United States Court of Appeals

for the Fifth Circuit

No. 19-60467

Summary Calendar

Antonio Avila-Baeza, 

Petitioner,

versus

William P. Barr, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A087 488 484

Before Davis, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

Antonio Avila-Baeza, a native and citizen of Mexico, seeks review of 

the dismissal by the Board of Immigration Appeals (BIA) of his appeal from 

the denial of his application for cancellation of removal after reopening and 

remand for consideration of newly submitted evidence. The immigration 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 14, 2020

Lyle W. Cayce

Clerk

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judge (IJ) determined that the newly submitted evidence did not alter its 

earlier determination that Avila-Baeza failed to show that his removal would 

result in “exceptional and extremely unusual hardship” to his two qualifying 

daughters under 8 U.S.C. § 1229b(b)(1)(D). 

In his petition for review, Avila-Baeza argues that (1) the BIA and IJ 

erred by failing to consider the future hardships that his qualifying family 

members would experience as a result of his removal; (2) the BIA erred by 

applying the wrong legal standard when evaluating his application for 

cancellation of removal; and (3) the BIA erred by refusing to consider his 

eligibility for voluntary departure. Although we lack jurisdiction under 

8 U.S.C. § 1252(a)(2)(B)(i) to consider the BIA’s purely discretionary denial 

of cancellation of removal, a challenge to “the application of a legal standard 

to undisputed or established facts” is a legal question that may be reviewed

pursuant to § 1252(a)(2)(D). Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 

(2020).

On petition for review of a BIA decision, we review factual findings 

for substantial evidence and questions of law de novo. Lopez-Gomez v. 

Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). Despite the de novo standard for 

reviewing legal questions, we “afford substantial deference to the BIA’s 

interpretation of immigration statutes unless there is compelling evidence 

that the BIA’s interpretation is incorrect.” Arif v. Mukasey, 509 F.3d 677, 

680 (5th Cir. 2007) (internal quotation marks and citation omitted). We 

review the IJ’s decision to the extent that it affected the BIA’s decision. 

Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).

Assuming without deciding that § 1229b(b)(1)(D)’s hardship inquiry 

is future-oriented, the record shows that the IJ and BIA considered the future 

hardships Avila-Baeza’s qualifying daughters would experience due to his 

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removal. Avila-Baeza’s contention to the contrary is not supported by the 

record.

Avila-Baeza contends that the BIA erred by applying the higher 

hardship standard for cancellation of removal espoused in In re MonrealAguinaga, 23 I. & N. Dec. 56 (BIA 2001) (en banc), and In re Andazola-Rivas, 

23 I. & N. Dec. 319 (BIA 2002) (en banc), instead of the more lenient 

standard that was used to assess the hardship requirement for suspension of 

deportation. “[T]the BIA’s interpretation of an ambiguous provision of a 

statute that it administers” may be entitled to deference under Chevron, 

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). CantareroLagos v. Barr, 924 F.3d 145, 149 (5th Cir. 2019). Although we have not yet 

considered this issue, every other circuit that has addressed this question has 

determined that the BIA’s interpretation of the hardship requirement for 

cancellation of removal is entitled to deference. See Ocampo-Guaderrama v. 

Holder, 501 F. App’x 795, 798-99 (10th Cir. 2012); Pareja v. Att’y Gen., 615 

F.3d 180, 190-95 (3d Cir. 2010); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 

1006-07 (9th Cir. 2003); Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 

1333-34 (11th Cir. 2003), overruled on other grounds by Patel v. U.S. Att’y Gen., 

___ F.3d ___, No. 17-10636, 2020 WL 4873196, 1 (11th Cir. Aug. 19, 2020).

We find these decisions from our sister circuits persuasive and similarly defer 

to the BIA’s interpretation regarding this issue. See Holguin-Mendoza v. 

Lynch, 835 F.3d 508, 509 (5th Cir. 2016).

Finally, although the IJ initially granted Avila-Baeza’s request for 

voluntary departure, the BIA did not reinstate the period of voluntary 

departure in his first appeal because he failed to comply with 8 C.F.R. 

§ 1240.26(c)(3)(ii) by submitting proof that he had posted the requisite bond. 

When Avila-Baeza raised his eligibility for voluntary departure before the 

BIA in his second appeal, the BIA remarked that he had neither sought nor 

established his eligibility for voluntary departure after reopening. AvilaCase: 19-60467 Document: 00515563736 Page: 3 Date Filed: 09/14/2020
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Baeza has not refuted the BIA’s determination in this regard. Accordingly, 

the petition for review is DENIED.

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