Laura Arteaga-De Alvarez v. Eric H. Holder Jr. , 704 F.3d 730 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURA SONIA ARTEAGA -DE No. 08-70941
ALVAREZ,
Petitioner, Agency No.
A200-050-940
v.
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 9, 2012*
Pasadena, California
Filed December 26, 2012
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 unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 ARTEAGA -DE ALVAREZ V . HOLDER
SUMMARY**
Immigration
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARTEAGA -DE ALVAREZ V . HOLDER 3
COUNSEL
Joseph Mbacho, El Centro, California, for Petitioner.
Tony West, Assistant Attorney General, Civil Division;
David M. McConnell, Deputy Director; Stacy S. Paddack,
Senior Litigation Counsel; and Elizabeth A. McAdams, Law
Clerk, Office of Immigration Litigation, Civil Division,
Department of Justice; Washington, D.C., for Respondent.
OPINION
REINHARDT, Circuit Judge:
I.
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
4 ARTEAGA -DE ALVAREZ V . HOLDER
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.
II. FACTS
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
ARTEAGA -DE ALVAREZ V . HOLDER 5
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 her
children, she answered that “they have their lives made here
already.”
III. PROCEEDINGS BELOW
Fearing that she would be apprehended on the street,
Arteaga self-surrendered at a border patrol station on
November 2, 2005. She was served with a Notice to Appear
the same day. Arteaga was charged with being removable
under § 212(a)(6)(A)(i) of the Immigration and Nationality
Act because she is an alien present in the United States
without being admitted or paroled. On December 19, 2005,
Arteaga filed an application for cancellation of removal.
6 ARTEAGA -DE ALVAREZ V . HOLDER
Arteaga appeared with counsel before an IJ on January
13, 2006. She conceded removability but continued to pursue
her application for cancellation of removal and, in the
alternative, for voluntary departure. The hearing was
continued to September 18, 2006, at which time Arteaga
offered testimony in support of her application. At the
conclusion of her testimony, the IJ asked a clerk to do a
records check on the 2003 grant of permanent residency to
Alvarez. After a break in the proceedings, the IJ stated:
[W]e discovered that he was granted
cancellation of removal by another
Immigration Court on the day set forth on his
lawful permanent residency card, April 23,
2003. So, I wanted both counsel to be aware
of that. It seemed to me that that’s an
important factor for me to take into
consideration in the case, and for both of them
to be aware of. I have discussed that fact with
both counsel, and to summarize, in this case
this evidence simply does not rise to the level
of exceptional and extremely unusual
hardship. Court’s unaware [sic] of what
factors the husband’s cancellation was granted
on, but if it was similar to the evidence
presented in this case, we are a little
concerned about the consistency between the
decisions.
The IJ then granted a continuance, with consent from the
government, to allow Arteaga to file a request for
prosecutorial discretion. On October 6, 2006, the case was
administratively closed while the Department of Homeland
ARTEAGA -DE ALVAREZ V . HOLDER 7
Security adjudicated the application for prosecutorial
discretion.
On April 6, 2007, the IJ announced that the application
for prosecutorial discretion had been denied, and he received
a motion from the government to recalender the case. Arteaga
indicated that she would like to continue to pursue relief
rather than accept voluntary departure at an early stage, if
offered by the government.
On April 9, 2007, the IJ rendered his oral decision based
on the testimony presented during the September 2006
hearing. He determined that Arteaga had testified credibly,
and that she met the first three prongs needed to establish
eligibility for cancellation of removal: physical presence,
good moral character, and lack of criminal convictions.
However, the IJ determined that Arteaga did not meet the
fourth prong: exceptional and extremely unusual hardship to
a qualifying relative. The IJ held that her U.S. citizen children
and permanent resident husband, the qualifying relatives in
this case, were “all in good health.” He noted that one child
“was identified as having a problem speaking,” but that the
issue “has been dealt with through special classes and
therapy.” The IJ further explained that Alvarez had “filed an
application to immigrate” Arteaga, which was pending, and
that “it will be some period of time before a visa becomes
available.”1 He concluded that although Arteaga’s being
deported would cause a hardship to her children, it did not
1
Contrary to the dissent’s suggestion, however, the IJ did not make a
finding regarding the viability of Arteaga’s alternative means to
immigrate. Specifically, he did not find that her visa petition was likely
to be granted or that action would be taken within a reasonable period of
time, or within any particular period of time whatsoever.
