11-4978-ag
Barralaga v. Holder

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 28th day of May, two thousand thirteen.

PRESENT: CHESTER J. STRAUB,
         REENA RAGGI,
         CHRISTOPHER F. DRONEY,
                    Circuit Judges.

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ROBINSON J. BARRALAGA, a/k/a Javier Rodriguez,
a/k/a Robinson Rodriguez, a/k/a Javier Barralaga,
                          Petitioner,
                   v.                                                                   No. 11-4978-ag

ERIC H. HOLDER, JR., United States Attorney General,
                       Respondent.
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FOR APPELLANT:                                             Genet Getachew, Esq., Brooklyn, New York.

APPEARING FOR APPELLEE:                                    SUNAH LEE (Stuart F. Delery, Cindy S. Ferrier,
                                                           on the brief), Office of Immigration Litigation,
                                                           U.S. Department of Justice, Washington, D.C.

          Petition for review of a Board of Immigration Appeals’ order denying an application

for cancellation of removal.
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the petition for review of the order issued on November 8, 2011, is

GRANTED, the order is VACATED, and the case is REMANDED.

       Robinson J. Barralaga, a native and citizen of Honduras, petitions for review of a

Board of Immigration Appeals (“BIA”) order affirming the order of an immigration judge

(“IJ”) denying his application for cancellation of removal. See In re Robinson J. Barralaga,

No. A094 322 828 (B.I.A. Nov. 8, 2011), aff’g No. A094 322 828 (Immig. Ct. N.Y.C. July

28, 2010). We assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to grant review, vacate the

challenged order, and remand the case for further proceedings.

       Barralaga argues that the factfinding underlying the BIA’s determination that his

removal would not cause any of his three children “exceptional and extremely unusual

hardship,” 8 U.S.C. § 1229b(b)(1)(D), was erroneous as a matter of law. That error, he

contends, confers jurisdiction on this court to review his claim and warrants vacatur and

remand. We agree.

       We lack jurisdiction to review a BIA determination that removal would not cause

exceptional and extremely unusual hardship, “except in those rare cases where the BIA

decision on whether this kind of hardship exists is made without rational justification or

based on an erroneous legal standard or rests on fact-finding which is flawed by an error of

law.” Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009) (citations and internal quotation

marks omitted); accord Rosario v. Holder, 627 F.3d 58, 62–63 (2d Cir. 2010). Factfinding

                                             2
is flawed by an error of law where the IJ or BIA “totally overlook[s]” or “seriously

mischaracteriz[es]” facts that are “important to the subtle determination of exceptional and

extremely unusual hardship.” Mendez v. Holder, 566 F.3d at 323 (internal quotation marks

omitted). To invoke our jurisdiction, a petitioner need only raise a colorable claim of legal

error. See Argueta v. Holder, 617 F.3d 109, 112 (2d Cir. 2010); Barco-Sandoval v.

Gonzales, 516 F.3d 35, 40 (2d Cir. 2007).

       As the government acknowledges, in assessing hardship here, the IJ confused

“Junior,” Barralaga’s oldest son, who does not live with Barralaga and presents no medical

concerns, with “Robinson, Jr.,” Barralaga’s youngest son, who does live with Barralaga and

has various medical issues, such as reactive airway disease, eczema, milk allergy, and speech

delay. The IJ erroneously described Robinson, Jr. as Barralaga’s older son and found that

he has medical problems that do not appear to be “life-threatening,” but which are not

“trivial.” J.A. 23. The IJ concluded, however, that because Robinson, Jr. “lives with his

mother and there is no indication that he would return to Honduras” with Barralaga, “he

could continue to receive whatever treatment is necessary for these problems here in the

United States” if Barralaga were deported. Id. The IJ went on to state that Barralaga has a

“third child, who is still an infant,” and “[t]here does not seem to be any issue of any medical

problems for this child.” Id. In fact, not only was the ailing Robinson, Jr. the infant son with

whom Barralaga resides, but also Barralaga testified before the IJ that it would be “very

difficult” to decide whether to take this child to Honduras or leave him in the United States



                                               3
if he were deported.1 Hr’g Tr. 81:14–17, J.A. 145. Nevertheless, based on the mistakes of

fact detailed above, the IJ concluded that Barralaga had not demonstrated that his removal

would cause the requisite hardship to any of his children. Moreover, in affirming that

determination, the BIA relied upon the IJ’s erroneous factual findings, stating that, although

Barralaga’s “son has some respiratory problems,” he “lives with his mother, would not return

to Honduras with [Barralaga], and could continue to receive necessary treatment in the

United States.” J.A. 3.2

       On this record, we conclude that Barralaga has raised a colorable argument that, in

conflating the identities of the children at issue, the IJ and BIA “seriously mischaracterized”

facts important to the hardship determination under § 1229b(b)(1)(D), thereby invoking our

jurisdiction. Mendez v. Holder, 566 F.3d at 323. Further, we are not “confident” as to what

hardship determination the agency would reach on a correct understanding of the facts. Id.

Thus, vacatur and remand is appropriate in this case. See id.

       We decline to address on this appeal the BIA’s alternative basis for denying

Barralaga’s application for cancellation of removal, i.e. its determination that he did not merit

a favorable exercise of discretion. See Rodriguez v. Gonzales, 451 F.3d 60, 62 (2d Cir.



       1
         On his application for cancellation of removal, Barralaga indicated that, if he were
deported, his “[k]ids would remain with their mother.” J.A. 645. That application, however,
refers only to his eldest two children and was completed before Robinson, Jr. was born.
       2
        Insofar as the government argues that Barralaga failed to exhaust his hardship claim
before the BIA, see 8 U.S.C. § 1252(d)(1), that argument lacks merit. Barralaga’s notice of
appeal to the BIA clearly challenges the IJ’s decision on this basis.

                                               4
2006) (stating that, if alien proves he meets statutory-eligibility requirements, “the Attorney

General in his discretion decides whether to grant or deny relief”). Because we cannot

confidently conclude that the agency’s erroneous factfinding did not also infect its

discretionary determination, it is appropriate to have the BIA reconsider that determination

in the first instance. See Gonzalez v. Thomas, 547 U.S. 183, 186 (2006) (“[T]he proper

course, except in rare circumstances, is to remand to the agency for additional investigation

or explanation.” (internal quotation marks omitted)).3

       Accordingly, Barralaga’s petition for review is GRANTED, the BIA’s order is

VACATED, and the case is REMANDED for further proceedings.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, Clerk of Court




       3
          We need not decide in this case whether we ever have jurisdiction to review the
discretionary denial of a statutorily-eligible alien’s application for cancellation of removal.
See Argueta v. Holder, 617 F.3d at 112 (“Review of that discretionary determination is
statutorily barred, except to the extent [the] petition raises a constitutional claim or question
of law.”); see also Rosario v. Holder, 627 F.3d at 62 (“[W]hen the BIA explicitly finds an
alien to be eligible for discretionary relief but then refuses to grant relief as an exercise of its
discretion, such a decision is not reviewable.”).

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