On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-050-940
The opinion of the court was delivered by: Reinhardt, Circuit Judge:
Submitted August 9, 2012*fn1
Before: Stephen Reinhardt, Barry G. Silverman, and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt;
Partial Concurrence and Partial Dissent by Judge Silverman
The panel dismissed in part for lack of jurisdiction and vacated in part Laura Arteaga de Alvarez's petition for review from the Board of Immigration Appeals' decision denying her application for cancellation of removal.
The panel dismissed for lack of jurisdiction Arteaga's claim that the denial of cancellation deprived her of due process where a different Immigration Judge had four years earlier granted relief to her husband on similar facts. The panel vacated and remanded, however, on Arteaga's claim that the BIA erred in relying on a categorical rule that the availability of alternative lawful means to immigrate necessarily undercuts an alien's claim of hardship to a qualifying relative.
Judge Silverman, concurring in part and dissenting in part, would dismiss the petition in full for lack of jurisdiction. Judge Silverman agreed that this court lacks jurisdiction over Arteaga's due process claim. He disagreed, however, with the majority's conclusion that the BIA erred in finding that Arteaga had an alternative means to adjust her status, and he would find that this court lacks jurisdiction to second-guess the IJ and BIA's determination.
Petitioner Laura Arteaga de Alvarez ("Arteaga") is an undocumented Mexican national. She is married to a legal permanent resident, who obtained that status after being granted cancellation of removal in 2003, shortly before the couple married. They have three children who are all United States citizens. In 2005, after voluntarily turning herself in to immigration authorities, Arteaga applied for cancellation of removal. Her application was denied in 2007 by an immigration judge who determined that she had not demonstrated the requisite exceptional and extremely unusual hardship to a qualifying relative. The BIA affirmed, and included in its reasoning a statement that the fact that Arteaga had alternative means to immigrate, i.e. a spousal petition filed by her husband, necessarily undercut her ability to demonstrate that her children would suffer exceptional and extremely unusual hardship if she were to be removed from the United States. We hold that we do not have jurisdiction over Arteaga's claim that her due process rights were violated by the fact that her husband was granted cancellation of removal four years earlier based on similar facts. We vacate and remand, however, on Arteaga's second claim that the BIA erred as a matter of law when it held that an applicant for cancellation of removal's ability to demonstrate hardship to his qualifying relatives is necessarily undercut by the possibility that the applicant may have alternative means to immigrate at some undefined point in the future.
Arteaga is a native and citizen of Mexico who arrived in the United States almost twenty years ago, on March 22, 1993, without being admitted or paroled. She does not contest that she entered the country illegally. Arteaga lived in Salinas, California when she first came to the United States and after ten years she moved to Yuma, Arizona, where she currently resides. Her mother and ten of her siblings live in Mexico, and two of her sisters live in California.
On December 6, 2003, Arteaga married Jesus Alvarez ("Alvarez"). He is a lawful permanent resident, having been granted cancellation of removal on April 23, 2003, by an Immigration Judge ("IJ") in San Francisco. On October 28, 2005, Alvarez filed a petition to immigrate Arteaga on the basis of their marriage.
Arteaga and Alvarez have three children together, ages 18, 15 and 10, all born prior to their marriage. All three children were born in the United States and are American citizens. When asked what language the children speak, Arteaga answered, "English and little Spanish, but the, my daughter, the, English." The middle child, Natalie, who was 9 years old at the time of Arteaga's hearing, was receiving speech therapy. Natalie was unable to speak until age 4, and Arteaga testified that Natalie had seen doctors in the past but that she did not "have to as much anymore because the school is helping her now." Natalie receives speech therapy once a week in a special class in the same school where she receives regular instruction, and the speech language pathologist at the school recommended that "direct therapy continue for the next school year." An Individualized Education Plan was submitted in evidence, which states that Natalie is "still delayed in her verbal communication." A teacher "reports that Natalie is very difficult to understand in the classroom." Arteaga also reports that Natalie has difficulty pronouncing Spanish words. None of Arteaga's other children has any medical problems.
Arteaga testified that she would take her children with her if she were deported to Mexico. However, on her original application for cancellation of removal, Arteaga indicated that her children would remain in the United States with her husband. When asked how deportation would affect ...