PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CIRILO OLMEDO MARTINEZ, 

 Petitioner, 

v. 

MERRICK B. GARLAND, United States 

Attorney General, 

 Respondent. 

No. 23-9593 

_________________________________ 

Petition for Review of a Decision 

of the Board of Immigration Appeals 

_________________________________ 

Submitted on the briefs:*

Margaret W. Pascual, Pascual Law, PLLC, Salt Lake City, Utah, for Petitioner. 

Lindsay Dunn, Trial Attorney, and Kiley Kane, Senior Litigation Counsel, Office of 

Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., 

for Respondent. 

_________________________________ 

Before EID, KELLY, and ROSSMAN, Circuit Judges. 

_________________________________ 

KELLY, Circuit Judge. 

_________________________________ 

* 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 16, 2024

Christopher M. Wolpert 

Clerk of Court

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Petitioner Cirilo Olmedo-Martinez seeks review of the Board of Immigration 

Appeals’ (BIA) denial of his motion to reopen and remand, arguing that he is eligible 

for cancellation of removal and that the BIA applied an incorrect legal standard. We 

exercise jurisdiction under 8 U.S.C. § 1252(a)(2)(D) and deny the petition for review. 

Background 

The Department of Homeland Security charged Mr. Olmedo-Martinez, an 

alien, with removability. R. 638. Mr. Olmedo-Martinez applied for cancellation of 

removal, and on April 3, 2019, the Immigration Judge (IJ) denied relief due to Mr. 

Olmedo-Martinez’s failure to demonstrate his removal would result in exceptional 

and extremely unusual hardship to family members. Id. at 163–64, 389–401. 

Mr. Olmedo-Martinez appealed to the BIA and moved to remand the 

proceedings, arguing that the IJ did not adequately consider the evidence of hardship 

and asserting that previously unavailable evidence would likely change the result. Id. 

at 54–55, 93–102. Specifically, Mr. Olmedo-Martinez presented evidence that (1) a 

different IJ granted his brother’s withholding of removal due to ongoing familial 

violence in Mexico, and (2) his wife gave birth to a daughter. Id. at 57–59. On 

October 11, 2022, the BIA dismissed the appeal and declined to remand the case, 

concluding that Mr. Olmedo-Martinez failed to show, first, how his brother’s case 

established anything beyond what he previously presented to the IJ, and second, how 

his newborn daughter would change the outcome of the IJ’s disposition. Id. at 41–43. 

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Mr. Olmedo-Martinez then filed a motion to reopen and remand the case based 

on additional new evidence: his son’s diagnosis with a complex medical condition 

and an educational impairment. Id. at 9–10. On September 14, 2023, the BIA denied 

the motion “for failure to demonstrate prima facie eligibility for cancellation of 

removal[.]” Id. at 2. The Board held Mr. Olmedo-Martinez could not demonstrate 

that the condition was particularly serious or that his child could not continue 

treatment in his absence, and he failed to sufficiently address how his removal would 

affect his child’s educational hardship. Id. at 2–3. He seeks review of this decision. 

Discussion

 As a threshold matter, the government argues that we lack jurisdiction to 

review Mr. Olmedo-Martinez’s petition because 8 U.S.C. § 1252(a)(2)(B)(i) 

“precludes our review of an ‘exceptional and extremely unusual hardship’ 

determination under § 1229b(b)(1)(D),” which, consequently, bars our review of the 

BIA’s denial of the motion to reopen. Resp. Br. at 9–10 (quoting Alzainati v. Holder, 

568 F.3d 844, 849 (10th Cir. 2009)). While this case was pending, the Supreme 

Court clarified that “application of the exceptional and extremely unusual hardship 

standard to a given set of facts is reviewable as a question of law under 

§ 1252(a)(2)(D).” Wilkinson v. Garland, 601 U.S.__, 2024 WL 1160995, at *5 

(2024). In doing so, the Supreme Court abrogated our decision in Galeano-Romero 

v. Barr where we held that application of the exceptional and extremely unusual 

hardship standard does not raise questions of law under § 1252(a)(2)(D). 968 F.3d 

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1176, 1182–84 (10th Cir. 2020).1

 Under Wilkinson, we have jurisdiction to review 

the underlying hardship determination, and therefore we review the BIA’s denial of 

Mr. Olmedo-Martinez’s motion to reopen. See Alzainati, 568 F.3d at 848–49.2

We typically review the BIA’s denial of a motion to reopen for abuse of 

discretion. Kucana v. Holder, 558 U.S. 233, 242 (2010); Maatougui v. Holder, 738 

F.3d 1230, 1239 (10th Cir. 2013); Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th 

