Adalberto Diaz-Olivares, a native and citizen of Mexico, sought to challenge a Board of Immigration Appeals decision that denied his applications for cancellation of removal and voluntary departure. In his cancellation of removal claim, Diaz-Olivares argued that his removal to Mexico would cause exceptional and extremely unusual hardship to his wife, who suffers from asthma. However, the immigration judge and the BIA found that the evidence did not support this claim. Additionally, Diaz-Olivares sought voluntary departure, arguing he demonstrated good moral character and that mitigating circumstances regarding his prior misconduct should have been considered. The agency denied this request as a matter of discretion. Diaz-Olivares then petitioned the Ninth Circuit for review of both decisions.
The panel addressed two distinct legal issues. First, regarding cancellation of removal, the court applied the substantial evidence standard under 8 U.S.C. § 1252(a)(2). To qualify, a petitioner must show that removal would result in 'exceptional and extremely unusual hardship' to a qualifying relative, a standard that requires hardship to 'deviate, in the extreme, from the norm.' The court noted that while Diaz-Olivares testified his wife suffers from asthma, he also testified she is in 'good health' and able to work. This contradictory testimony provided substantial evidence for the BIA's determination that the requisite hardship was not met. Second, regarding voluntary departure, the court cited 8 U.S.C. § 1252(a)(2)(B)(i), which strips jurisdiction to review discretionary denials that do not present constitutional claims or questions of law. Although Diaz-Olivares argued the agency failed to properly weigh equities, the court held that such arguments challenge the exercise of discretion, which is not reviewable. The court retained jurisdiction only for constitutional or legal questions, none of which were raised in this case.
The removal order against Diaz-Olivares remains in effect pending the issuance of the mandate. The decision reinforces the high evidentiary bar for proving 'exceptional and extremely unusual hardship' in cancellation of removal cases, particularly when the petitioner's own testimony suggests the family member is capable of functioning. It also reaffirms the Ninth Circuit's strict jurisdictional limits on reviewing discretionary immigration decisions, signaling that challenges based on the weighing of equities or moral character in voluntary departure cases will likely be dismissed.
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