Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Criminal Law / Jurisdictional decision deepens circuit split

Jurisdictional decision deepens circuit split

Where the Fourth Circuit joined the Fifth and Sixth Circuits in holding there was jurisdiction to review a Board of Immigration Appeals’ removal decision, in this case that removal of a Mexican citizen would not cause his children “exceptional and extremely unusual hardship,” the split among the circuits has deepened as the Third and 10th Circuits have held those decisions are not reviewable.


Servando Gonzalez Galvan, a native and citizen of Mexico, petitions for review of a final order of removal entered by the Board of Immigration Appeals, or BIA. The BIA affirmed the holding of the immigration judge, or IJ, that Gonzalez Galvan as a matter of law to prove that his removal would impose an “exceptional and extremely unusual hardship” on his United States citizen children.


The government argues that the Immigration  and Nationality Act, or INA, prohibits judicial review of an IJ’s discretionary decision denying cancellation of removal. The government maintains that because cancellation of removal is a form of discretionary relief, the considerations on which that decision is based likewise are not subject to judicial review.

Section 1229b frames the ultimate decision whether to grant cancellation of removal as a discretionary decision by the Attorney General. Here, however, the IJ based his decision on his conclusion that, as a matter of law, Gonzalez Galvan failed to prove the statutory eligibility requirement that his removal would cause his children “exceptional and extremely unusual hardship.”

The question is thus whether the IJ’s determination of that eligibility requirement in section 1229b(b)(1)(D) presents a question of law that the court may review under section 1252(a)(2)(D), or is merely a component of the final, unreviewable discretionary decision to grant or deny cancellation of removal under section 1252(a)(2)(B)(i). The answer to this question is governed by the Supreme Court’s recent decision in Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020). The Supreme Court held that the Fifth Circuit had jurisdiction to review the petitioner’s challenge because it qualified as a “question of law” under the statutory exception of section 1252(a)(2)(D). In reaching this conclusion, the court characterized the determination of “due diligence” as presenting a “mixed” question of law and fact.

Four circuits have addressed the impact of Guerrero-Lasprilla on federal appellate courts’ jurisdiction to review the BIA’s “exceptional and extremely unusual hardship” determination under section 1229b(b)(1)(D). Both the Third and the 10th Circuits have concluded that the hardship determination required under this statutory provision is discretionary in nature because the determination requires fact-finding by the adjudicator and a subjective assessment of the alleged hardship. The Fifth and Sixth Circuits, however, have concluded that hardship determinations made under 8 U.S.C. § 1229b(b)(1)(D) are “the type of mixed questions [of law and fact] that [courts] have jurisdiction to review after Guerrero-Lasprilla.”

This court agrees with the Fifth and Sixth Circuits’ approach, which is aligned more closely with the Supreme Court’s reasoning in Guerrero-Lasprilla. Like the mixed question of law and fact involving “due diligence” addressed by the Supreme Court in Guerrero-Lasprilla, the statutory term “exceptional and extremely unusual hardship” is reviewable as a “question of law” under section 1252(a)(2)(D) because it involves the application of a legal standard to settled facts.


The BIA’s precedent requires that an IJ consider the ages, health and other circumstances of the United States citizen or lawful permanent resident family members in determining whether the applicant has established “exceptional and extremely unusual hardship.” Here, the IJ explained that Gonzalez Galvan’s children would not face a level of hardship different from that any family would face upon the removal of a parent who is the family’s primary wage earner.

The IJ explained that he considered the medical records, including the children’s “feelings of anxiety,” “possible depression” and Amy’s diagnosis of ADHD before concluding that these were not physical or mental conditions that would satisfy the statutory hardship standard. The IJ also referenced the financial burdens that the family would face, the emotional impact that the father’s absence would have on the children and the children’s reduced opportunities for a college education and various activities that they will not be able to pursue. The IJ applied the correct statutory standard, considered all the evidence and adequately explained the reasons for his ruling.

Petition for review denied.

Gonzalez Galvan v. Garland, Case No. 20-1485, July 27, 2021. 4th Cir. (Keenan), from Board of Immigration Appeals. Abby Holland for Petitioner. Micah S. Engler for Respondent. VLW 021-2-263. 16 pp.

VLW 021-2-263