UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

GERSON REYNOSO HERRERA, 

 Petitioner, 

v. 

MERRICK B. GARLAND, 

United States Attorney General, 

 Respondent. 

No. 21-9596 

(Petition for Review) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, BALDOCK, and CARSON, Circuit Judges. 

_________________________________ 

The Board of Immigration Appeals (Board or BIA) adopted and affirmed an 

Immigration Judge’s (IJ) order denying Gerson Reynoso Herrera’s application for 

cancellation of removal. Mr. Herrera has filed a petition for review. We dismiss the 

petition in part for lack of jurisdiction and, to the extent we have jurisdiction under 

8 U.S.C. § 1252(a), deny the remainder of the petition. 

* 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 

November 2, 2022

Christopher M. Wolpert 

Clerk of Court

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I. Background

 Mr. Herrera is a native and citizen of Mexico who entered the United States 

without admission or inspection in 1998 or 2000. In 2008, the Department of 

Homeland Security served him a Notice to Appear charging him as removable under 

8 U.S.C. § 1182(a)(6)(A)(i) as a noncitizen present in the United States without being 

admitted or paroled. Mr. Herrera conceded removability as charged and initially 

applied for an adjustment of status based on his marriage to a U.S. citizen. He later 

abandoned that application after learning there was a bar to adjustment—Mr. Herrera 

had reentered the United States in late 2004 or early 2005 falsely claiming to be a 

U.S. citizen by presenting a United States birth certificate belonging to someone else. 

Mr. Herrera instead applied for cancellation of removal. After a hearing, the IJ 

denied cancellation, finding Mr. Herrera failed to demonstrate his removal would 

cause exceptional and extremely unusual hardship to his U.S.-citizen wife, see

8 U.S.C. § 1229b(b)(1)(D) (requiring a cancellation applicant to establish, among 

other things, “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”). 

 Mr. Herrera appealed that decision to the Board, arguing the IJ failed to 

consider the effect his wife’s age and her long residency in the United States had on 

her chances for employment in Mexico and the risk of returning to her hometown 

there. He also argued the IJ failed to aggregate the factors relevant to the hardship 

determination and failed to properly acknowledge which factors the IJ considered 

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other than an economic analysis. The Board adopted and affirmed the IJ’s decision. 

Mr. Herrera now seeks review in this court. 

II. Discussion

A. The BIA did not apply the wrong standard of review 

 Mr. Herrera first argues the Board applied the wrong standard of review when 

it determined his “disagreement with the ultimate manner in which the [IJ] weighed 

those claims and evidence [of age discrimination, crime, and financial hardship] is 

not sufficient to establish error in the [IJ’s] decision,” R., Vol. 1 at 3. Mr. Herrera 

asserts the reference to “error” indicates the Board reviewed the IJ’s decision only for 

clear error, a standard that applies to factual determinations. He claims that because 

the underlying facts were not in dispute, a de novo standard of review applied to the 

issue on appeal—whether the IJ erred in weighing the facts relevant to the hardship 

determination. See 8 C.F.R. § 1003.1(d)(3)(i)-(ii) (Board reviews an IJ’s factual 

findings for clear error and “questions of law, discretion, and judgment and all other 

issues . . . de novo”); In re Gamero Perez, 25 I. & N. Dec. 164, 165 (B.I.A. 2010) 

(applying de novo review to determination of hardship for cancellation purposes). 

 Cancellation is a form of relief from removal under 8 U.S.C. § 1229b. By 

statute, “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), except for 

“constitutional claims” and “questions of law,” § 1252(a)(2)(D). Whether the Board 

applied an incorrect standard of review to the denial of cancellation is a question of 

law over which we have jurisdiction. See Galeano-Romero v. Barr, 968 F.3d 1176, 

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1184 (10th Cir. 2020) (“[W]e have jurisdiction over a claim that the Board applied 

the incorrect standard of review to an IJ’s factual determinations” concerning 

cancellation.). 