8 ARTEAGA -DE ALVAREZ V . HOLDER
“rise[] to the level of exceptional and extremely unusual
hardship.” Accordingly, he granted voluntary departure
instead.
Arteaga filed a timely appeal with the BIA. She stated
that the IJ had failed to give weight to her daughter’s medical
condition, and that the denial of relief was “inconsistent with
a decision to grant issued by an Immigration Judge in San
Francisco for [her] husband for the same evidence and
application.” The BIA dismissed the appeal. In a per curiam
decision, it affirmed that “[f]or the reasons identified by the
[IJ] . . . the level of hardship in this case falls short of the
exceptional and extremely unusual standard.” The BIA noted
that Arteaga had not demonstrated that speech therapy would
be unavailable in Mexico. Furthermore, it explained that the
IJ “was not bound by the decision of a different IJ in a
separate matter,” and thus Arteaga’s husband’s successful
application for cancellation of removal was not grounds for
reversal. Finally, the BIA stated: “Moreover, the respondent’s
husband is now a lawful permanent resident who has filed a
visa petition on her behalf. We have long held that the
availability of an alternative means of lawfully immigrating
to the United States undercuts a claim of exceptional and
extremely unusual hardship stemming from an alien’s
removal.”
IV. JURISDICTION AND STANDARD OF REVIEW
In cancellation of removal cases we lack jurisdiction to
“review[] the merits of a hardship determination.” Mendez-
Castro v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009).
However, we have jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D) to review constitutional claims and questions
of law raised upon a petition for review. Cabrera-Alvarez v.
ARTEAGA -DE ALVAREZ V . HOLDER 9
Gonzalez, 423 F.3d 1006, 1009 (9th Cir. 2005). This includes
any alleged “colorable constitutional violation,”
Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.
2005), as well as questions of statutory interpretation, which
are reviewed de novo, giving appropriate deference to the
agency if warranted. Cabrera-Alvarez, 423 F.3d at 1009; see
also Uppal v. Holder, 605 F.3d 712, 714 (9th Cir. 2010).
Where, as here, the BIA adopts the opinion of the IJ while
adding its own reasoning, we review both decisions, treating
any additional findings by the BIA as part of the final agency
action. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.
2005).
V. ANALYSIS
The requirements for cancellation of removal and
adjustment of status for certain nonpermanent residents are
set forth in 8 U.S.C. § 1229b(b)(1). The only requirement at
issue here is whether the BIA erred in holding that Arteaga
did not establish that her removal would result in exceptional
and extremely unusual hardship to a qualifying relative,
defined as a “spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent
residence.” 8 U.S.C. § 1229b(b)(1).
Arteaga argues that the BIA’s analysis was doubly
flawed. First, she asserts, it violated her right to due process
by denying her application for cancellation of removal when
her husband’s application had been granted by a different IJ
in 2003. Second, she contends that the BIA impermissibly
treated her ability to return to the United States lawfully at
some indeterminate point in the future as necessarily
undercutting her claim that her children would suffer the
10 ARTEAGA -DE ALVAREZ V . HOLDER
requisite hardship if she were to be removed from the United
States. We examine each argument below.
A.
We cannot, of course, consider Arteaga’s claim that the
BIA’s decision violated her due process rights, unless we
have jurisdiction over that claim. We have jurisdiction over
a constitutional challenge to a BIA decision denying
cancellation of removal only if the constitutional claim is
“colorable”, i.e., if it has “some possible validity.” Martinez-
Rosas, 424 F.3d at 930 (internal quotation marks omitted).
Arteaga does not present a colorable due process claim.
