- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 12-26-2012
- Case #: 08-70941
- Judge(s)/Court Below: Circuit Judge Reinhardt for the Court; Circuit Judge Wardlaw; Partial Concurrence and Partial Dissent by Circuit Judge Silverman.
- Full Text Opinion
Laura Arteaga de Alvarez (Arteaga) is an undocumented Mexican national. She applied for cancellation of removal and was denied. She appealed to the BIA. The BIA affirmed the denial because Arteaga’s alternative means to immigrate, such as a spousal petition, “necessarily undercut her ability to demonstrate that her children would suffer exceptional and extremely unusual hardships if she was removed fro the United States.” Arteaga appealed. She claimed that the BIA’s decision had violated her right to due process because her husband had been previously granted a cancellation of removal under similar circumstances. Arteaga also claimed that the BIA had incorrectly determined that her ability to lawfully return to the United States “necessarily [undercut] … her claim that her children would suffer the requisite hardship if she were to be removed from the United States.” In Mendez-Castro v. Mukasey, the Ninth Circuit held that it lacked jurisdiction over “a due process claim that alleges that the BIA’s hardship determination in a cancellation of removal case is factually inconsistent with similar prior agency hardship determinations.” The Court could not distinguish Arteaga’s due process claim from Mendez-Castro’s. Thus the court held that it lacked jurisdiction to review Arteaga’s due process claim. For Arteaga’s second claim, the Court reasoned that the BIA created a categorical rule when it held that Arteaga’s ability to return legally to the United States necessarily undercuts her hardship claim for her children. This rule violates the requirement that the BIA assess each application for cancellation of removal individually and on its own facts. The Court concluded that ignoring this requirement would contradict its own precedent, previous BIA decisions and “the underlying purpose of cancellation of removal relief.” The Court held that the categorical rule is an incorrect interpretation of the statute. VACATED and REMANDED.