Arteaga-De Alvarez, et al v. Holder Jr., No. 08-70941 (9th Cir. 2012)
Annotate this CasePetitioner, an undocumented Mexican national, petitioned for review of the BIA's affirmance of the IJ's denial of her application for cancellation of removal. The court held that it did not have jurisdiction over petitioner's claim that her due process rights were violated by the fact that her husband was granted cancellation of removal four years earlier based on similar facts. The court vacated and remanded, however, on petitioner's claim that the BIA erred as a matter of law when it held that an applicant for cancellation of removal's ability to demonstrate hardship to his qualifying relatives was necessarily undercut by the possibility that the applicant could have alternative means to immigrate at some undefined point in the future.
Court Description: Immigration. The panel dismissed in part for lack of jurisdiction and vacated in part Laura Arteaga de Alvarez’s petition for review from the Board of Immigration Appeals’ decision denying her application for cancellation of removal. The panel dismissed for lack of jurisdiction Arteaga’s claim that the denial of cancellation deprived her of due process where a different Immigration Judge had four years earlier granted relief to her husband on similar facts. The panel vacated and remanded, however, on Arteaga’s claim that the BIA erred in relying on a categorical rule that the availability of alternative lawful means to immigrate necessarily undercuts an alien’s claim of hardship to a qualifying relative. Judge Silverman, concurring in part and dissenting in part, would dismiss the petition in full for lack of jurisdiction. Judge Silverman agreed that this court lacks jurisdiction over Arteaga’s due process claim. He disagreed, however, with the majority’s conclusion that the BIA erred in finding that Arteaga had an alternative means to adjust her status, and he would find that this court lacks jurisdiction to second-guess the IJ and BIA’s determination.
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