Her due process claim is that the BIA’s and IJ’s failure to
follow the decision of another IJ, who granted her husband
cancellation of removal on the basis of “similar facts” four
years earlier, amounted to a violation of her due process
rights. We have already held, however, that we lack
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. Mendez-Castro, 552 F.3d at 980. In
Mendez-Castro we first stated that the exceptional and
extremely unusual hardship standard involves a subjective
determination “that depends on the identity and the value
judgment of the person or entity examining the issue.” Id.(internal quotation marks and citation omitted). We then
reasoned that a challenge to a hardship determination based
on prior agency hardship determinations, therefore,
impermissibly “require[s] us [to] step into the IJ’s shoes and
reweigh the facts in light of the agency’s subjective treatment
of purportedly similar cases.” Id. Accordingly, a challenge
to the agency’s hardship determination in which the applicant
ARTEAGA -DE ALVAREZ V . HOLDER 11
argues that his case is analogous to a prior case, is “not even
colorable, but merely an attempt to cloak an abuse of
discretion argument in the garb of a question of law.” Id.(internal quotation marks and brackets omitted).
Arteaga’s due process claims are indistinguishable from
Mendez-Castro’s. She argues that the denial of her
application for cancellation of removal is contrary to a prior
agency hardship determination, in this case the grant of
cancellation of removal to her husband four years earlier on
the basis of similar, but not identical facts.2 Because we are
bound by Mendez-Castro, which Arteaga does not attempt to
2
Arteaga fails to explain the basis on which her husband’s application
for cancellation of removal was granted; she merely asserts that his
application, which is not in the record, was based on “similar” facts.
Elsewhere in her briefing before this court, Arteaga claims that Alvarez’s
application contained the “same set of evidence,” but this assertion is
belied by the record. In April of 2003, when Alvarez was granted
cancellation of removal, Alvarez and Arteaga were not yet married. Their
middle daughter, who suffers from a speech impediment that has
improved over the years, and who did not begin to speak until she was 4,
would have been 5 at the time and therefore only just beginning to speak.
Furthermore, much of the evidence in the administrative record is dated
after April 2003, when Alvarez’s application was granted. Accordingly,
his application for cancellation of removal necessarily was not identical
to Arteaga’s. W e therefore have no reason to reach a more difficult
constitutional question, which was not addressed in Mendez-Castro, of
whether a petitioner could raise a colorable constitutional claim under the
equal protection clause if she were denied cancellation of removal when
her spouse was granted relief on a truly identical claim. Cf. Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (“[T]he equal protection
clause of the Fourteenth Amendment . . . secure[s] . . . against intentional
and arbitrary discrimination, whether occasioned by express terms of a
statute or by its improper execution through duly constituted agents.”
(internal quotation marks and citation omitted)).
12 ARTEAGA -DE ALVAREZ V . HOLDER
distinguish,3 we lack jurisdiction to review her due process
claim. We therefore dismiss this claim.
B.
We now turn to Arteaga’s claim that the BIA erred in
interpreting the statute setting forth the requirements for
cancellation of removal by holding that a petitioner’s
alternative means to immigrate to the United States
necessarily undercuts a claim of exceptional and extremely
unusual hardship.
1.
We must first determine whether we have jurisdiction to
hear this claim. We have jurisdiction to review the BIA’s
holdings regarding questions of law in cancellation of
removal cases, including issues involving statutory
interpretation. Figueroa v. Mukasey, 543 F.3d 487, 495 (9th
Cir. 2008). In Figueroa we exercised our jurisdiction to
review a claim that the BIA acted contrary to law by
requiring the petitioners to show “unconscionable” hardship
and by analyzing only current hardship, as opposed to future
hardship, to qualifying relatives. Id. at 496–98. We explained:
“Petitioners do not argue that the IJ made a legal error by
misapplying the facts of their case to the applicable law;
rather, they argue that the IJ made legal errors in determining
the meaning of ‘exceptional and extremely unusual
hardship.’” Id. at 495. Therefore, “[b]ecause Petitioners argue
3
W e note that the opening brief in this case was filed prior to the
decision in Mendez-Castro. However, Arteaga had the opportunity to
address the case, either in her reply brief, which was filed after Mendez-
Castro was decided, or in a letter to the panel.