Cir. 2004). And under § 1252(a)(2)(D), “[w]e review any valid constitutional claims 

or questions of law de novo.” Alzainati, 568 F.3d at 851. Of course, in Wilkinson 

the Court clarified that we review the hardship determination as a question of law 

under § 1252(a)(2)(D). 2024 WL 1160995, at *5. However, the Supreme Court 

explained that “[b]ecause this mixed question is primarily factual, that review is 

deferential.” Id.; see also Yanez-Olivo v. Garland, No. 23-3653, 2024 WL 1282607, 

at *1 (6th Cir. Mar. 26, 2024) (applying Wilkinson’s deferential standard of review in 

considering IJ’s determination of eligibility for cancellation). Thus, we apply a 

deferential standard to review the BIA’s hardship determination. 

 A. Exceptional and Extremely Unusual Hardship

 The BIA denied the motion due to Mr. Olmedo-Martinez’s failure to establish 

“a reasonable likelihood . . . that the statutory requirement of exceptional and 

1

 In addition to Galeano-Romero, the Supreme Court’s decision partially 

abrogated Alzainati, 568 F.3d at 847–50, on the same ground. 

2

 We still lack jurisdiction to review agency factfinding. Wilkinson, 2024 WL 

1160995, at *9 (“The facts underlying any determination on cancellation of removal 

therefore remain unreviewable.”). For example, “the seriousness of a family 

member’s medical condition” would be unreviewable. Id. 

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extremely unusual hardship would be met in reopened proceedings.” R. 2. Under 

this standard, the applicant must establish 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.” In re Monreal-Aguinaga, 23 I. & N. Dec. 56, 

65 (B.I.A. 2001) (en banc). For example, the BIA has noted that an applicant whose 

child has “very serious health issues, or compelling special needs in school” might 

qualify. Id. at 63. But economic detriment and diminished educational opportunities 

are insufficient. In re Andazola-Rivas, 23 I. & N. Dec. 319, 323 (B.I.A. 2002). 

 Given the high standard, the BIA did not err in denying the motion to reopen. 

The Board recognized that Mr. Olmedo-Martinez’s son was diagnosed with a 

complex bowel issue, but relying upon a medical article proffered with the motion, 

found that it could be ameliorated by a variety of treatments including behavioral 

modification. R. 2–3. Similarly, though his son has been placed in an Individualized 

Education Program (IEP) at school, Mr. Olmedo-Martinez failed to show how his 

removal would cause his son’s educational impairments to rise to the level of 

extremely unusual hardship. Id. at 3. His generic statement that his son would 

require increased time, attention, and resources was insufficient. Id. at 13. 

 Finally, contrary to Mr. Olmedo-Martinez’s argument that the BIA failed to 

address the cumulative effects of all the evidence presented, Pet. Br. at 13–14, the 

Board reasoned that “the documents submitted, even when considered in the 

aggregate with other evidence of record, do not make a prima facie case for 

hardship[.]” R. 3 (emphasis added). Therefore, the BIA properly considered all Mr. 

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Olmedo-Martinez’s proffered evidence, including potential violence in Mexico and 

problems stemming from his separation from his children and financial loss. Pet. Br. 

at 13. While the hardships faced by Mr. Olmedo-Martinez and his family are 

undoubtedly difficult, they do not rise to the level of exceptional or extremely 

unusual hardship. 

B. The BIA’s Application of the Legal Standard 

 Applying de novo review, we conclude that Mr. Olmedo-Martinez’s remaining 

argument fails. He claims that the BIA’s September 2023 denial “appears” to 

substitute the “reasonable likelihood” standard for a higher standard — whether the 

new evidence “would likely” establish exceptional and extremely unusual hardship in 

a reopened proceeding. Pet. Br. at 2. This argument is inconsistent with the record; 

the BIA’s September 2023 order uses only the “reasonable likelihood” standard. See 

R. 2–3. 

 To the extent Mr. Olmedo-Martinez argues that an incorrect legal standard was 

applied in the IJ’s April 2019 decision or the BIA’s October 2022 order, he failed to 

raise such arguments in his initial appeal of the IJ’s decision, id. at 88–103, in a 

motion to reconsider, see 8 U.S.C. § 1229a(c)(6), or elsewhere. Before advancing a 

specific legal theory in court, the alien must first present that same specific legal 

theory to the BIA. Miguel-Pena v. Garland, 94 F.4th 1145, 1154 (10th. Cir. 2024). 

Accordingly, the Petition for Review is DENIED. 

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