We review questions of law de novo. Martinez-Perez v. Barr, 947 F.3d 1273, 

1277 (10th Cir. 2020). So doing, we disagree with Mr. Herrera’s reading of the 

Board’s decision. The Board adopted and affirmed the IJ’s decision pursuant to 

In re Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994). In re Burbano provides that even 

though the Board must review an IJ’s discretionary determination using its “own 

independent judgment,” id. at 873, that “independent review authority does not 

preclude the Board from adopting or affirming a decision of the immigration judge, 

in whole or in part, when [the Board is] in agreement with the reasoning and result of 

that decision,” id. at 874. In that circumstance, “the Board’s final decision may be 

rendered in a summary fashion.” Id. That “does not mean,” however, the Board has 

“conducted an abbreviated review of the record” or “failed to exercise [its] own 

discretion.” Id. “Rather, it is simply a statement that the Board’s conclusions upon 

review of the record coincide with those which the immigration judge articulated in 

his or her decision.” Id.

Viewed through the lens of In re Burbano, and in light of the Board’s 

acknowledgment of the different standards of review set out in 8 C.F.R. 

§ 1003.1(d)(3)(i) and (ii), see R., Vol. I at 3, we decline to read the Board’s 

summarization of its agreement with the IJ’s decision and its statement that 

Mr. Herrera’s arguments were insufficient “to establish error in the [IJ’s] decision,” 

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id., as a failure to fulfill its obligation to review the hardship determination de novo. 

See Batalova v. Ashcroft, 355 F.3d 1246, 1252 (10th Cir. 2004) (“Absent any 

indication to the contrary, we presume BIA members do their job thoroughly.”). We 

therefore reject Mr. Herrera’s argument. 

B. Mr. Herrera failed to exhaust his In re Gonzalez Recinas argument 

Mr. Herrera next contends the IJ and the Board departed from the agency’s 

hardship standard by not considering that his false claim to U.S. citizenship 

permanently bars him from getting an immigrant visa to return to the United States 

after removal.1

 He bases this argument on In re Gonzalez Recinas, 23 I. & N. Dec. 

467 (B.I.A. 2002). In that case, the Board emphasized the importance of considering 

how long a noncitizen would be prevented from returning to the United States when 

evaluating the hardship to a qualifying relative. See id. at 472. 

“[W]e have jurisdiction to review a claim that the Board departed from its own 

adopted hardship standard, by ignoring it or favoring some other inapplicable 

standard.” Galeano-Romero, 968 F.3d at 1184. However, Mr. Herrera never 

advanced his In re Gonzalez Recinas argument before either the IJ or the BIA. And 

although the IJ cited In re Gonzalez Recinas, she did so only for a reason related to 

those arguments Mr. Herrera did advance—that “hardship is ‘significant,’ where a 

parent is solely responsible for his children’s care and his removal would result in a 

1

 The relevant statutory provision states: “Any alien who falsely represents, or 

has falsely represented, himself or herself to be a citizen of the United States for any 

purpose or benefit under this chapter . . . or any other Federal or State law is 

inadmissible.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). 

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serious financial detriment to his children,” R., Vol. 1 at 43. Mr. Herrera claims this 

general reliance on In re Gonzalez Recinas means the IJ and BIA should have 

addressed sua sponte the temporal element he now presses. But he cites no authority 

for this proposition, and we disagree with it. We instead adhere to our general 

exhaustion jurisprudence and conclude that because Mr. Herrera failed to exhaust this 

argument, we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1) (“A court 

may review a final order of removal only if . . . the alien has exhausted all 

administrative remedies available to the alien as of right[.]”); Garcia-Carbajal v. 

Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (“To satisfy § 1252(d)(1), an alien 

must present the same specific legal theory to the BIA before he or she may advance 

it in court.”). 