ARTEAGA -DE ALVAREZ V . HOLDER 13
that the IJ failed to follow BIA precedent and misconstrued
the statute when determining whether Petitioners had
demonstrated ‘exceptional and extremely unusual hardship’
under 8 U.S.C. § 1229b(b)(1)(D), we hold that we have
jurisdiction to review their challenge.” Id. at 496; accord
Pareja v. Attorney General of the United States, 615 F.3d
180, 188 (3d Cir. 2010).
The same is true here. Arteaga argues that the BIA erred
as a matter of law by holding that the existence of alternative
means to immigrate to the United States — potential or
actual, determinate or indeterminate in time — necessarily
undercuts an applicant’s claim that his removal will result in
exceptional and extremely unusual hardship to his qualifying
relatives. Because this raises a colorable question of law, we
have jurisdiction to review whether the BIA “made a hardship
determination based on ‘an erroneous legal standard’ or ‘on
fact-finding which is flawed by an error of law.’” Pareja,
615 F.3d at 188 (quoting Mendez v. Holder, 566 F.3d 316,
322 (2d Cir. 2009) (per curiam)); see also Figueroa, 543 F.3d
at 496.
The government argues that we lack jurisdiction over this
issue because, in its view, the BIA did not in fact base its
denial of Arteaga’s application for cancellation of removal on
the ground that she had alternative means to immigrate.4 A
4
W e note that this is the only argument the government makes about the
alternative means to immigrate issue. The government failed to otherwise
address jurisdiction, standard of review, or the merits. The government
has a responsibility to defend the merits of a BIA decision when arguing
that an immigrant should be deported, or else to suggest a remand if the
BIA’s merits determination is unworthy of defense. We are not the first
14 ARTEAGA -DE ALVAREZ V . HOLDER
careful reading of the BIA’s opinion, however, shows that it
did rely, at least in part, on Arteaga’s alternative means to
immigrate to the United States as a basis for denying her
application for cancellation of removal. The BIA supported
its holding that Arteaga had not established that her children
would suffer the requisite hardship as a result of her removal
on several grounds. First, it incorporated “the reasons
identified by the Immigration Judge.” The IJ, in turn, had
explained why Arteaga did not meet the hardship requirement
in part by stating that “[h]er husband has filed a petition to
immigrate her. That is pending, and it will be some period of
time before a visa becomes available.” The IJ also stated at a
previous hearing that Alvarez’s lawful status was an
“important factor for me to take into consideration in the
case.” Second, the BIA reiterated the IJ’s finding that Arteaga
had not demonstrated that her daughter would be unable to
receive speech therapy in Mexico. Third, the BIA noted that
the IJ was not bound by the grant of cancellation of removal
to Alvarez. And fourth, the BIA explained that Arteaga’s
court to admonish the government for failing to address the merits of an
alien’s appeal. The Third Circuit recently wrote:
The government has every right – a duty, even – to tell
us when it believes we lack jurisdiction over a
particular case. But when the government seeks to
remove an individual from this country – a result the
Supreme Court has recognized as “a drastic measure
and at times the equivalent of banishment or exile,” – it
seems to us that the government has an especial
obligation to explain, in the event its jurisdictional
challenge fails, why the petitioner is wrong on the
merits.
Pareja, 615 F.3d at 186 n.3 (quoting Fong Haw Tan v. Phelan, 333 U.S.
6, 10 (1948)).
ARTEAGA -DE ALVAREZ V . HOLDER 15
husband was “now a lawful permanent resident who has filed
a visa petition on her behalf,” and that it had “long held that
the availability of an alternative means of lawfully
immigrating to the United States undercuts a claim of
exceptional and extremely unusual hardship.” In short, the
BIA stated that regardless of the merits of the claim, it is
undercut as a matter of law by the availability of alternative
means of immigrating.
Nowhere did the BIA suggest that the last part of its
holding relating to the availability of alternative means of
immigrating was meant as a holding in the alternative.
