     08-0360-ag(L), 08-2716-ag(Con)
     Aragon De La Cruz v. Holder

 1                                                                                                   BIA
 2                                                                                              Straus, IJ
 3                                                                                           A72 521 870
 4
 5
 6                                 UNITED STATES COURT OF APPEALS
 7                                    FOR THE SECOND CIRCUIT
 8
 9                                    SUMMARY ORDER
10
11   Rulings by summary order do not have precedential effect. Citation to a summary order
12   filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
13   Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
14   document filed with this court, a party must cite either the Federal Appendix or an
15   electronic database (with the notation “summary order”). A party citing a summary order
16   must serve a copy of it on any party not represented by counsel.
17
18           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
19   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
20   on the 24th day of March, two thousand ten.
21
22   PRESENT:
23               BARRINGTON D. PARKER,
24               PETER W. HALL,
25               GERARD E. LYNCH,
26                           Circuit Judges,
27   ______________________________________________
28
29   DAVID SALVADOR ARAGON DE LA CRUZ,
30                           Petitioner,
31
32                            v.                                         No. 08-0360-ag(L)
33                                                                       No. 08-2716-ag(Con)
34
35   ERIC H. HOLDER, JR.,1 UNITED STATES ATTORNEY GENERAL,
36                                 Respondent.
37   ______________________________________________



             1
             Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric. H.
     Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as
     respondent in this case.

                                                      1
 1   FOR PETITIONER:                      JON E. JESSEN (Stuart Goldberg), Law Office of Jon E.
 2                                        Jessen, LLC, Stamford, CT
 3
 4   FOR RESPONDENT:                      STUART NICKUM (Jennifer Paisner Williams, Senior
 5                                        Litigation Counsel, Ana T. Zablah-Monroe, Trial
 6                                        Attorney), Office of Immigration Litigation, for Gregory G.
 7                                        Katsas, Assistant Attorney General, Civil Division, United
 8                                        States Department of Justice, Washington, D.C.
 9
10          Appeal from the Board of Immigration Appeals

11          UPON DUE CONSIDERATION of these petitions for review of two Board of

12   Immigration Appeals (“BIA”) decisions, it is hereby ORDERED, ADJUDGED, AND

13   DECREED, that the petition for review from the BIA’s decision on appeal (Docket No. 08-0360-

14   ag(L)) is GRANTED. Both orders of the Board of Immigrations Appeals are VACATED, and

15   the case is REMANDED to the BIA for further proceedings consistent with this order.

16          Petitioner David Salvador Aragon De La Cruz, a native and citizen of Guatemala, seeks

17   review of a decision of the BIA dated December 20, 2007, adopting and affirming the decision of

18   Immigration Judge Michael Straus (“IJ”), denying Petitioner’s request for Cancellation of

19   Removal and ordering Petitioner’s removal to Guatemala. In re David Salvador Aragon De La

20   Cruz, No. A72 521 870 (B.I.A. Dec. 20, 2007), aff’g No. A72 521 870 (Immig. Ct. Hartford, CT

21   June 9, 2006). Petitioner additionally seeks review of a subsequent BIA decision denying his

22   Motion to Reopen. In re David Salvador Aragon De La Cruz, No. A72 521 870 (B.I.A. May 28,

23   2008). We assume the parties’ familiarity with the facts, procedural context, and specification of

24   appellate issues.

25          The IJ, finding that Petitioner demonstrated the requisite physical presence and good

26   moral character required of section 240A(b) of the Immigration and Nationality Act (“INA”), 8

27   U.S.C. § 1229b(b)(1), based his denial of Petitioner’s application for cancellation of removal

28   instead on the fact that Petitioner could not meet his burden of proof that his removal would

                                                     2
 1   result in exceptional and extremely unusual hardship to his U.S. citizen daughter Leslie

 2   Samantha Aragon Hernandez (“Leslie”).2

 3             We begin our discussion by noting that the determination of our jurisdiction is

 4   exclusively ours to decide. See Mugalli v. Ashcroft, 258 F.3d 52, 55 (2d Cir. 2001). This Court

 5   generally lacks jurisdiction to review discretionary decisions such as the denial of a waiver of

 6   removal under section 212(i) of the INA. 8 U.S.C. § 1182(a)(9)(B)(v) (“No court shall have

 7   jurisdiction to review a decision or action of the Attorney General regarding a waiver [of

 8   inadmissibility] under [8 U.S.C. § 1182(a)(9)(B)(v)].”). However, this Court has also stated that

 9   “the determination of whether exceptional and extremely unusual hardship is present for the

10   purposes of cancellation of removal is beyond our jurisdiction to review, except in those rare

11   cases where the BIA decision on whether this kind of hardship exists is made without rational

12   justification or based on an erroneous legal standard, or rests on fact-finding which is flawed by

13   an error of law.” Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009) (quoting Barco-Sandoval

14   v. Gonzales, 516 F.3d 35, 39 (2d Cir. 2008)). We acknowledged in Mendez that “the agency

15   does not commit an ‘error of law’ every time an item of evidence is not explicitly considered or

16   is described with imperfect accuracy, but where . . . some facts important to the subtle

17   determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and

18   others have been seriously mischaracterized, we conclude that an error of law has occurred.” Id.

