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, PL LC, Salt Lake City, Utah, for Petitioner. Lindsay Dunn, Trial Attorney, and Kiley Ka ne, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justi ce, Washington, D.C., for Respondent.

________________ _________________ Before EID , KELLY , and ROSSMAN , Circuit Judges.

________________ _________________ KELLY , Circuit Judge.

________________ _________________

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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 Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 12 Petitioner Cirilo Olmedo-Martinez seeks re view of the Board of Immigration Appeals’ (BIA) denial of his motion to reope n and remand, arguing th at he is eligible for cancellation of removal a nd that the BIA applied an in correct 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 Immigra tion 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 ade quately consider the evidence of hardship and asserting that previously unavailable evidence would lik ely change the result. Id. at 54–55, 93–102. Specifica lly, Mr. Olmedo-Martinez pres ented evidence that (1) a different IJ granted his brother’s withhol ding 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 a ppeal and declined to remand the case, concluding that Mr. Olmedo-Martinez failed to show, first, how his brother’s case established anything be yond what he previously presen ted to the IJ, and second, how his newborn daughter would change the outcome of the IJ’s disposition. Id. at 41–43. Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 23 Mr. Olmedo-Martinez then filed a moti on to reopen and remand the case based on additional new evidence: his son’s diag nosis with a comple x medical condition and an educational impairment . Id. at 9–10. On Septembe r 14, 2023, the BIA denied the motion “for failure to demonstrate prima facie eligibility for cancellation of removal[.]” Id. at 2. Th e Board held Mr. Olmedo-Mar tinez could not demonstrate that the condition was particularly serious or that his child could not continue treatment in his absence, a nd he failed to sufficiently address how his removal would affect his child’s educational hardship. Id. at 2–3. He s eeks 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 ‘excep tional 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. Re sp. 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 ex ceptional 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. Garla nd, 601 U.S.__, 2024 WL 1160995, at *5 (2024). In doing so, the Supreme Court ab rogated our decision in Galeano-Romero v. Barr where we held that applicati on of the exceptional and extremely unusual hardship standard does not raise questions of law under § 1252(a)(2)(D). 968 F.3d Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 34 1176, 1182–84 ( 10th Cir. 2020). 1 Under Wilkinson, we ha ve jurisdiction to review the underlying hardship determination, and th erefore we review th e 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 ha rdship determination as a question of law under § 1252(a)(2)(D). 2024 WL 1160995, at *5. However, the Supreme Court explained that “[b]ecause th is mixed question is primarily factual, that review is deferential.” Id.; see al so Yanez-Olivo v. Garland, No. 23-3653, 2024 WL 1282607, at *1 (6th Cir. Mar. 26, 2024) (applying Wilk inson’s deferential standard of review in considering IJ’s determination of eligib ility for cancellation). Thus, we apply a deferential standard to review th e 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 requi rement of exceptional and

1 In addition to Galeano-Romero, th e Supreme Court’s decision partially abrogated Alzainati, 568 F.3d at 847–50, on the same ground. 2 We still lack jurisdicti on to review agency factfi nding. Wilkinson, 2024 WL 1160995, at *9 (“The facts underlying any determination on cancellation of removal therefore remain unreviewable.”). For ex ample, “the serious ness of a family member’s medical condition” w ould be unreviewable. Id. Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 45 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 detrimen t and diminished edu cational 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 me dical article proffere d with the motion, found that it could be ame liorated by a variety of treat ments including behavioral modification. R. 2–3. Simi larly, though his son has been placed in an Individualized Education Program (IEP) at school, Mr. Ol medo-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 re sources was insufficient. Id. at 13. Finally, contrary to Mr. Olmedo-Martin ez’s argument that the BIA failed to address the cumulative effects of all the evidence presente d, 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). Ther efore, the BIA properl y considered all Mr. Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 56 Olmedo-Martinez’s proffered evidence, in cluding 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 BI A’s September 2023 de nial “appears” to substitute the “reasonable likelihood” sta ndard for a higher standard — whether the new evidence “would likely” establish excep tional and extremely unusual hardship in a reopened proceeding. Pet. Br. at 2. This argument is inconsiste nt with the record; the BIA’s September 2023 orde r 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 th e BIA’s October 2022 or der, 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 cour t, the alien must first pres ent that same specific legal theory to the BIA. Miguel-Pena v. Garl and, 94 F.4th 1145, 11 54 (10th. Cir. 2024). Accordingly, the Petition for Review is DENIED. Appellate Case: 23-9593 Document: 010111032723 Date Filed: 04/16/2024 Page: 6