Case: 20-61185 Document: 00516048836 Page: 1 Date Filed: 10/08/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 8, 2021 No. 20-61185 Lyle W. Cayce Summary Calendar Clerk Sergio Ivan Gutierrez, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A205 684 272 Before Dennis, Higginson, and Costa, Circuit Judges. Per Curiam:* Sergio Ivan Gutierrez, a native and citizen of Mexico, petitions this court for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal of the Immigration Judge’s (IJ) order denying his application for cancellation of removal. Gutierrez argues that the BIA erred by failing to * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-61185 Document: 00516048836 Page: 2 Date Filed: 10/08/2021 No. 20-61185 recognize that he made a showing of “exceptional and extremely unusual hardship” to his qualifying relatives. See 8 U.S.C. § 1229b(b)(1)(D). Originally, the Government argued that this court lacks jurisdiction to review the determination that petitioner did not demonstrate the requisite exceptional hardship for cancellation of removal. However, in light of a recent case decided by this court, Trejo v. Garland, 3 F.4th 760 (5th Cir. 2021), the Government now acknowledges that the court does have jurisdiction to review whether the events that would befall qualifying relatives upon removal would amount to “exceptional and extremely unusual hardship” as Congress intended. Id. at 764 (“Although 8 U.S.C. § 1252(a)(2)(B) deprives us of jurisdiction to review the discretionary decision of whether to actually grant cancellation of removal, recent Supreme Court precedent makes clear that applying a legal standard to established facts in order to determine whether an alien is eligible for discretionary relief is a question of law, not a discretionary decision.”). Here, as in Trejo, Gutierrez “does not challenge the IJ or BIA’s decision not to grant him cancellation of removal, but rather their determination that he did not legally qualify to be considered for cancellation of removal.” Id. at 773. We have jurisdiction to review this determination. “This court reviews only the decision of the BIA and not that of the IJ, except to the extent that the IJ’s decision influenced the BIA’s decision.” Gonzalez-Maldonado v. Gonzales, 487 F.3d 975, 976 (5th Cir. 2007). Here, the BIA expressly adopted and affirmed the decision of the IJ. Accordingly, we may review the decision of the IJ. Factual findings of the BIA and IJ are reviewed for substantial evidence and questions of law are reviewed de novo, “giving ‘considerable deference to the BIA’s interpretation of the legislative scheme it is entrusted to administer.’” Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007) (quoting Fonseca-Leite v. INS, 961 F.2d 60, 62 (5th Cir. 1992)). 2 Case: 20-61185 Document: 00516048836 Page: 3 Date Filed: 10/08/2021 No. 20-61185 …
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