NOT RECOMMENDED FOR PUBLICATION File Name: 21a0464n.06 Case No. 20-4021 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 13, 2021 DEBORAH S. HUNT, Clerk ) JAVIER TOLENTINO-HERNANDEZ, ) ) ON PETITION FOR REVIEW OF Petitioner, ) A FINAL ORDER FROM THE ) BOARD OF IMMIGRATION v. ) APPEALS ) MERRICK B. GARLAND, Attorney General, ) OPINION ) Respondent. ) Before: GILMAN, THAPAR, and NALBANDIAN, Circuit Judges. RONALD LEE GILMAN, Circuit Judge. An immigration judge (IJ) denied Javier Tolentino-Hernandez’s (Tolentino’s) application for cancellation of removal on the basis that Tolentino failed to meet the statutory standard of “exceptional and extremely unusual hardship” to his United States children, a showing necessary to warrant cancellation of removal under 8 U.S.C. § 1229b(b)(1)(D). Tolentino appealed the IJ’s decision to the Board of Immigration Appeals (BIA), which affirmed the decision and dismissed Tolentino’s appeal. For the reasons set forth below, we conclude that the IJ and the BIA committed no error. We therefore DENY the petition for review. I. BACKGROUND Tolentino is a Mexican citizen who unlawfully entered the United States in 2006. He is married to Olga Karina Mendoza, who is also a Mexican citizen unlawfully present in the United States. Tolentino and his wife have three children, each of whom is a United States citizen. At the time of Tolentino’s hearing, which was held in October 2017, his children were six years old, five years old, No. 20-4021, Tolentino-Hernandez v. Garland and six months old. Both Tolentino’s wife and children intend to relocate to Mexico if Tolentino is removed. During his hearing, Tolentino presented documentary and testimonial evidence in support of his contention that his children will suffer exceptional and extremely unusual hardship in the form of financial, educational, emotional, acculturational, and medical hardship if Tolentino is removed. Although acknowledging that Tolentino’s children will face indisputable challenges, the IJ ultimately found that the hardships asserted did not rise to the level of being exceptional and extremely unusual. Tolentino timely appealed the IJ’s decision to the BIA, which agreed that Tolentino had failed to meet the hardship standard. This timely petition for review followed. II. ANALYSIS A. Jurisdiction The Immigration and Nationality Act (INA) allows us to review “constitutional claims or questions of law raised upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). We do not have jurisdiction to review “discretionary or factual issues,” Singh v. Rosen, 984 F.3d 1142, 1149 (6th Cir. 2021), but the Supreme Court has interpreted the phrase “questions of law” in § 1252(a)(2)(D) as extending to mixed questions of fact and law. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068–69 (2020). Because the BIA’s exceptional-and-extremely-unusual- hardship determination is a mixed question of fact and law, we have jurisdiction to assess the merits of Tolentino’s claims. See Singh, 984 F.3d at 1154 (holding that the BIA’s hardship determination is a mixed question). -2- No. 20-4021, Tolentino-Hernandez v. Garland B. Standard of review When the BIA affirms an IJ’s decision but adds its own comments, “we review …
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