Rather, it is clear that the BIA determined that Arteaga did
not meet the exceptional and extremely unusual hardship
standard for a combination of the factors it cited, including
the availability of an alternative means of immigrating. It is
certainly true that the BIA also relied on other factors. We
cannot know, however, what the BIA might have held absent
its reliance in part upon the alternative means to immigrate
factor. Because we are barred from reweighing the hardship
factors in cancellation of removal cases, Mendez-Castro,
552 F.3d at 980, we cannot speculate how the BIA might
have decided this case had it not relied in part on each of the
factors it listed as supporting its decision. Accordingly, we
have jurisdiction to determine whether the BIA committed an
error of law in applying a categorical rule that the existence
of alternative means to immigrate is necessarily a negative
factor in all cases in which such alternative means may be
available to the applicant.
16 ARTEAGA -DE ALVAREZ V . HOLDER
2.
Having determined that we have jurisdiction over
Arteaga’s second claim, we must next determine what
deference, if any, we owe the BIA’s decision. Questions of
statutory interpretation are reviewed de novo, but we give
deference to the agency if warranted. Cabrera-Alvarez,
423 F.3d at 1009. “Because the BIA does have expertise in
[interpreting the Immigration and Nationality Act], we defer
to its conclusion if warranted, following the Chevron
framework if the decision is a published decision (or an
unpublished decision directly controlled by a published
decision . . .), and following the Skidmore framework if the
decision is unpublished (and not directly controlled by any
published decision interpreting the same statute).” Uppal,
605 F.3d at 714; see generally Chevron, U.S.A., Inc. v.
Natural Res. Def. Council, 467 U.S. 837 (1984); Skidmore v.
Swift & Co., 323 U.S. 134, 140 (1944). The weight given
under Skidmore “will depend upon the thoroughness evident
in its consideration, the validity of its reasoning, its
consistency with earlier and later pronouncements, and all
those factors which give it power to persuade, if lacking
power to control.” Skidmore, 323 U.S. at 140.
In this case, the BIA opinion is not a published decision.
Although the BIA cites to three published decisions, Matter
of Monreal, 23 I. & N. Dec. 56 (BIA 2001), Matter of
Andazola, 23 I. & N. Dec. 319 (BIA 2002), and Matter of
Recinas, 23 I. & N. Dec. 467 (BIA 2002), none directly
controls this question, i.e., whether the availability of
alternative means of immigrating is a factor that necessarily
undercuts an alien’s cancellation of removal claim of
exceptional and extremely unusual hardship to a qualifying
relative.
ARTEAGA -DE ALVAREZ V . HOLDER 17
In Monreal, the BIA simply held that the factors it had
previously used to assess hardship claims for suspension of
deportation relief should also be considered with regard to a
cancellation of removal hardship claim to the extent these
factors pertained to the hardship that would be suffered by an
applicant’s qualifying relatives.5 23 I. & N. Dec. at 63.
However, in suspension of deportation cases the availability
of alternative means of immigrating did not necessarily
undercut an applicant’s claim that he or his qualifying
relatives would suffer extreme hardship; the BIA was allowed
to consider this factor only when the applicant had “a realistic
chance for adjustment through other means in the near
future.” Gutierrez-Centeno v. INS, 99 F.3d 1529, 1532 n.6
(9th Cir. 1996). Therefore, by incorporating some of the
suspension of deportation hardship factors into the
cancellation of removal hardship enquiry, Monreal did not
establish the categorical rule the BIA relied upon here.
5
Suspension of deportation was the more generous predecessor of
cancellation of removal. See 8 U.S.C. § 1254(a)(2) (repealed 1996).
Under suspension of deportation, the BIA considered whether either the
applicant or his qualifying relatives would suffer “extreme” hardship as
a result of the applicant’s removal. Id.The suspension of deportation hardship factors were originally
enumerated in Matter of Anderson, 16 I. & N. Dec. 596, 597 (BIA 1978).
