Derong Wang v. U.S. Attorney Gen.

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DERONG WANG, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 21-14297

United States Court of Appeals, Eleventh Circuit

May 5, 2023

DO NOT PUBLISH

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A205-038-417 Before BRANCH, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM

Derong Wang, a native and citizen of China, seeks review of the final order of the Board of Immigration Appeals ("BIA") affirming the Immigration Judge's ("IJ") denial of his application for cancellation of removal under the Immigration and Nationality Act ("INA"). Wang argues that the IJ did not sufficiently consider the evidence he submitted to show that his children would suffer exceptional and extremely unusual hardship ("EEUH"), that the IJ erred by finding he had a possible alternative means of obtaining status in the United States, and that the BIA failed to give reasoned consideration to his claim of hardship. Because we lack jurisdiction over some of Wang's arguments and the rest lack merit, we dismiss Wang's petition for review in part and deny it in part.

I. Background

Wang entered the United States without inspection on September 15 1999. In 2012, the Department of Homeland Security ("DHS") served Wang with a notice to appear charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i), "as an alien present in the United States without being admitted or paroled." Wang conceded the charge of removability and applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1), claiming that his removal would result in EEUH to his children, who are United States citizens.

At a hearing on Wang's application for cancellation of removal, Wang testified that he moved to New York after entering the United States in 1999. He lived in New York until 2015, when he moved to Georgia for his then-girlfriend Xia You. The two had met in 2007, and Wang explained that Xia moved to New York for a brief period in 2008 but moved back to Georgia later that year. From 2008 to 2015, Wang lived in New York while Xia lived in Georgia, although they would reunite for visits. During that time, Xia worked part-time at a Chinese restaurant. Xia purchased the restaurant in 2012. After Wang moved to Georgia, he married Xia three years later. Wang testified that he has one biological daughter, who was born in May 2008, and one adopted daughter, who was born in January 2005.^[1] Both of Wang's daughters were born in New York, and they are both United States citizens.

Now, Wang and Xia operate the restaurant together and are the restaurant's only employees. Wang works as the cook and is "mainly responsible for the kitchen in the back," and Xia receives phone calls in the front and takes care of the children. Their combined monthly income is about $2,500, and their monthly household expenses are around $2,400 to $2,600. At the time of the hearing, Xia had A-5 status and was applying for permanent residence in the United States, but the application process was very slow.^[2] Xia's parents and three siblings all live in the United States, and they all have green cards except for her sister.

Wang testified that if he were forced to return to China, the restaurant would close and Xia, whose English is limited, would have to find other restaurant work. And as the children's caretaker, Xia could work only part-time, which would not be enough "to support the children and the house payment." As for Wang, he would make only $200 to $300 per month in China with his limited education and skills, which would not be enough to support the children. Wang explained that the children primarily speak English with minimal Mandarin, that China would bar the children from attending public school because they were United States citizens, and that the family could not afford private school. The family would also have to pay for private medical care for the children if they went to China with Wang. Wang testified that Xia's parents were granted political asylum in the United States, which might impact the family if they return to China.

Xia testified next and gave testimony consistent with Wang's. She added that she could not run the restaurant by herself because she helped in the front of the restaurant and was not able to run the kitchen. She could not afford to hire an employee to help. She testified that she did "not have sufficient education and skill" to find another job and explained that if she had to work full time, she would not be able to take care of their children. She did not know when she would be eligible for permanent residence, but she had to reapply for her A-5 card each year.

The IJ asked counsel when Xia's visa would be current so she could be eligible to become a permanent resident. DHS informed the IJ that Xia had filed an I-485 application for adjustment of status, which was denied in 2005, and filed another I-485 in 2007, but it was unknown whether that second application had been adjudicated.

The IJ issued an oral decision denying Wang's application for cancellation of removal. Although the IJ found that Wang and Xia were "credible witnesses" and that Wang met three of the four requirements for cancellation, the IJ ultimately found that Wang failed to meet "his burden to show [EEUH] to his two qualifying relative children for two primary reasons." First, the IJ found that neither Wang nor Xia had provided "sufficient evidence to show that [Xia] is ineligible to adjust her status, whereby [Wang] would be also eligible to adjust his status by an alternative means." The IJ explained that "the BIA has long-found that if a Respondent has an alternative means of adjusting his status in the United States, it diminishes any hardship to his qualifying relatives." Consequently, because Wang failed to provide concrete evidence that Xia "would be ineligible to adjust her status . . ., Wang ha[d] thus failed to show that the hardship to his qualifying relatives would rise to the level of exceptional and extremely unusual."

Second, the IJ found that, even if Xia were not eligible to adjust her status to become a permanent resident, Wang still failed to meet his burden of showing EEUH to his children. Specifically, the IJ found that if Wang's children remained in the United States after Wang's departure, they would "suffer the same hardship commonly seen in these types of cases," rather than EEUH. The IJ noted that Xia had owned and operated the restaurant for several years while Wang lived out of state, and despite the testimony that they could not afford to hire an employee, there was no testimony indicating that family members would not be able to help Xia run the restaurant in Wang's absence and no evidence "to verify that the restaurant [would] be inoperable" without Wang. But even if the restaurant closed, the IJ found that Xia had transferable skills, no physical or mental impediments to working full-time, and family in the United States who had helped her in the past with the restaurant and her children. Moreover, the IJ stated that the evidence showed that education and healthcare for the children would only be more expensive in China-not unavailable-and that Wang and Xia's testimony about diminished economic prospects did not rise to the level of EEUH.

Wang appealed to the BIA, challenging the determination that he failed to demonstrate EEUH and that Xia's A-5 status constituted an available alternative means of adjusting his status that diminished Wang's hardship claim. Wang argued that he demonstrated EEUH through testimony that, if he were removed and his family stayed in the United States, Xia would have to close the restaurant because she could not operate it alone; that Xia would not be able to find suitable employment to provide for two children and pay for the family's living and home expenses; and that Wang's two teenage daughters were emotionally dependent on him and would suffer emotional hardship if he left the United States. Wang also argued that, if the whole family returned to China, they would have to pay for private medical care and private school for the children, which they could not afford, and that the children were familiar only with the United States. Additionally, Wang argued that the IJ erred in finding that Xia's status constituted an available alternative means for Wang to adjust his status, which diminished his hardship claim, because even if Xia adjusted her status to become a permanent resident, it would not improve Wang's ability to obtain legal status.

The BIA affirmed the IJ's decision and dismissed Wang's appeal. The BIA acknowledged Wang's arguments that the IJ erred by finding (1) that Wang had not established the requisite EEUH based on financial difficulty (including not being able to operate their restaurant), emotional hardship, and hardship to the children if they went to China and (2) that Xia's status created an alternative means of immigration and diminished Wang's hardship claim. As to the latter argument, the BIA explained that the IJ did not find that Xia's status would directly result in immigration benefits for Wang, but instead merely "noted the possibility that" Xia could become a permanent resident and file a visa petition on Wang's behalf, which would provide Wang an "alternative means of obtaining" legal status. The BIA then noted that the IJ had alternatively found that, even if Wang could not obtain status through his wife, he had not established EEUH to his children.

The BIA concluded that, "[u]pon de novo review, [Wang did] not qualify for cancellation of removal because he did not show that his removal would result in [EEUH] to his [children]." The BIA recognized that Wang's family would experience hardship if Wang were removed but concluded that the...