When a Stepparent is a Qualifying Relative for Cancellation of Removal Hardship (Matter of Morales)

Steprelationships in the immigration, myattorneyusa.com


Introduction: Matter of Morales, 25 I&N Dec. 186 (BIA 2010)

On January 27, 2010, the Board of Immigration Appeals issued a published decision in Matter of Morales, 25 I&N Dec. 186 (BIA 2010) [PDF version]. The question before the Board was whether a stepfather was a qualifying relative for establishing exceptional and extremely unusual hardship for non-lawful permanent resident cancellation of removal under section 240A(b)(I)(D) of the Immigration and Nationality Act (INA). The Board held that, provided that a stepparent-stepchild relationship was established in accord with section 101(b)(2) of the INA, the stepfather remains a qualifying relative for hardship purposes even after the child turns 21 years of age.

In this article, we will examine Matter of Morales in detail. Please see our related article on Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009) [PDF version] to learn about the Board's similar decision regarding whether stepchildren are qualifying relatives for hardship purposes [see article]. We discuss cancellation of removal and other forms of relief available in removal proceedings in our growing collection of articles on removal and deportation defense [see category]. Please see our index of articles on administrative precedent decisions under the immigration laws to read about more important BIA precedents [see index].

Factual and Procedural History: 25 I&N Dec. 186, 186 (BIA 2010)

In removal proceedings, an Immigration Judge found the respondent removable, denied his application for cancellation of removal under section 240A(b) of the INA, and granted his request for voluntary departure. In denying the application for cancellation of removal, the Immigration Judge held that the respondent's stepfather was not a qualifying relative for hardship purposes. The respondent appealed from the decision to the BIA.

The respondent argued that the Immigration Judge erred in holding that his stepfather was not a qualifying relative for hardship purposes. The Immigration Judge held that only the respondent's mother — a lawful permanent resident — was a qualifying relative for evaluating the hardship that may occur were the respondent to be removed from the United States. The Immigration Judge did note that the respondent's mother and his stepfather were married for over 20 years.

Board's Analysis and Conclusions: 25 I&N Dec. 186, 186-188

The definition of the terms “parent” and “child” for purpose of the immigration laws are set forth in section 101(b)(1) and (2) of the INA. Section 101(b)(2) defines a “parent” for immigration purposes as including only cases “where the relationship exist by any of the circumstances” sent forth in section 101(b)(1) of the INA. Under section 101(b)(1), a “child” is defined as “an unmarried person under twenty-one years of age.” Section 101(b)(1)(B) explicitly includes “stepchild” in this definition, “provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred.”

The Board discussed its existing precedent on stepparent-stepchild relationships under the INA. In Matter of Mourillon, 18 I&N Dec. 122, 125-26 (BIA 1981) [PDF version], the Board held that steprelationships may be terminated by death, divorce, or the legal separation of the parties whose marriage created the steprelationship. In Matter of Citino, 12 I&N Dec. 427, 428 (BIA 1967) [PDF version], the Board held that the marriage of the “child” does not terminate a steprelationship after the steprelationship was created. Taken together, the Board explained that its precedent establishes that “a stepparent remains a parent, even if the 'child' has married or is over 21 years of age, provided the marriage creating the steprelationship continues to exist.” The Board has applied these rules in the context of seeking relief from deportation or removal. In Matter of G-, 8 I&N Dec. 355, 359 (BIA 1959) [PDF version], the Board held that, for purpose of seeking immigration relief, once a relationship is established, the parent always remains the parent even after the child turns 21 years of age. In Matter of Portillo-Gutierrez [see article], decided mere months before the instant decision, the Board held that a stepchild who meets the definition of a child under section 101(b)(1)(B) of the INA at the time of the removal proceedings is a qualifying relative for hardship purposes. For these reasons, the Board held that, “in accord with our prior precedents, we conclude that a stepfather who qualifies as a 'parent' under section 101(b)(2) of the [INA] at the time of proceedings is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal under section 240A(b)(I)(D) of the Act.” (Emphasis added.)

The Board then moved to apply its rule to the particular facts of the instant case. At the time of the respondent's removal hearing, his mother had been married to his stepfather for over 20 years. The respondent was born on November 7, 1972. The Board concluded that based on these facts — found by the Immigration Judge — “the respondent would have been, at most, 15 years old when his stepfather became his parent.” Thus, the Board concluded that “the required steprelationship was validly created pursuant to law because it was established prior to the time the respondent reached the age of 18 years.” Because the steprelationship was validly created under the INA and the respondent's mother and stepfather remained married, the Board held that “the respondent's stepfather should have been given full consideration as a qualifying relative in evaluating the hardship in this case.” The Board remanded to the Immigration Judge to reevaluate his findings considering whether the respondent established the requisite hardship to a qualifying relation for purposes of cancellation of removal under section 240A(b)(I)(D) of the INA.


The instant precedent, along with Matter of Portillo-Gutierrez, provides clear rules for when a stepparent or stepchild constitutes a qualifying relationship for demonstrating hardship for eligibility for cancellation of removal. The instant decision sweeps somewhat more broadly in the sense that it makes clear that the qualifying relationship must be evaluated at the time of the removal proceedings. See Matter of Valentin Isidro-Zamorano, 25 I&N Dec. 829, 831 (BIA 2012) [PDF version] (citing to Matter of Morales for proposition that the status of qualifying relative is to be considered at the time of proceedings). Here, the Board held that provided that a steprelationship was created in conformance with the INA and continues to exist, a stepparent is a qualifying relative for hardship purposes. The decision also reaffirms the Board's prior precedents regarding steprelationships in the immigration context.

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