In addition to the alternative means to immigrate factor, the Anderson
factors are: “age of the subject; family ties in the United States and
abroad; length of residence in the United States; condition of health;
conditions in the country to which the alien is returnable— economic and
political; financial status— business and occupation;. . .; whether of special
assistance to the United States or community; immigration history; [and]
position in the community.” Id.18 ARTEAGA -DE ALVAREZ V . HOLDER
The other two cases cited by the BIA provide even less
support for the categorical rule. The alternative means to
immigrate factor is not mentioned at all in Andazola, 23 I. &
N. Dec. 319, and in Recinas the fact that the cancellation of
removal applicant had alternative means of immigrating in
the long term, but which were not available in the immediate
future, was actually considered a factor in favor of granting
cancellation of removal, not a factor necessarily undercutting
a claim of hardship. See 23 I. & N. Dec. at 470; see also
Gutierrez-Centeno, 99 F.3d at 1532 n.6 (requiring the BIA to
“realistically assess the efficacy of the alternative means of
adjustment of status before considering whether this factor
weighs against or in favor of extreme hardship, and how
much weight to give it” (emphasis added)).
Thus, Chevron deference is unwarranted because none of
the published decisions cited by the BIA controls this case.
Moreover, applying the Skidmore framework, the BIA
decision is not entitled to substantial weight. Its discussion
of the alternative means to immigrate factor consists of one
conclusory sentence. It is not throughly reasoned, and, as it
lacks any explanation, it also lacks the “power to persuade.”
Skidmore, 323 U.S. at 140.
3.
Having finally reached the merits, we conclude that the
BIA committed legal error by considering Arteaga’s
alternative means of immigrating to the United States as a
factor that necessarily undercuts her claim of exceptional and
extremely unusual hardship. Such a categorical rule is
contrary to the requirement that the BIA conduct an
individualized enquiry in each case and that each cancellation
of removal application “be assessed and decided on its own
ARTEAGA -DE ALVAREZ V . HOLDER 19
facts.” Monreal, 23 I. & N. Dec. at 63. Monreal points out
that the nature of the qualifying relative’s exceptional and
extremely unusual hardship is usually that such hardship is
serious and pressing. See id. Exceptional and extremely
unusual hardship arises, for example, when the applicant “has
elderly parents in this country who are solely depending upon
him for support” or his “qualifying child [has] very serious
health issues, or compelling special needs in school.” Id. It
is simply not the case in all such instances that an alien’s
alternative means of immigrating to the United States will
alleviate the qualifying relatives’ hardship. It is no solace, for
example, to a dying parent or a sick or educationally needy
child who is left behind in the United States that his caretaker
might someday return to the this country. Therefore, the
BIA’s reliance on a rule that “the availability of alternative
means of lawfully immigrating to the United States undercuts
a claim of exceptional and extremely unusual hardship,” in all
cases, constitutes an error of law.
We made a similar point under the previous suspension of
deportation standard, which permitted consideration of the
hardship that would be suffered by the applicant himself. We
stated:
[U]nless there is a realistic chance for
adjustment through other means in the near
future, this [alternative means to immigrate]
factor should not weigh against an alien. . . .
That an alien may be able to adjust his status
a number of years from the time of his
deportation does not significantly diminish the
hardship he would suffer if deported.
20 ARTEAGA -DE ALVAREZ V . HOLDER
Gutierrez-Centeno, 99 F.3d at 1532 n.6.6 This is even more
true with respect to hardship suffered by qualifying relatives.
Whereas the applicant himself might experience at least
some reduction in hardship if he is able to return within a
reasonable period after his removal, the sick parent or child
who dies in the meantime, or the child who permanently loses
the opportunity to receive special education or therapy during
the critical years that it is needed, will not experience a
reduction in that hardship as the result of the applicant’s
eventual return. The BIA recognized as much when it
applied Monreal in Recinas, and determined that in light of
the “significant backlog of visa availability to Mexican
nationals with preference classification,” Recinas’ ability to
immigrate at some indeterminate point in the future would do
nothing to alleviate the hardship her children would endure as
a result of her immediate removal. 23 I. & N. Dec. at 467.