19   at 323.




               2
              Petitioner’s daughter is referred to as “Leslie Samantha Aragon Hernandez” by Petitioner
     and “Leslie Samantha Aragon Mejia” by Respondent. The Court will use the former name as
     that is her name on her birth certificate.

                                                        3
 1          In his appeal to the BIA, Petitioner argued that the IJ did not consider that Blanca Mehija

 2   (“Ms. Mehija”),3 his partner at the time (now wife) and mother of Leslie, was from El Salvador

 3   and had Temporary Protected Status (“TPS”) under Section 244(a)(1)(A) of the INA, 8 U.S.C.

 4   §1254a(a)(1)(A). Thus, according to Petitioner, were he returned to Guatemala, there would be

 5   questions about where Leslie would live and whether the family could ever be reunited if and

 6   when Ms. Mehija’s status expired.

 7          Petitioner did not specifically raise these questions during his testimony before the IJ,

 8   focusing instead on the emotional and financial hardships that would result were he separated

 9   from his daughter. However, in his memorandum in support of his application for removal,

10   submitted to the IJ prior to the hearing, Petitioner argued that Leslie “could face discrimination,

11   oppression, beatings and possibly an early death if required to move to either of her parent’s

12   native countries” and therefore would experience “extreme and unusual hardship.” In support of

13   that argument, Petitioner cited the Amnesty International Annual Report for both Guatemala and

14   El Salvador, copies of which he submitted as exhibits along with the memorandum. Petitioner

15   further emphasized that if he is removed from the United States, “Leslie will experience even

16   greater hardship when her mother is required to return to El Salvador forcing Leslie to emigrate.”

17          The IJ heard testimony and found that despite the “certainly significant” hardship of

18   Petitioner being separated from his daughter, the evidence did not establish that it would be

19   “substantially beyond hardship that is ordinarily expected to result from an alien’s deportation.”



            3
              Ms. Mehija is referred to, and her name is spelled, several different ways in the record.
     For example, on Leslie’s birth certificate, her name appears as “Blanca Rubia Hernandez”; on her
     federal and state tax returns, her name appears as “Blanca Mejia”; in the IJ’s oral decision and
     the hearing transcript, she appears as “Blanca Mehija” and “Blanca Hernandez Mehija”; and in
     Respondent’s brief, she appears as “Blanca Hernandez Mejia.” In order to be consistent with the
     IJ’s oral decision, this Court will refer to her as Blanca Mehija.

                                                      4
 1   The IJ did not mention Ms. Mehija’s TPS status in the “Analysis and Findings” section of the

 2   oral decision, stating that if petitioner were removed to Guatemala then “Leslie would remain

 3   with her mother in the United States.” In the “Statement of the Facts,” however, the IJ did note

 4   Ms. Mehija’s TPS status, and also mentioned that Petitioner “provided some background

 5   materials regarding human rights in Guatemala and El Salvador,” including a report on El

 6   Salvador noting “serious problems with gangs and crime; an increase in women murdered.”

 7          The BIA ruled that because the burden of proof is on the alien to show eligibility for

 8   relief, see 8 U.S.C. § 1229a(c)(4)(A), the IJ did not err in focusing his decision on facts relating

 9   to the daughter remaining in the United States. Petitioner, according to the BIA, “should have

10   affirmatively raised his concern [about TPS status] during the hearing, and submitted supporting

11   evidence.” Moreover, the BIA stated, Petitioner “should have affirmatively presented evidence

12   about . . . conditions in El Salvador if his claim was that his daughter would end up living there

13   because of his removal.”

14          “[W]here, as here, some facts important to the subtle determination of ‘exceptional and

15   extremely unusual hardship’ have been totally overlooked and others have been seriously

16   mischaracterized, we conclude that an error of law has occurred.” Mendez, 566 F.3d at 323. The

17   BIA stated that Petitioner should have presented evidence about country conditions in El

18   Salvador, but the record reflects that Petitioner did present such evidence. Moreover, the BIA

19   nowhere mentions that Petitioner raised his TPS argument, albeit imprecisely, in his brief to the

20   IJ.

21          Therefore the BIA committed an error of law that we have jurisdiction to review. On

22   review, we vacate the decision of the BIA and remand for further proceedings. Having vacated

23   and remanded the original decision of the BIA, we also vacate that portion of the BIA’s order


                                                       5
 1   denying the Petitioner’s motion to re-open insofar as the BIA’s order states that Petitioner “has

 2   not demonstrated prima facie eligibility for cancellation of removal.” Accordingly, we also

 3   remand the motion to re-open for further consideration.

 4           For the foregoing reasons, the petition for review of the BIA order denying Petitioner’s

 5   appeal (Docket No. 08-0360-ag(L)), is hereby GRANTED, both orders of the BIA are

 6   VACATED, and the case is REMANDED to the BIA for further proceedings consistent with

 7   this order.

 8

 9                                                        FOR THE COURT:
10                                                        Catherine O’Hagan Wolfe, Clerk
11
12
13
14




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