1984 in or near San Ysidro, California. In

2001, the Immigration & Naturalization Service charged him with removability as an alien present

1
No. 07-3871 Aburto-Rocha v. Mukasey Page 2

in the country without having been admitted or paroled. At his initial hearing before an Immigration

Judge (IJ) in December 2001, Aburto-Rocha conceded the material facts alleged in his Notice to

Appear and his removability.

In March 2002, he applied for cancellation of removal. And in December 2003, the IJ denied

Aburto-Rocha’s application, concluding that he had failed to show two of the four statutory

requirements for cancellation: that he had been present in this country for the requisite continuous

ten-year period, 8 U.S.C. § 1229b(b)(1)(A), and that his “removal would result in exceptional and

extremely unusual hardship to [his] spouse, parent, or child” who is either a U.S. citizen or lawful

permanent resident, id. § 1229b(b)(1)(D). Aburto-Rocha challenged the IJ’s resolution of both

issues before the BIA, arguing in particular that in passing on the hardship element the IJ had

“misapplied” two controlling BIA decisions: In re Monreal-Aguinaga, 23 I. & N. Dec. 56 (2001),

and In re Andazola-Rivas, 23 I. & N. Dec. 319 (2002). The BIA reversed, concluding that the IJ’s

hardship analysis was “incomplete,” and remanded the case for further consideration of the issue.

JA 51.

On remand, the IJ denied Aburto-Rocha’s application again, this time providing a more

detailed analysis of the hardship prong. Aburto-Rocha again appealed to the BIA, again challenging

the IJ’s resolution of the continuous-presence and hardship requirements. The BIA affirmed the IJ’s

determination on the hardship issue and found it unnecessary to reach the continuous-presence

question.

II.

The Attorney General “may cancel the removal of . . . an alien who is . . . deportable” if the

alien shows that (1) he has been present in the country for a continuous ten-year period before

applying for cancellation, (2) he “has been a person of good moral character during such period,”

(3) he has not been convicted of certain identified offenses and (4) “removal [of the alien] 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). No one disputes that Aburto-Rocha satisfies the second and third of these

conjunctive requirements; the question is whether he satisfies the first and fourth, and in particular

whether the BIA was correct in holding that he did not satisfy the fourth prong.

A.

Before undertaking this inquiry, we must determine our jurisdiction over it. Aburto-Rocha

faces two jurisdictional hurdles. Section 1252(a)(2)(B)(i) of Title 8 prevents us from reviewing

denials of applications for cancellation of removal, and § 1252(a)(2)(B)(ii) prevents us from

reviewing “any other decision or action of the Attorney General which is specified” to be in his or

her “discretion.” See also Bichi v. Gonzales, 157 F. App’x 835, 837 (6th Cir. Nov. 28, 2005) (per

curiam). The two provisions at first glance seem to lead to a jurisdictional dead end: Aburto-Rocha

is seeking review of the denial of an application for cancellation of removal, and that decision

generally rests in the discretion of the Attorney General. See Garza-Moreno v. Gonzales, 489 F.3d

239, 242 (6th Cir. 2007); Valenzuela-Alcantar v. INS, 309 F.3d 946, 949–50 (6th Cir. 2002) (holding

that a BIA decision on the hardship requirement is a discretionary decision not subject to judicial

review).

Yet two exceptions to these provisions—one explicitly drawn by the statute, one inferred

from its general framework—modify the (seemingly) categorical imperative of the statute. First,

the statute elsewhere explicitly permits us to review “constitutional claims or questions of law.” See

8 U.S.C. § 1252(a)(2)(D). Second, as the heading of the underlying provision suggests, see id.

§ 1252(a)(2)(B) (“Denials of discretionary relief”), the statute prevents us from reexamining only
No. 07-3871 Aburto-Rocha v. Mukasey Page 3

discretionary decisions by the agency, including discretionary denials of an application for

cancellation of removal. “[N]on-discretionary decisions,” by contrast, are within our purview, even

where they “underlie determinations that are ultimately discretionary.” Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 711 (6th Cir. 2004); see also Santana-Albarran v. Ashcroft, 393 F.3d 699, 703 (6th

Cir. 2005) (holding that § 1252(a)(2)(B) “divests jurisdiction of a court to review judgments

regarding the granting of discretionary relief, including the cancellation of removal,” but does not

remove jurisdiction to review the non-discretionary fact of an alien’s continuous presence in the

United States). 

Aburto-Rocha insists that his challenge to the BIA’s hardship decision—premised on the

theory that the BIA failed to follow its own precedent—presents a question of law falling within the

first exception. He may be correct, and we have suggested as much before. See Billeke-Tolosa, 385

F.3d at 711–12 (describing an alien’s claim that the BIA failed to follow its own precedent as an

assertion of “legal error” and noting that such a failure was barred by the BIA’s own regulations and

potentially the alien’s due process rights). But we need not (and therefore do not) resolve the point

today, because his claim comes within the exception for non-discretionary decisions.