The rule that alternative means of immigrating necessarily
undercuts a claim of hardship is also inconsistent with the
6
The dissent wrongly suggests that we are relying on Gutierrez-Centeno
for the proposition that we have jurisdiction to review the discretionary
weight that the BIA assigned to the IJ’s factual determination that
Arteaga’s “husband has filed a petition to immigrate her . . . and it will be
some period of time before a visa becomes available.” We do no such
thing. Our point is that the BIA relied at least in part upon an improper
rule of law, rather than balancing the Monreal hardship factors presented
by this particular case. Accordingly, we merely rely on Gutierrez-
Centeno’s statement, which was not affected by IIRIRA’s jurisdiction-
stripping provisions, that an applicant’s hardship claim is not necessarily
undercut, as a matter of law, by the fact that the applicant may be able to
return to this country by other means at some point in the indeterminate
future. Each case must be considered on its own facts, and had the BIA
done so here without relying on a categorical rule of law, we agree that we
would not have jurisdiction to review the BIA’s balancing of the hardship
factors.
ARTEAGA -DE ALVAREZ V . HOLDER 21
statute’s purpose: to provide discretionary relief to certain
undocumented aliens in order to protect citizens and
permanent residents from suffering exceptional or extremely
unusual hardship as the result of the removal of a relative
upon whom they are dependent for essential financial,
emotional, physical, or other support. The only aliens eligible
to apply for such relief are those with a spouse, parent, or
child who is a citizen or lawful permanent resident. 8 U.S.C.
§ 1229b(b)(1). Yet such aliens will be potential beneficiaries,
at some point, of a family-based petition filed by the
qualifying relative in almost every case. See 8 U.S.C.
§§ 1151(b)(2)(A)(i), 1153(a), 1255(a); 8 C.F.R. §§ 204.1–2.
Thus, a rule that alternative means of immigrating to the
United States necessarily undercuts a claim of hardship would
operate as a negative factor in almost every single
cancellation of removal case. Such a result would be contrary
to both the purpose and spirit of the hardship provision.
We do not mean to suggest that alternative means of
immigrating to the United States can never be a negative
factor in a hardship determination. For example, in an
unpublished decision, the BIA appropriately upheld the denial
of cancellation of removal in part based on this factor, where
it found that any separation was “unlikely to be prolonged.”
Matter of Al-Lahalih, 2005 WL 3016073, at *1 (BIA 2005).
The BIA in that case considered how alternative means of
immigrating affected the qualifying relative in that particular
case in light of the short length of separation. Id. Here,
however, as we have already explained, the BIA committed
an error of law by relying on a categorical rule that the
alternative means of immigration factor necessarily undercuts
an applicant’s claimed hardship in every case.
22 ARTEAGA -DE ALVAREZ V . HOLDER
In sum, a categorical rule that alternative means to
immigrate necessarily undercuts a claim of hardship is
inconsistent with the requirement that the agency examine
each applicant’s case on its individual facts. In most cases,
where the applicant does not have a readily available
alternative means of immigrating in the near future, the
distant possibility of doing so will do little to alleviate any
exceptional and extremely unusual hardship that the removal
would cause to a qualifying relative. Moreover, the
categorical rule applied by the BIA here is contrary to our
precedent, prior BIA decisions, and the underlying purpose of
cancellation of removal relief. We therefore hold that the
categorical rule constitutes an erroneous interpretation of the
statute, and remand to the BIA for reconsideration under the
appropriate legal standard.
VI. CONCLUSION
For the foregoing reasons, we dismiss for lack of
jurisdiction Arteaga’s claim that she was deprived of due
process because she was denied cancellation of removal even
though her husband, on similar facts, was granted relief four
years earlier. We do, however, have jurisdiction over her
second claim that the BIA committed an error of law in
relying on a categorical rule that the availability of alternative
relief necessarily undercuts a cancellation of removal claim
of hardship to the applicant’s qualifying relative. On that
claim, we hold that the BIA erred as a matter of law in
applying a categorical rule. On remand, the BIA may rely on
the alternative means to immigrate factor only to the extent
justified by the particular facts of this case.
VACATED and REMANDED.
ARTEAGA -DE ALVAREZ V . HOLDER 23
SILVERMAN, Circuit Judge, concurring in part and
dissenting in part:
I agree with the majority that we lack jurisdiction over
Petitioner’s due process claim and that we must dismiss that
aspect of the petition for review. However, I respectfully
disagree with the majority’s conclusion that the BIA, as a
matter of law, erred in finding Petitioner had an alternative
means to adjust her status, one of many factors relevant to the
“exceptional and extremely unusual hardship” requirement
for cancellation of removal. I would dismiss the petition for
review in its entirety.
