Alberto Mendez-Garcia v. Loretta Lynch

840 F.3d 655, 2016 WL 6122777
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 20, 2016
Docket15-71931, 13-72924
StatusPublished
Cited by43 cases

This text of 840 F.3d 655 (Alberto Mendez-Garcia v. Loretta Lynch) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alberto Mendez-Garcia v. Loretta Lynch, 840 F.3d 655, 2016 WL 6122777 (9th Cir. 2016).

Opinions

Concurrence by Judge WATFORD

OPINION

IKUTA, Circuit Judge:

Alberto Mendez-Garcia’s application for cancellation of removal - claimed that his removal would result in hardship to his son, who was a United States citizen under 21 years of age at the time of the application. See 8 U.S.C. § 1229b(b)(l)(D). Mario Rivera-Baltazar’s application for cancellation of removal made the same claim with respect to his son, who was likewise a citizen who had not yet turned 21.1 While these applications were pending, the petitioners’ sons turned 21 and no longer met the statutory definition of “child,” see 8 U.S.C. § 1101(b)(1). The Board of Immigration Appeals (BIA) held that because the petitioners’ sons were no longer children, the petitioners had failed to show that their removal would result in a hardship to a qualifying relative, and therefore they were ineligible for cancellation of removal. Mendez-Garcia and Rivera-Balta-zar petition for review of the BIA’s denial of them applications. We have jurisdiction under 8 U.S.C. § 1252, and now deny their petitions for review.

I

We begin by describing the legal background. The Immigration and Nationality Act (INA) gives the Attorney General discretion to cancel the removal of an alien who is inadmissible or deportable from the [659]*659United States. 8 U.S.C. § 1229b(b)(l). In order to be eligible for this relief, the alien must meet four statutory requirements, which include establishing “that removal would result in exceptional and extremely unusual hardship to the alien’s 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)(l)(D).2 The INA defines “child” as “an unmarried person under twenty-one years of age” who additionally satisfies one of several criteria. Id. § 1101(b)(1).

Section 1229b(b)(l)(D) does not directly identify the point in time when the alien’s removal must result in a hardship to a qualifying relative. The section does not specify whether the alien’s removal must result in a hardship at the time the alien receives a notice to appear, at the time the alien files the cancellation of removal application, at the time the immigration judge (IJ) adjudicates the application, or at some other time. The BIA has addressed this issue in two precedential decisions. See Matter of Isidro-Zamorano, 25 I. & N. Dec. 829, 880-31 (BIA 2012); Matter of Bautista Gomez, 23 I. & N. Dec. 893, 894 (BIA 2006). Bautista Gomez involved an alien whose parents had become lawful permanent residents (and thus qualifying relatives for purposes of § Y229b(b)(l)(D)) after the alien’s application for cancellation of removal was initially denied. After her parents .became lawful permanent residents, the alien-filed a motion to reopen. The IJ had denied the motion because the alien did not have a qualifying relative at the time the alien received the notice-to appear. Bautista Gomez, 23 I. & N. Dec. at 894. The BIA vacated the IJ’s decision. It held that “an application for relief from removal is a continuing one,” so that both the issue of good moral character, § 1229b(b)(l)(B), and “the issue of qualifying relatives” should be determined “as of the time an application -for cancellation of removal is finally decided.” Id. The BIA reasoned that “[ojtherwise, such factors as the birth of a United States citizen child, marriage to a lawful permanent resident or citizen, or a serious accident or illness involving a qualifying relative could not' be used as the basis for a motion to reopen to file, or to seek further consideration of, an application 'for cancellation of removal.” Id. Because the alien’s' parents were qualifying relatives at the time the IJ adjudicated the alien’s application for' cancellation of removal, the alien met thé requirement in § 1229b(b)(l)(D). Id.

The BIA subsequently applied this rule in a decision involving an alien who lost his qualifying relative before his application was adjudicated. See Isidro-Zamorano, 25 I. & N. Dec. at 830-31. Isidro-Zamorano involved an alien whose appli[660]*660cation for cancellation' of removal identified his son, a United States citizen, as his qualifying relative. The son was under 21 at the time the alien filed the application, but had turned 21 by the time the application was adjudicated. Noting its longstanding rule that an application for relief from removal is a continuing application, the BIA concluded that the alien “did not have a qualifying relative when the Immigration Judge adjudicated the application and therefore could not establish eligibility for relief.” Id. at 831. Isidro-Zamorano recognized that the case presented “a difficult situation because [the alien] has lost his eligibility for relief’, during the pen-dency of his application, while the alien in Bautista Gomez had acquired qualifying relatives during this period, and therefore benefitted from the BIA’s interpretation of § 1229b(b)(l)(D). Id. at 831 & n.2. Nevertheless, the BIA concluded that it “must, of course, interpret the provision consistently” regardless whether the interpretation benefits or harms the alien’s interests. Id. The BIA then reiterated its conclusion that the issue of qualifying relatives should be considered “at the time an application for cancellation of removal is decided,” because “[ojtherwise, factors arising subsequent to the filing of an application that may be 'favorable to the respondent’s claim, such as the birth of a United States citizen child, marriage to a lawful permanent resident or citizen, or a serious accident or illness involving a qualifying relative, could not be considered in determining the existence of exceptional and extremely unusual hardship.” Id. at 830-31; see, e.g., Bautista Gomez, 23 I. & N. Dec. at 894.

In addition to prescribing eligibility requirements for inadmissible or deportable aliens seeking cancellation of removal, see 8 U.S.C. § 1229b(b), the INA imposes an annual limit on the number of aliens who may receive cancellation relief. See 8 U.S.C. § 1229b(e)(l); see also 8 C.F.R. § 1240.21. Under the cap imposed by § 1229b(e)(l), “the Attorney General may not cancel the removal and adjust the status under this section ... of more than 4,000 aliens in any fiscal year.”

Even when an alien otherwise qualifies for relief and the annual number of grants has not been exhausted, “the ultimate decision whether to grant relief ... rests with the Attorney General.” Romero-Torres v. Ashcroft, 327 F.3d 887, 889 (9th Cir. 2003).

II

We next turn to the facts of these consolidated cases.

A

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Bluebook (online)
840 F.3d 655, 2016 WL 6122777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alberto-mendez-garcia-v-loretta-lynch-ca9-2016.