No doubt, we (like every other circuit) have held that the BIA’s hardship decision is a

discretionary one and that, as a result, it generally lies beyond our jurisdiction. See ValenzuelaAlcantar, 309 F.3d at 949–50 (adopting this rule and citing other circuits’ decisions to the same

effect); Hermez v. Gonzales, 227 F. App’x 441, 443–44 & n.1 (6th Cir. Mar. 28, 2007) (holding that

the BIA’s decision on the hardship prong is a discretionary decision beyond our jurisdiction and that

it does not fall within the exception for constitutional and legal claims). But the choice by the BIA

to disregard its own binding precedent—even when deciding an issue that is within its discretion—is

not itself a discretionary decision Congress has excluded from review. See Billeke-Tolosa, 385 F.3d

at 711–12. The BIA’s regulations themselves indicate that adherence to precedent is a nondiscretionary act, as they require the agency to follow its own precedents except to the extent they

are modified or overruled by the BIA or the Attorney General. See 8 C.F.R. § 1003.1(g). We have

jurisdiction, in short, over this challenge to a non-discretionary error.

B.

That we may review a claim that the BIA ignored its own precedent in ruling on a hardship

application, however, does not give us authority to second guess every choice the agency makes

about how to apply uncertain or even conflicting precedents in a given context. While the

application of precedent to a dispute may be “non-discretionary” in one sense, that does not make

it mechanical in all settings and does not mean that reviewing courts are free to override the BIA’s

decision on the basis of what they perceive as a better reading of the agency’s own precedent. What

is generally true in administrative law remains true here: An agency’s interpretation of its own

precedents receives considerable deference, see, e.g., NSTAR Elec. & Gas Corp. v. FERC, 481 F.3d

794, 799 (D.C. Cir. 2007); cf. Auer v. Robbins, 519 U.S. 452, 461 (1997) (reciting the longstanding

rule of deference to an agency’s interpretations of its own regulations)—a form of deference that

applies in equal measure to the BIA’s interpretation of its precedents, see, e.g., Zheng v. U.S. Dep’t

of Justice, 416 F.3d 129, 131 (2d Cir. 2005). That rule makes especially good sense here:

stringently scrutinizing the BIA’s determinations of which precedents apply in which contexts (and

with what force) could easily devolve into—or even serve as a mask for—replacing the BIA’s

hardship judgment with our own. In reviewing Aburto-Rocha’s challenge, we thus confine

ourselves to asking whether the BIA reasonably construed and applied its own precedents in this

case. 

Although the BIA’s analysis of its precedents was brief, it was not unreasonable. In

identifying the standard of hardship Aburto-Rocha had to meet, the BIA expressly relied on its

decisions in Monreal-Aguinaga, 23 I. & N. Dec. 56, and Andazola-Rivas, 23 I. & N. Dec.
No. 07-3871 Aburto-Rocha v. Mukasey Page 4

319—decisions it has previously described as the “seminal interpretations of the meaning of

‘exceptional and extremely unusual hardship’” in the cancellation-of-removal statute, In re Recinas, 23 I. & N. Dec. 467, 472 (2002), and decisions Aburto-Rocha himself has implicitly acknowledged

still set the controlling standard, see JA 53 (challenging the IJ’s first ruling on the hardship element

on the ground that it “misapplied” the Board’s decisions in Monreal-Aguinaga and Andazola-Rivas).

A review of those decisions confirms that the BIA fairly applied its precedent here. 

In Monreal-Aguinaga, the alien’s cancellation claim turned exclusively on the hardship

prong, and the BIA examined the relevant statutory provision in great detail, sifting through

evidence of the provision’s text, structure and history to determine what an applicant for cancellation

of removal had to demonstrate. See 23 I. & N. Dec. at 58–64. To meet this standard, it concluded,

the alien must show that his “qualifying relatives”—a spouse, parent or child that is either a U.S.

citizen or a legal permanent resident, see 8 U.S.C. § 1229b(b)(1)(D)—“would suffer hardship that

is substantially different from, or beyond, that which would normally be expected from the

deportation of an alien with close family members here,” Monreal-Aguinaga, 23 I. & N. Dec. at 65.

Applying that standard to the facts before it—facts bearing a close resemblance to today’s case—the

BIA concluded that the alien had failed to meet this burden. See id. at 64–65 (observing that the

alien “would likely have . . . [satisfied the] ‘extreme’ hardship” requirement imposed by the previous

version of the statute—as his departure after 20 years in the country would result in the “loss of

long-standing employment,” various hardships for his school-age U.S.-citizen children and

separation from his remaining extended family in the United States—but explaining that this fell

short of the high standard Congress had established via the “exceptional and extremely unusual

hardship” requirement). 