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 stripped this court of its
jurisdiction to review these discretionary hardship
determinations. In Romero-Torres v. Ashcroft, 327 F.3d 887(9th Cir. 2003), we held that the hardship requirement posed
a “subjective question” and that “[b]ecause the BIA . . . is
vested with the discretion to determine whether an alien has
demonstrated the requisite hardship, we are without
jurisdiction to review the BIA’s hardship determinations
under IIRIRA.” Id. at 890–91. We reaffirmed this holding
after the REAL ID Act of 2005 was passed. Martinez-Rosas
v. Gonzales, 424 F.3d 926, 929–30 (9th Cir. 2005). The
majority relies on Gutierrez-Centeno v. I.N.S., 99 F.3d 1529,
1532 & n.6 (9th Cir. 1996), to argue that the BIA did not
adequately assess the individual facts of this case in
concluding an alternative means to adjust Petitioner’s status
was available. But that case was significantly undercut, if not
abrogated, by IIRIRA, and we have previously recognized as
much in Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 n.9
(9th Cir. 2003) (“The [petitioners] rely upon cases suggesting
that the BIA must explain how it balanced the particular facts
24 ARTEAGA -DE ALVAREZ V . HOLDER
of each case in reaching its hardship determination. But these
cases, which were decided before IIRIRA removed our
jurisdiction to review discretionary determinations of the
BIA, are not persuasive here.” (citations omitted)).
The majority takes issue with the IJ and BIA’s application
of one of a host of factors that may be considered for
cancellation of removal hardship findings: “the possibility of
other means of adjusting status in the United States.” Matter
of Monreal-Aguinaga, 23 I. & N. Dec. 56, 63 (BIA 2001)
(emphasis added). The IJ noted that Petitioner’s husband had
“filed a petition to immigrate her” and that it would be “some
period of time before a visa [became] available.” And though
the IJ acknowledged that removing Petitioner would impose
a hardship on her and her family, he nevertheless concluded
that the evidence simply did not rise to the level of an
“exceptional and extremely unusual hardship.” The BIA
expressly adopted this finding and the reasoning supporting
it. In closing, the BIA merely reiterated what the IJ had
noted–that her husband had filed a visa petition and that “the
availability of an alternative means of lawfully immigrating
to the United States undercuts a claim of exceptional and
extremely unusual hardship stemming from an alien’s
removal.” (Emphasis added).
The majority characterizes the BIA’s statement as a
“categorical rule” that alternative means to immigrate
“necessarily” preclude a finding of exceptional and extremely
unusual hardship. Aside from the fact that the BIA did not
rely solely on the alternative means factor, the BIA adopted
the IJ’s reasoned finding that immigrating by other means
was “available” in this case. By contrast, in Gutierrez-
Centeno, the BIA relied on petitioner’s representation that
“she has a brother who is a lawful permanent resident,
ARTEAGA -DE ALVAREZ V . HOLDER 25
indicating the potential, at least, for eventually other means
of adjusting her status.” 99 F.3d at 1532 (quotation marks
omitted). Here, both the IJ and the BIA concluded that
Petitioner had more than a merely theoretical possibility of
adjusting her status, and we may not revisit that finding. Had
Petitioner demonstrated that alternative relief was legally
unavailable or effectively unavailable due to a backlog of
applications or other severe delay, see Matter of Recinas,
23 I. & N. Dec. 467, 472 (BIA 2002), her claim might have
prevailed before the IJ. The IJ clearly acknowledged that a
visa would not issue instantaneously and that this would be a
hardship for her children, but he ultimately found those facts
did not meet the high statutory threshold. We may not
mandate the consideration of certain facts or factors as part of
this discretionary determination. See Mendez-Castro v.
Mukasey, 552 F.3d 975, 980 (9th Cir. 2009) (“[T]he IJ
expressly cited and applied Monreal in rendering its decision,
which is all our review requires.”).
Since we lack jurisdiction to second-guess the IJ and
BIA’s determination that Petitioner has an alternative means
to adjust her status, I would dismiss the petition for review in
full for lack of jurisdiction.