Figueroa v. Mukasey

• Decision Date: 10 September 2008
• Docket Number: No. 05-75157.,05-75157.
• Citation: 543 F.3d 487
• Parties: Luis Arnoldo Alvarez FIGUEROA; Hilda Guerra De Alvarez, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

543 F.3d 487

Luis Arnoldo Alvarez FIGUEROA; Hilda Guerra De Alvarez, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 05-75157.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2008.

Filed September 10, 2008.

Philip Barilovits, Dechert LLP, Palo Alto, CA, and Kathy J. Huang, Reed Smith LLP, Los Angeles, CA, for the petitioners.

Julie S. Pfluger, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A77-852-396, A77-852-397.

Before: A. WALLACE TASHIMA, M. MARGARET McKEOWN, and RONALD M. GOULD, Circuit Judges.

TASHIMA, Circuit Judge:

Luis Arnoldo Alvarez Figueroa and Hilda Guerra de Alvarez ("Petitioners") are a married couple who concede that they are removable aliens. They petition this Court to review the Board of Immigration Appeals' ("BIA") denial of their Application for Cancellation of Removal. Petitioners contend that the Immigration Judge ("IJ") applied improper legal standards in determining whether Petitioners had demonstrated that their removal would result in a sufficient hardship to their two citizen-children. Petitioners also argue that their petition should be granted and the IJ's opinion vacated because the IJ's opinion is indiscernible. The government, on the other hand, argues that we lack jurisdiction to hear Petitioners' challenge because Petitioners seek review of a discretionary determination, which this Court lacks jurisdiction to review, and because Petitioners failed to exhaust their administrative remedies with the BIA. For the reasons discussed below, we hold that Petitioners exhausted their challenges, that we have jurisdiction to hear their legal challenges, and that the IJ committed legal error. Thus, we grant the petition and remand the case to the BIA for further proceedings.

I. JURISDICTION

Petitioners invoke this Court's jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D). The government argues that we lack jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(B)(i). Because jurisdiction is disputed, we consider the jurisdictional question in Part IV.A, infra. We, of course, have jurisdiction to determine our own jurisdiction. See Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000).

II. FACTUAL AND PROCEDURAL BACKGROUND

Petitioners, husband and wife, are the parents of three children—Claudia, the eldest child, Louis and Natalie. The latter two are United States citizens. Petitioners and Claudia are aliens from Jalisco, Mexico.

In July 1999, Petitioners filed an Application for Asylum and Withholding of Removal with the then-Immigration and Naturalization Service ("INS"). Shortly after filing that application, Petitioners received from the INS a Notice to Appear charging that they were subject to removal from the United States. Petitioners then filed an Application for Cancellation of Removal and Adjustment of Status.

Removal proceedings began in September 1999. At the initial hearing, Petitioners conceded removability, and the IJ designated Mexico as the country of removal. The next hearing was held in February 2003 before Immigration Judge Wendell A. Hollis ("IJ"). At that hearing, Petitioners withdrew their application for asylum and pursued only cancellation of removal and adjustment of status pursuant to the Immigration and Nationality Act ("INA") § 240A(b), 8 U.S.C. § 1229b(b). In the alternative, Petitioners asked for a grant of voluntary departure pursuant to INA § 240B(b), 8 U.S.C. § 1229c(a).

In order to show that they were eligible for cancellation of removal, Petitioners had to demonstrate that: (1) they had been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of their application; (2) they have been persons of good moral character during that period; (3) they had not been convicted of certain offenses; and (4) removal would result in an exceptional and extremely unusual hardship to their citizen-children. See 8 U.S.C. § 1229b(b).

In support of that showing, Petitioners testified and provided other evidence that they had been physically present in the United States for a continuous period of not less than ten years, that they were persons of good moral character, and that they have never been convicted of a crime. Petitioners also testified that in the event of their removal, they would take their children to Mexico. The IJ, in his oral opinion, found them credible, that they met the continual presence requirement, that they were of good moral character, and that they had not been convicted of a crime.