In Andazola-Rivas, decided less than a year later, the BIA applied the Monreal-Aguinaga

standard. It first noted several additional sources of hardship not identified in the previous

case—that the alien was an unwed mother who likely would encounter unfavorable employment

prospects in Mexico due to her gender, that her children’s educational opportunities would be

constricted and that she would have no family in Mexico to support her. See 23 I. & N. Dec. at

323–24. Still, however, it concluded that it “[could not] meaningfully distinguish [that] case

from . . . Monreal[-Aguinaga].” Id. at 324. “[A]lmost every case,” the BIA explained, “will present

some particular hardship,” but the burdens the alien had identified were “simply not substantially

different from those that would normally be expected upon removal to a less developed country.”

Id.

In reviewing Aburto-Rocha’s case, the BIA cited both decisions and accurately distilled the

standard they embody. Applying that standard, it addressed the principal harms to his U.S.-citizen

children that Aburto-Rocha had argued would stem from his removal—including “emotional

hardship” caused by the separation from his family remaining in the United States, “difficulty

adjusting to life in Mexico” and “reduced educational and economic opportunities in Mexico.” JA

6. Though far from trivial, these harms, the BIA reasoned, were not “substantially beyond that

which ordinarily would be expected to result from the [alien’s] removal.” Id. And the one difficulty

Aburto-Rocha identified that is not common to most cancellation-of-removal applicants—his eldest

daughter’s health problems—was not enough to tip the balance because he failed to show that

“adequate medical treatment and monitoring” would be unavailable if the daughter left for Mexico

with him. Id.

In critiquing this analysis, Aburto-Rocha notes that the BIA failed to cite or apply its later

 decision in Recinas, 23 I. & N. Dec. 467. While acknowledging that “the [BIA] is not required to

cite all its decisions in any opinion,” he insists that “[n]o case could be closer to Recinas” than the

present one, Br. at 12, and thus the BIA “deliberately left out its most similar precedent,” id. at 14.

But in emphasizing this shortcoming in the BIA’s order, if it is one at all, Aburto-Rocha makes more

out of Recinas than the case deserves. Like Monreal-Aguinaga and Andazola-Rivas, Recinas
No. 07-3871 Aburto-Rocha v. Mukasey Page 5

involved a Mexican-born alien who, along with her several children, had been present in the United

States for more than a decade (excluding one brief absence). See 23 I. & N. Dec. at 467–68. The

BIA acknowledged that “any analysis of [the] exceptional and unusual hardship” element must begin

with the standard established in Monreal-Aguinaga and reaffirmed in Andazola-Rivas. See id. at

469; see also id. at 472 (observing that there was “no need to depart from the analysis set forth in

[Monreal-Aguinaga and Andazola-Rivas],” as “[t]he hardship factors present in [Recinas] are more

different in degree than in kind” from the prior cases).

After summarizing its two prior decisions and the high threshold they create, the BIA

concluded that Recinas fell by a “close margin” on the other side of the line. Id. at 471. The burden

on the alien’s children was accentuated by the fact that the alien was a single mother and had no

other family in Mexico, both “critical factors that distinguish[ed] her case” from other cancellation

applications. Id. The BIA stressed, however, that it was a “close” case that reflected “the outer limit

of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard

will be met.” Id. at 470. 

Although the BIA would have done well to mention and distinguish Recinas, its failure to

do so was not unreasonable. The order cited the decisions that Recinas itself acknowledged are

controlling. And because Aburto-Rocha, unlike the single mother with no family in Mexico at issue

in Recinas, apparently does have family in Mexico (his parents and two brothers)—not to mention

his common-law wife and mother of his six children, who the IJ observed is likely to join him in

Mexico (as she too is apparently ineligible for cancellation of removal)—the BIA had little reason

to cite, or easily distinguish, Recinas. 

To be sure, as the IJ candidly observed, there is room to argue that Recinas is “to some

extent . . . seemingly inconsistent” with the two prior decisions. JA 71. But even if that is true, it

is not for us to dictate to the BIA how it must mediate that tension in cases at the margin. Nor are

we in a position to require it to offer a detailed justification for why it chose to cite certain cases but

omit to distinguish others in each of its opinions. Given the material differences between the facts

presented here and those presented in Recinas, at any rate, Aburto-Rocha has offered no basis for

thinking that the balance the BIA struck here—one premised on the application of MonrealAguinaga’s general rule, not Recinas’s narrow, fact-specific exception—was unreasonable. 

III.

For these reasons, we deny the petition for review.