BIA Holds Child Can Cease Being a Qualifying Relative

Cancellation of removal is a form of relief available to certain permanent residents and non-permanent residents in removal proceedings before the Immigration Judge. A non-permanent resident may seek cancellation of removal if the alien has been in the United States continuously for at least ten (10) years, is a person of good moral character, and can establish that his or her removal would result in “exceptional and extremely unusual hardship” to the alien's United States citizen or legal permanent resident spouse, parent, or child. A “child” is defined by the Immigration and Nationality Act (INA) as “an unmarried person under twenty-one years of age.” INA §101(b)(1). In the Matter of Valentin Isidro-Zamorano, the Board of Immigration Appeals (BIA) recently addressed how to handle an application of cancellation of removal where the son or daughter met the definition of a “child” when the application was filed with the Immigration Court, but subsequently turned twenty-one (21) before the Immigration Judge was able to adjudicate the application on the merits, which resulted in the alien no longer having a qualifying relative under section 240A(b)(1)(D) of the INA. See Matter of Valentin Isidro-Zamorano, 25 I&N Dec. 829 (BIA 2012).

The alien in the Matter of Valentin Isidro-Zamorano was a native and citizen of Mexico who had entered the United States without inspection on May 1, 1994. Id. His son, a United States citizen, was born on January 29, 1985. Id. at 829-830. The alien was subsequently placed in removal proceedings. He filed an application for cancellation of removal (EIOR-42B) with the Immigration Judge in 2005. Id. at 830. At the time this application was filed, the alien's son was under twenty-one (21) years of age. Id. Before the Immigration Judge could adjudicate the application for cancellation of removal, the alien's son turned twenty-one (21). The Immigration Judge concluded “the son could no longer be a qualifying relative for purposes of establishing the respondent's eligibility for cancellation of removal and denied the application.” Id. The BIA dismissed the alien's appeal on August 30, 2007.

The Court of Appeals for the Ninth Circuit remanded the case to the BIA “to determine whether Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006), 'should be extended to circumstances like those in this case.'” Isidro-Zamorano v. Holder, 365 F. App'x 846, 847 (9th Cir. 2010). Id. at 829. The issue before the BIA in Matter of Bautista Gomez was whether the applicant for cancellation of removal must establish he or she was eligible for such relief at the time the notice to appear was served. In the Matter of Bautista Gomez, the alien was ineligible for cancellation of removal as she did not have a qualifying relative. The alien subsequently filed a motion to reopen arguing she acquired qualifying relatives as her parents were granted cancellation of removal in the same removal proceedings. However, the Immigration Judge denied her motion to reopen based upon a conclusion that she did not have qualifying relatives at the time she was served with the notice to appear placing her in removal proceedings. The Immigration Judge relied upon 8 C.F.R. §1003.23(b)(3), which provides “that a motion to reopen for consideration or further consideration of an application for cancellation of removal '[p]ursuant to section 240A(d)(1) [ ] may be granted only if the alien demonstrates that he or she was statutorily eligible for such relief prior to the service of a notice to appear.'” Matter of Valentin Isidro-Zamorano, 25 I&N at 830.

The BIA reversed the decision in the Matter of Bautista Gomez holding, “[b]ecause the regulation made reference to section 240A(d)(1) of the Act [ ] its restriction only applied to an applicant's continuous physical presence requirement.” Id. As the alien in the in the Matter of Bautista Gomez had satisfied the continuous physical presence requirement at the time she was served with the notice to appear, the BIA concluded the alien “could establish eligibility for cancellation of removal based on the acquisition of qualifying relatives.” Id. The BIA specifically held “that the issues of good moral character and qualifying relatives are properly considered at the time an application for cancellation of removal is decided.” Id. at 830-831 citing Matter of Bautista Gomez, 23 I&N Dec. at 894-95. A contrary position would result in a situation where “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 831.

However, in the Matter of Isidro-Zamorano, the BIA declined to extend the rationale in the Matter of Bautista Gomez to a situation where the qualifying child no matter met the definition of a child at the time the Immigration Judge adjudicated the application on its merits. Id. The BIA relied on prior precedent that established an application for relief from removal was a “continuing” application. Id. See also Matter of Garcia, 24 I&N Dec. 179, 181 (BIA 2007); Matter of Castro, 19 I&N Dec. 692 (BIA 1988); and Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005). The BIA held “[c]onsistent with this principle, we conclude that the respondent did not have a qualifying relative when the Immigration Judge adjudicated the application and therefore could not establish eligibility for relief.” Id. See Matter of Morales, 25 I&N Dec. 186, 187 (BIA 2010); and Matter of Portillo-Gutierrez, 25 I&N Dec. 148, 149 (BIA 2009). Though this ruling created a difficult situation for the alien, the BIA found there was “no basis in law to conclude that an applicant in the respondent's circumstances, who loses his qualifying relationship before his application is even adjudicated on its merits by the Immigration Judge, nonetheless retains his eligibility for cancellation of removal.” Id.

The BIA further addressed whether the Child Status Protection Act (CSPA) applied to the situation in the Matter of Isidro-Zamorano. The BIA was not persuaded that the intent of the CSPA “was to allow an alien whose qualifying relative had turned 21 to retain eligibility for cancellation of removal.” Id. Rather, the CSPA was intended to preserve “the 'child status' for individuals who qualified as a 'child' at the time a visa petition or application for permanent resident or derivative asylum status was filed on their behalf, but who turned 21 before a final adjudication was made.” Id. The BIA found its position was reinforced given the language of the CSPA “explicitly refer[ed] to certain forms of relief and to particular sections of the Act”, Id., of which cancellation of removal was not included.

There is a potential glimmer of hope for an alien who finds himself or herself in a similar situation to the alien in the Matter of Isidro-Zamorano. The BIA did not foreclose an argument that the qualifying child should still be considered a “child” after attaining the age of twenty-one (21) where there was an “improper delay on the part of the Immigration Judge”, Id. at 832, or where there was “an unreasonable or even unusual amount of time for the conclusion of removal proceedings.” Id. If you or a loved one is in a situation where the qualifying child is nearing the age of twenty-one (21), it is important to retain an experienced attorney to assist you to avoid being in the same situation as the alien in the Matter of Isidro-Zamorano. However, if you find yourself in a situation where your son or daughter has already turned twenty-one (21) it is imperative that you retain experience counsel to determine whether you can argue the removal proceedings were improperly or unreasonably delayed or whether there are other applications for relief you could pursue.