To demonstrate that their removal would result in an exceptional and extremely unusual hardship to their two citizen-children, Dr. Lesleigh Franklin, a clinical psychologist, testified to the effect a move to Mexico would have on Louis, the then-13-year-old citizen-son. Louis had been diagnosed with depression and Attention Deficit Hyperactivity Disorder ("ADHD"), for which he was treated with medication. Louis' school in the United States accommodated Louis with Special Education resources. Dr. Franklin testified that Louis needed support beyond medication in order for him to maintain his academic grade level, that Louis needed services which may not be provided in Mexico, and that moving to Mexico would create enormous emotional problems for Louis. Dr. Frank Ephram Lopez, a physician and specialist in pediatrics, reported that in light of Louis' conditions, it would not be "medically advisable" to move Louis "to an environment in which medical treatment and academic support is inferior or nonexistent."

Petitioners also presented evidence that Natalie, the then-eight-year-old citizen-daughter, lacked Spanish language skills, and that she had an eye condition which may develop into something worse in her adult years, although the only treatment called for at that time was eyeglasses and future eye examinations.

The IJ, in his oral opinion, concluded that Petitioners had failed to demonstrate the necessary hardship, stating that, in order to prevail, Petitioners would have to demonstrate that the hardship would be "unconscionable." The opinion is, in part, nonsensical. See, e.g., IJ Opinion at 20 ("The first observation is I cannot believe that Congress intended that Immigration Judges should look upon a child that is perfect with no health for we all know that every child has medical disorders and be it colds, infections, flu, allergies."). In part, it is also incoherent. See, e.g., IJ Opinion at 26 ("But more importantly, this Court in trying to filter the (indiscernible) educational information through the (indiscernible) of the legal analysis of exceptional and extremely unusual hardship, believes that this case falls short.").

Petitioners appealed the IJ's decision to the BIA, and the BIA adopted and affirmed the IJ's decision, citing its decision in In re Burbano, 20 I. & N. Dec. 872 (BIA 1994). Petitioners then filed a timely petition for review.

III. STANDARD OF REVIEW

Where the BIA expresses no disagreement with any part of the IJ's decision, but instead cites In re Burbano, as it did here, the BIA adopts the IJ's decision in its entirety. See Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir.2005) (en banc). A Burbano affirmance signifies that the BIA has conducted an independent review of the record and has determined that its conclusions are the same as those articulated by the IJ. See id. at 1040. In such a case, we review the IJ's decision as if it were the decision of the BIA. See id. at 1040-41. And, we review legal questions addressed by the IJ de novo. See Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir.2005).

IV. ANALYSIS

Petitioners first contend that the IJ erred by applying the wrong legal standard in requiring Petitioners to show that the hardship suffered by their citizen-children would be "unconscionable"—a standard expressly rejected in the BIA's precedential opinions, and by considering only the hardship currently suffered by the children due to their medical conditions without considering the hardship the children would suffer in the event that their parents were removed. They contend that the IJ's opinion should be vacated and remanded for this reason. Petitioners also contend that this Court should grant the petition, vacate the IJ's opinion, and remand to the BIA on the separate ground that the IJ's decision is indiscernible.

The government moved to dismiss this case for want of jurisdiction, but a motions panel of this Court denied that motion without prejudice to the argument being renewed before the merits panel. Thus, the government once again argues that we lack jurisdiction over this petition on the ground that Petitioners seek review of a discretionary decision. The government further argues that we lack jurisdiction because Petitioners failed to exhaust their legal challenges with the BIA. We first consider the jurisdictional questions, then address Petitioners' legal challenges on the merits.

A. Jurisdiction

1. Exhaustion

As a threshold matter, the government argues that even if we have jurisdiction as a general matter to review a petitioner's challenge based upon the IJ's legal errors, we nevertheless lack jurisdiction in this case because Petitioners failed to exhaust their legal challenges before the BIA.¹

The government of course is correct that we can consider Petitioners' challenges only if those issues were raised before the BIA. See Kaganovich v. Gonzales, 470 F.3d 894, 896-97 (9th Cir.2006). That is, we have jurisdiction to review a final order of removal and the issues raised in a petition for review only if "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). Because "the policy underlying the exhaustion requirement is to give an administrative agency the opportunity to...