C. We lack jurisdiction to review the hardship determination 

Finally, Mr. Herrera asks us to undertake de novo review of whether he 

established that his removal to Mexico would result in exceptional and extremely 

unusual hardship to his wife, giving particular consideration to the temporal element 

under In re Gonzalez Recinas. However, this court construes § 1252(a)(2)(B)(i)’s 

limitation on judicial review “as denying jurisdiction to review the discretionary 

aspects of a decision concerning cancellation of removal under § 1229b(b)(1).” 

Galeano-Romero, 968 F.3d at 1181 (internal quotation marks omitted). And “[s]uch 

discretionary aspects include . . . the determination of whether the petitioner’s 

removal from the United States would result in exceptional and extremely unusual 

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hardship to a qualifying relative under . . . § 1229b(b)(1)(D).” Id. (internal quotation 

marks omitted). 

Mr. Herrera concedes that Galeano-Romano precludes success on his request 

for de novo review of the hardship determination. But he nevertheless asks us to 

consider overruling Galeano-Romero in light of several other circuit decisions2

 that 

have since viewed the hardship determination as a mixed question of fact and law 

reviewable under § 1252(a)(2)(D)’s “questions of law” exception to 

§ 1252(a)(2)(B)’s jurisdictional bar.3

 Those circuit courts reach that conclusion 

based on the holding of Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1067 (2020), 

that “the phrase ‘questions of law’ in [§ 1252(a)(2)(D)] includes the application of a 

legal standard to undisputed or established facts.” 

However, in Galeano-Romano, we considered the effect of Guerrero-Lasprilla

on our prior case law and reaffirmed our precedent that “the determination of whether 

the requisite hardship exists is discretionary because ‘there is no algorithm for 

determining when a hardship is “exceptional and extremely unusual.”’” 968 F.3d 

at 1183 (brackets omitted) (quoting Morales Ventura v. Ashcroft, 348 F.3d 1259, 

2

 The other circuit decisions Mr. Herrera relies on are Gonzalez Galvan v. 

Garland, 6 F.4th 552, 560 (4th Cir. 2021); Trejo v. Garland, 3 F.4th 760, 773 

(5th Cir. 2021), abrogated on other grounds by Patel v. Garland, 142 S. Ct. 1614, 

1622 (2022), as stated in Ruiz-Perez v. Garland, 49 F.4th 972, at 977 (5th Cir. 2022); 

and Singh v. Rosen, 984 F.3d 1142, 1150 (6th Cir. 2021). The Third Circuit agrees 

with Galeano-Romano. See Hernandez-Morales v. Att’y Gen., 977 F.3d 247, 249 

(3d Cir. 2020). 

3

 We note Mr. Herrera’s statement that he raises this issue to preserve it for a 

possible petition for rehearing en banc. 

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1262 (10th Cir. 2003)). We concluded that “the Board’s discretionary determinations 

[regarding whether the requisite hardship exists] . . . do not raise ‘questions of law’ 

for purposes of § 1252(a)(2)(D), even if framed as a challenge to the application of a 

legal standard to established facts under Guerrero-Lasprilla.” Id. at 1184. And we 

held that “[w]e lack jurisdiction to review the Board’s discretionary decision, based 

on the facts of the case, whether an alien’s spouse will suffer an exceptional and 

extremely unusual hardship.” Id. at 1182–83. 

“[I]t is well established that one panel cannot overrule the judgment of another 

panel of this court absent en banc reconsideration or a superseding contrary decision 

by the Supreme Court.” Barber v. T.D. Williamson, Inc., 254 F.3d 1223, 1229 

(10th Cir. 2001) (ellipsis and internal quotation marks omitted). Neither of these 

conditions is present. We therefore cannot overrule Galeano-Romero and review the 

hardship determination. 

III. Conclusion

 The petition for review is dismissed in part for lack of jurisdiction and 

otherwise denied. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge 

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