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Simental-Galarza v. Barr

United States Court of Appeals, Seventh Circuit

January 2, 2020

Jose Antonio Simental-Galarza, Petitioner,
William P. Barr, Atorney General of the United States, Respondent.

          Argued December 17, 2019

          Petition for Review of an Order of the Board of Immigration Appeals No. A206-274-723

          Before Ripple, Sykes, and St. Eve, Circuit Judges.

          Per Curiam.

         Jose Antonio Simental-Galarza, a 36-year-old citizen of Mexico, seeks relief from removal, contending that he is a bartered spouse and would suffer extreme hardship if removed. The Immigration Judge and the Board of Immigration Appeals ruled that Simental-Galarza did not qualify for relief because he did not establish hardship. Because the IJ and Board adequately evaluated the relevant factors and the evidence that Simental-Galarza presented, we deny the petition for review.


         Simental-Galarza unlawfully entered the United States from Durango, Mexico, in 2001. He married Jolene Avitia, a United States citizen, in 2013; they divorced three years later. Around the time of the divorce, Simental-Galarza came to the attention of immigration authorities. He was charged as removable under the Immigration and Nationality Act, 8 U.S.C. § H82(a)(6)(A)(i), for having entered and remained in the United States without lawful admission.

         Simental-Galarza conceded to the charge but sought cancellation of removal as a battered spouse under 8 U.S.C. § l229b(b)(2). Under § 1229b, the Attorney General may cancel Simental-Galarza's removal if he demonstrates that he was battered or subjected to extreme cruelty by his spouse and that his removal would result in extreme hardship. § l229b(b)(2)(A)(i)(I), (b)(2)(A)(v). (In the alternative, Simental-Galarza asked for voluntary departure.) At his immigration hearing, Simental-Galarza offered evidence of physical, verbal, and psychological abuse. During three unhappy years of marriage with Avitia, he explained, she attacked him, slapping him more than 20 times. At other times, she insulted him, yelled at him, and called him obscene names. She also often threatened to call the authorities to "come after" him. Finally, she was unfaithful and stole money from him.

         Because of the toll that this abuse took on Simental-Galarza and his long ties to the United States, he argued to the IJ that removal would cause him extreme hardship. He testified that the abuse left him depressed and unable to start another romantic relationship. His sister-in-law confirmed that since the divorce, Simental-Galarza rarely talked, never laughed, and did not trust people. A licensed clinical social worker diagnosed him with anxiety, severe depression, posttraumatic stress disorder, and dependent personality disorder. Therefore, the social worker advised, he should continue therapy in a stable, supportive environment. Simental-Galarza thought that the United States was the best environment for him: Most of his family resides here-his parents are deceased, and three brothers and two sisters live here. Also, in the 17 years that he has lived here, he has had steady work (as a landscaper, at his brother's restaurant, and removing snow in the winter). By contrast, "it's very hard" in Mexico, where wages are low, violence is high, and it is difficult to find employment without a strong family network. His sister-in-law predicted that if Simental-Galarza were removed, he would "shut down" physically and emotionally because all his close family members reside in the United States. She also speculated that Mexico did not have the mental health resources that are available here, but no witness offered evidence that Simental-Galarza could not receive mental health treatment in Mexico.

         Simental-Galarza did not receive cancellation of removal. The IJ concluded that he had failed to establish that he is a battered spouse or that his return to Mexico would cause extreme hardship, as required under 8 U.S.C. § l229b(b)(2). Although Simental-Galarza would lose family ties and employment in the United States, the IJ reasoned, that loss is a consequence of most removals, and no medical condition disabled him from finding employment in Mexico. (The IJ then granted Simental-Galarza's alternative request for voluntary departure.) The Board dismissed Simental-Galarza's appeal. It assumed that he was a battered spouse but affirmed that he had not shown hardship beyond that which is typical from removal. The Board first ruled that Simental-Galarza had not demonstrated that he could not obtain work in Mexico. And although Mexico can be violent, the Board acknowledged, Simental-Galarza had not shown that he would personally face violence. Finally, the Board supplemented the IJ's rationale by observing that Simental-Galarza had "not shown that he could not obtain treatment for his anxiety and depression in Mexico."


         When, as here, the Board dismisses an appeal from an IJ's decision and supplements that decision with its own reasoning, we review both decisions together. See Pouhova v. Holder, 726 F.3d 1007, 1011 (7th Cir. 2013). Because the Board assumed that Simental-Galarza was a battered spouse under 8 U.S.C. § l229b(b)(2), the parties dispute whether the Board wrongly decided the question of extreme hardship.

         Simental-Galarza mainly contends that the IJ and Board did not explicitly mention his post-traumatic stress disorder, dependent personality disorder, and lack of treatment options in Mexico. He argues that the agency's failure to address this material evidence constituted a legal error and that we should remand for the agency to consider his mental health evidence anew.

         Before turning to the merits, however, we must first address our ability to consider Simental-Galarza's petition. We generally do not have jurisdiction to review discretionary decisions from immigration proceedings. See 8 U.S.C. § l252(a)(2)(B)(i). But under § 1252(a)(2)(D), we retain jurisdiction to review constitutional claims and questions of law. Simental-Galarza contends that he has raised a legal question-whether, in deciding the matter of extreme hardship, the IJ and Board failed to consider his evidence about a lack of treatment options in Mexico. ...

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