United States Court of Appeals For the Eighth Circuit ___________________________ No. 20-3446 ___________________________ Homero Garcia-Ortiz Petitioner v. Merrick B. Garland, Attorney General of the United States Respondent ____________ Petition for Review of an Order of the Board of Immigration Appeals ____________ Submitted: September 24, 2021 Filed: December 17, 2021 ____________ Before LOKEN, COLLOTON, and BENTON, Circuit Judges. ____________ BENTON, Circuit Judge. Homero Garcia-Ortiz petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his application for cancellation of removal. Having jurisdiction under 8 U.S.C. § 1252(a)(5), this court denies the petition. Aliens facing removal may request cancellation, a discretionary form of relief. Ali v. Barr, 924 F.3d 983, 985 (8th Cir. 2019), citing Pereira v. Sessions, 138 S. Ct. 2105, 2109 (2018). To qualify, the alien must show: (1) continuous physical presence in the United States for at least ten years; (2) good moral character; (3) no convictions of certain crimes; and (4) that removal would result in “exceptional and extremely unusual hardship” to a qualifying relative. Apolinar v. Barr, 945 F.3d 1072, 1074 (8th Cir. 2019), citing 8 U.S.C. § 1229b(b)(1). At issue is the BIA’s determination that Garcia-Ortiz’s removal would not result in exceptional and extremely unusual hardship to his daughter Rosa. Garcia-Ortiz, a native of Mexico, illegally entered the United States. The Department of Homeland Security commenced removal proceedings in 2015. He applied for cancellation of removal. In April 2018, his teenage daughter, Rosa, attempted suicide by ingesting ten 500 mg tablets of naproxen and was diagnosed with major depressive disorder. The next month, at a merits hearing on cancellation, Garcia-Ortiz testified about the suicide attempt, citing it as evidence that his removal would result in exceptional and extremely unusual hardship to Rosa.1 The Immigration Judge (IJ) disagreed, finding that Rosa never lost consciousness during the suicide attempt, made no further attempts to harm herself, indicated that therapy helped, had not scheduled any follow-up therapy, and appeared to be doing well. The IJ determined that the record did not support a correlation between Rosa’s suicide attempt and the removal proceedings. Also, according to the IJ, there was “a distinct possibility” that Garcia-Ortiz would be able to reenter the United States after a “limited” period of separation. Garcia-Ortiz appealed to the BIA. The BIA, denying cancellation, agreed that Garcia-Ortiz failed to prove Rosa would suffer exceptional and extremely unusual hardship. Garcia- Ortiz argues the BIA erred by (1) focusing on Rosa’s “current conditions” rather than “the potential for future psychological harm,” (2) doubting whether the removal 1 The application also claimed that removal would result in exceptional and extremely unusual hardship to Garcia-Ortiz’s son, Juan, who lost sight in one eye due to a paintball injury. Garcia-Ortiz does not challenge the BIA’s determination that removal would not result in exceptional and extremely unusual hardship to Juan. -2- proceedings caused Rosa’s declining mental health, and (3) failing to consider the IJ’s misstatement about Garcia-Ortiz’s eligibility for reentry. “We generally lack jurisdiction to consider the agency’s …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals