Cite as 25 I&N Dec. 829 (BIA 2012) Interim Decision #3756
829
Matter of Valentin ISIDRO-Zamorano, Respondent
Decided June 15, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An applicant for cancellation of removal whose son or daughter met the definition
of a “child” when the application was filed but turned 21 before the Immigration Judge
adjudicated the application on the merits no longer has a qualifying relative under section
240A(b)(1)(D) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)(D) (2006).
Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006), clarified.
FOR RESPONDENT: Carol Carvajal, Esquire, San Diego, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Kerri Calcador, Senior
Attorney
BEFORE: Board Panel: GRANT and MULLANE, Board Members; LIEBOWITZ,
Temporary Board Member.
LIEBOWITZ, Temporary Board Member:
This case was last before us on August 30, 2007, when we dismissed the
respondent’s appeal from the Immigration Judge’s July 12, 2006, decision
denying the respondent’s application for cancellation of removal under section
240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(1)
(2006), on the basis that he did not have a qualifying relative because his son,
who was over 21 years of age, was not a “child.” On February 18, 2010, the
United States Court of Appeals for the Ninth Circuit granted the respondent’s
petition for review and remanded the case for us to determine whether
Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006), “should be extended
to circumstances like those in this case.” Isidro-Zamorano v. Holder, 365
F. App’x 846, 847 (9th Cir. 2010). Upon consideration of this issue, we again
conclude that the respondent is ineligible for cancellation of removal and will
dismiss his appeal.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Mexico who entered the
United States without inspection on May 1, 1994. His son, who is aCite as 25 I&N Dec. 829 (BIA 2012) Interim Decision #3756
830
United States citizen, was born on January 29, 1985. At the time the
respondent filed his application for cancellation of removal in 2005, his son
was under the age of 21. However, the respondent’s son turned 21 in January
2006, before the application was adjudicated. The Immigration Judge found
that the son could no longer be a qualifying relative for purposes
of establishing the respondent’s eligibility for cancellation of removal and
denied the application.
II. ANALYSIS
To be eligible for cancellation of removal, an applicant must establish,
among other things, “that removal would result in exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent residence.” Section
240A(b)(1)(D) of the Act (emphasis added). A “child” is “an unmarried
person under twenty-one years of age.” Section 101(b)(1) of the Act, 8 U.S.C.
§ 1101(b)(1) (2006); Partap v. Holder, 603 F.3d 1173, 1174 (9th Cir. 2010);
Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1145 (9th Cir. 2002) (applying
the definition of the term “child” under section 101(b)(1) of the Act to the
hardship requirement in section 240A(b)(1)(D)).
The issue in Matter of Bautista Gomez, 23 I&N Dec. 893, was whether
an applicant for cancellation of removal under section 240A(b) must establish
eligibility for relief at the time of the service of the notice to appear. The
respondent was found ineligible for cancellation of removal because she did
not have a qualifying relative. She subsequently filed a motion to reopen
claiming that she had acquired qualifying relatives because her parents
had been granted cancellation of removal in the same proceedings. The
Immigration Judge denied the motion because the respondent did not have the
qualifying relatives at the time she was served with the notice to appear,
citing the regulation that is currently at 8 C.F.R. § 1003.23(b)(3) (2012). The
regulation provides that a motion to reopen for consideration or further
consideration of an application for cancellation of removal “[p]ursuant
to section 240A(d)(1) . . . may be granted only if the alien demonstrates that
he or she was statutorily eligible for such relief prior to the service of a notice
to appear.”
Because the regulation made reference to section 240A(d)(1) of the Act,
we found that its restriction only applied to an applicant’s continuous physical
presence requirement. We therefore concluded that if the respondent had the
requisite continuous physical presence at the time she was served with the
notice to appear, she could establish eligibility for cancellation of removal
based on the acquisition of qualifying relatives. We explained that the issues
of good moral character and qualifying relatives are properly considered at theCite as 25 I&N Dec. 829 (BIA 2012) Interim Decision #3756
1 We note that once the child was born, the respondent sought to reopen the proceedings.
The motion was denied, however, because the respondent did not allege any facts supporting
a claim of exceptional and extremely unusual hardship to the child. See Partap v. Holder,
603 F.3d at 1175.
2 Although this respondent would benefit from an interpretation of section 240A(b)(1) that
fixed or locked in eligibility at the time the application was filed, the respondent
(continued…)
831
time an application for cancellation of removal is decided. Matter of Bautista
Gomez, 23 I&N Dec. at 894-95. Otherwise, factors arising subsequent to the
filing of an application that may be favorable to the respondent’s claim, such
as the birth of a United States citizen child, marriage to a lawful permanent
resident or citizen, or a serious accident or illness involving a qualifying
relative, could not be considered in determining the existence of exceptional
and extremely unusual hardship.
In this case the respondent’s son qualified as a “child” when the
cancellation application was filed, but he was over 21 years of age at the time
the Immigration Judge adjudicated the application on the merits. It is well
established that an application for relief from removal is a “continuing”
application. See Matter of Garcia, 24 I&N Dec. 179, 181 (BIA 2007) (noting
that an applicant for suspension of deportation could accrue continuous
physical presence until a final administrative decision was issued) (citing
Matter of Castro, 19 I&N Dec. 692 (BIA 1988)); Matter of Ortega-Cabrera,
23 I&N Dec. 793 (BIA 2005) (holding that because an application for
cancellation of removal is a continuing one for purposes of good moral
character, the period during which good moral character must be established
ends with the entry of a final administrative order). Consistent with this
principle, we conclude that the respondent did not have a qualifying relative
when the Immigration Judge adjudicated the application and therefore could
not establish eligibility for relief. See Matter of Morales, 25 I&N Dec. 186,
187 (BIA 2010) (considering the status of a qualifying relative at the time
of the proceedings); Matter of Portillo-Gutierrez, 25 I&N Dec. 148, 149 (BIA
2009) (same); cf. Partap v. Holder, 603 F.3d at 1174 (finding that a child who
was not born when the Immigration Judge considered a cancellation
application was not a “child” within the meaning of the statute).1
We find no basis in law to conclude that an applicant in the respondent’s
circumstances, who loses his qualifying relationship before his application
is even adjudicated on its merits by the Immigration Judge, nonetheless retains
his eligibility for cancellation of removal. In the respondent’s case, this
undoubtedly results in a difficult situation because he has lost his eligibility for
relief. However, our ruling is consistent with the principle articulated
in Matter of Bautista Gomez and related cases.2Cite as 25 I&N Dec. 829 (BIA 2012) Interim Decision #3756
(…continued)
in Matter of Bautista Gomez, who benefitted from our construction of section 240A(b)(1)
as a continuing application, would not have prevailed if that were the rule. We must,
of course, interpret the provision consistently. See Clark v. Martinez, 543 U.S. 371 (2005).
3 The record indicates that the respondent’s unlawful presence was discovered during
a review of employment eligibility verification forms at his workplace.
832
We note that contrary to the respondent’s arguments on appeal, there has
been no undue or unfair delay in the course of these proceedings. The
respondent illegally entered in 1994 without inspection or parole, and his
notice to appear was served in May 2005, approximately 1 year after the
respondent acquired the necessary 10 years of continuous physical presence.3
The Immigration Judge issued his decision approximately 1 year later, in July
2006. The respondent has not alleged any improper delay on the part of the
Immigration Judge, and a period of just over a year from service of the notice
to appear to a determination on the merits is not an unreasonable or even
unusual amount of time for the conclusion of removal proceedings.
To the extent that the respondent challenges the fairness of these
proceedings, we conclude that he was provided a full and fair opportunity
to present his claim for relief. See Ibarra-Flores v. Gonzales, 439 F.3d 614,
620-21 (9th Cir. 2006). To the extent that he raises constitutional challenges
to any statutes or regulations, we have no authority to rule on such issues.
See Matter of Yanez, 23 I&N Dec. 390, 401 (BIA 2002); Matter of Finnair
Flight AY103, 23 I&N Dec. 140, 147 (BIA 2001); Matter of C-, 20 I&N Dec.
529, 532 (BIA 1992).
We are also not convinced that when Congress enacted the Child Status
Protection Act, Pub. L. No. 107-208, 116 Stat. 927 (2002) (“CSPA”), its intent
was to allow an alien whose qualifying relative had turned 21 to retain
eligibility for cancellation of removal. As noted above, the term “child” refers
to an unmarried person under 21 years of age. See section 101(b)(1) of the
Act. The CSPA preserves the “child status” for individuals who qualified
as a “child” at the time a visa petition or application for permanent resident
or derivative asylum status was filed on their behalf, but who turned 21 before
a final adjudication was made. See Padash v. INS, 358 F.3d 1161, 1167 (9th
Cir. 2004); Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012); Matter
of A-Y-M-, 25 I&N Dec. 791 (BIA 2012); Matter of Avila-Perez, 24 I&N
Dec. 78 (BIA 2007). However, the provisions of the CSPA are not applicable
to the respondent’s application for cancellation of removal under section
240A(b) of the Act.Cite as 25 I&N Dec. 829 (BIA 2012) Interim Decision #3756
4 We also note that the CSPA was intended to protect children from losing eligibility for
immigration benefits by “aging out” on account of administrative delays. See Matter
of Avila-Perez, 24 I&N Dec. at 83-84. However, the respondent has been an adult
throughout these proceedings, and the age of his son is only relevant to his own ability
to establish eligibility for relief.
833
The CSPA explicitly refers to certain forms of relief and to particular
sections of the Act. See, e.g., sections 201(b)(2)(A)(i), 203(a)(2)(A), (d),
207(c)(2), 208(b)(3) of the Act, 8 U.S.C. §§ 1151(b)(2)(A)(i), 1153(a)(2)(A),
(d), 1157(c)(2), 1158(b)(3) (2006). It does not, however, make any reference
to cancellation of removal. “Where Congress includes particular language
in one section of a statute but omits it in another section of the same statute,
it is generally presumed that Congress acts intentionally in the inclusion
or exclusion.” Matter of Avila-Perez, 24 I&N Dec. at 82 (citing INS
v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987)). We therefore conclude that
the plain language of the CSPA indicates that Congress intended for it to apply
only to those sections of the Act that are specifically mentioned.4
See also
Midi v. Holder, 566 F.3d 132 (4th Cir. 2009). We further find no other
statutory or regulatory language that supports the result advocated by the
respondent in this case. Accordingly, the respondent’s appeal will
be dismissed.
The Immigration Judge granted the respondent voluntarydeparture, and we
reinstated that form of relief. Because it is not clear whether the respondent
still seeks voluntary departure, we will remand the record for the Immigration
Judge to consider this issue.
ORDER: The appeal is dismissed.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.