Hernandez-Perez v. Whitaker, No. 18-3137 (6th Cir. 2018)Annotate this Case
Hernandez-Perez, a Mexican citizen, has lived in the U.S. since 2000. His daughter, L., is a 17-year-old U.S. citizen. Hernandez-Perez has some criminal history, mostly “misdemeanor traffic offenses” but has maintained steady employment despite a handicap. In 2011, Hernandez-Perez was placed in removal proceedings and sought cancellation of removal under 8 U.S.C. 1229b(b)(1)(D), arguing that, if he were removed, L. would face “permanent family separation.” After that application was denied, Hernandez-Perez, alleged his family circumstances changed because he learned that an eight-year-old U.S. citizen, A.W., whose mother is not his wife, might be his son. A.W.’s mother was incarcerated and his grandfather, who had custody, was seriously ill. Hernandez-Perez had a DNA test performed, which confirmed the relationship. He filed a motion to reopen based on hardship to A.W. The BIA denied the motion because Hernandez-Perez had not established that the new evidence was previously unavailable, and the evidence did not establish prima facie eligibility for cancellation of removal. The Sixth Circuit granted a petition for review and remanded, first holding that it had jurisdiction because the motion “raised a new hardship ground not decided in the original decision.” Because the BIA must accept as true Hernandez-Perez’s allegations, there is no reasonable basis to conclude that the genetic evidence could have been obtained in 2015. The BIA erred in determining that the newly submitted evidence was previously available and did not consider all of the facts.