Case: 21-60288 Document: 00516465966 Page: 1 Date Filed: 09/09/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 9, 2022 No. 21-60288 Lyle W. Cayce Clerk Basilio Agustin-Matias, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A205-568-118 Before Jones, Ho, and Wilson, Circuit Judges. Cory T. Wilson, Circuit Judge: Basilio Agustin-Matias, a native and citizen of Guatemala, petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal of an immigration judge’s (IJ) denial of his application for cancellation of removal. Agustin-Matias contends that the BIA erred in concluding that he failed to demonstrate that his stepchildren are United States citizens, and thus “qualifying relatives” for purposes of his application, and by improperly reviewing the IJ’s findings of fact de novo. He also asserts that the BIA’s interpretation of 8 U.S.C. § 1229b(b)(1)(D) Case: 21-60288 Document: 00516465966 Page: 2 Date Filed: 09/09/2022 No. 21-60288 violates the Fifth Amendment as it has been construed to guarantee equal protection.1 We review the BIA’s decision and consider the IJ’s decision only to the extent it influenced the BIA. Singh v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018). We review factual findings for substantial evidence and legal determinations de novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001); Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). To overturn a factual finding under the substantial evidence standard, “[t]he alien must show that the evidence was so compelling that no reasonable factfinder could conclude against it.” Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009). 8 U.S.C. § 1229b(b)(1)(D) allows for the cancellation of removal if, inter alia, “removal would result in exceptional and extremely unusual hardship to [a qualifying relative, i.e.,] the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence.” See also § 1101(b)(1)(B) (describing when a stepchild can be a qualifying relative under § 1229b(b)(1)(D)); Diarra v. Gonzales, 137 F. App’x 627, 632 (5th Cir. 2005). Agustin-Matias contends that the BIA erred in determining that he failed to offer sufficient evidence that his stepchildren were “qualifying relatives” under § 1229b(b)(1)(D). Agustin-Matias did not assert before the IJ that his stepchildren were qualifying relatives under § 1229b(b)(1)(D), but the IJ noted in passing that Agustin-Matias “neither provided evidence regarding the hardship to his step-children nor any evidence establishing that his step-children are either: (1) children of [Agustin-Matias’s wife]; or (2) United States citizens or 1 Because Agustin-Matias does not challenge the BIA’s determination that he failed to demonstrate an extremely unusual hardship to his wife and daughter, he has abandoned any challenge to that determination on appeal. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003). 2 Case: 21-60288 Document: 00516465966 Page: 3 Date Filed: 09/09/2022 No. 21-60288 lawful permanent residents.” Agustin-Matias challenged that conclusion before …
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