Introduction: Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009)

On November 30, 2009, the Board of Immigration Appeals (BIA) published a precedential decision in the Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009) [PDF version]. The Board held that a stepchild who meets the definition of “child” under section 101(b)(1)(B) of the Immigration and Nationality Act (INA) is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for non-lawful permanent resident cancellation of removal under section 240A(b)(1)(D) of the INA.

In this article, we will examine the Board’s decision in Matter of Portillo-Gutierrez. To learn more about cancellation of removal and related issues, please see our website’s growing collection of articles on removal and deportation defense [see category]. To read about our other articles on BIA precedent decisions, please see our article index [see index].

Factual and Procedural History: 25 I&N Dec. 148, 148-49 (BIA 2009)

The respondent, a native and citizen of Mexico, admitted that he had entered the United States, without having been admitted or paroled, on or about September 1, 1996. The respondent was placed in removal proceedings as an alien who was present in the United States without having been admitted or paroled. He conceded removability and applied for cancellation of removal under section 240A(b)(1)(D) of the INA.

The respondent married a lawful permanent resident on May 25, 2007. The record indicated that they had been together for about ten years prior to marrying. The respondent and his wife had two sons, aged 8 and 9. The respondent’s wife had two other children, one boy and one girl. The girl had special needs. Both the respondent and his wife testified in removal proceedings that the respondent was the primary caretaker of the children.

The Immigration Judge concluded that the respondent met the physical presence and good moral character requirements for cancellation of removal. The Immigration Judge denied the application, however, because he found that the respondent did not establish the requisite level of “extremely and unusual hardship” — required by the cancellation statute — to warrant relief. The Immigration Judge acknowledged that the respondent considered the girl with special needs to be his daughter, but found that there was no evidence that the respondent had adopted the girl or that she would otherwise be considered to be the respondent’s child under the INA. For this reason, the Immigration Judge did not consider the girl to be a “qualifying relative” for the respondent to establish the requisite level of hardship , and instead considered her medical conditions for the limited purpose of hardship to the respondent’s wife in the event of his removal to Mexico.

Board’s Analysis and Conclusions: 25 I&N Dec. 148, 149-50 (BIA 2009)

The Board explained that section 101(b)(1) of the INA defines a “child” as “an unmarried person under twenty-one years of age.” Section 101(b)(1)(B) explicitly includes “stepchild” in the definition of “child” for purpose of the immigration laws, “whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred…” In light of the statutory language, the Board observed that “[n]o separate adoption is required for a stepchild to be considered a ‘child.’”

Applying the statutory interpretation to the facts of the instant matter, the Board held that the respondent’s wife’s children became his children for purposes of the INA in 2007, when they were married. The Board noted that at the time of the respondent’s hearing before the Immigration Judge. his stepdaughter was 12 years of age, and she thus qualified as a “child” under section 101(b)(1)(B) of the INA. For this reason, the Board held that “she should have been given full consideration as a qualifying relative in evaluating the hardship in this case” under section 240A(b)(I)(D) of the INA. The Board added that the respondent’s stepson, who was 15 at the time of the hearing, should have also been considered a qualifying relative.

Thus, the Board sustained the respondent’s appeal and remanded the record to the Immigration Judge to reevaluate his findings regarding the hardship that the respondent’s family might suffer were he to be removed from the United States.

Conclusion

The Board adopted a plain-language reading of section 101(b)(1)(B) to find that a “stepchild” is a qualifying relative for establishing hardship for cancellation of removal purposes. A few short months later, the Board published Matter of Morales, 25 I&N Dec. 186 (BIA 2010) [PDF version], wherein it held that a stepparent is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal. We discuss Matter of Morales in a separate post [see article]. Although the decisions are specifically about cancellation of removal, they highlight the fact that a stepchild who meets the INA’s definition of “child” is a child for all purposes under the immigration laws.

An alien in removal proceedings should always consult with an experienced immigration attorney for case-specific guidance.