On Petition for Review from an Order of the Board of Immigration Appeals (Board No. A098-632-579) Immigration Judge: Honorable Eugene Pugliese.
The opinion of the court was delivered by: Fisher, Circuit Judge
Before: SMITH, FISHER and GREENBERG, Circuit Judges.
Blanca Barrales Pareja, a Mexican citizen and native, petitions for review of a final order of removal of the Board of Immigration Appeals ("BIA"). We will grant the petition in part, deny it in part, and dismiss it in part and remand this case to the BIA with instructions.
In March 1991, when she was thirteen years old, Pareja entered the United States without inspection to reunite with her parents, who had previously come to the United States from Mexico. In December 2001, Pareja gave birth to a daughter, Joanne, with Cesar Garcia. Joanne is a United States citizen and has never been to Mexico. In 2005, Pareja and Garcia's relationship ended. Garcia, who is not a United States citizen, provides child support for Joanne and sees her about twice a month. For the last several years, Pareja has worked for the Sheehy family in Colts Neck, New Jersey, performing childcare and housework.*fn1 Pareja and Joanne live with the Sheehys in their home. Joanne attends a local public school.
Pareja received a Notice to Appear in April 2006, charging that she was removable under 8 U.S.C. § 1182(a)(6)(A)(i).*fn2 Pareja conceded removability but applied for cancellation of removal under 8 U.S.C. § 1229b(b)(1). In September 2007, an Immigration Judge ("IJ") held a hearing at which Pareja spoke about her background and life in the United States and told the IJ that Joanne would accompany her if she were ordered to return to Mexico. The IJ also heard from Dr. James Kilroy, a clinical psychologist who testified on Pareja's behalf that Joanne is emotionally attached to her mother. Mrs. Sheehy also appeared on Pareja's behalf, testifying that Pareja is loyal and professional and that Joanne becomes anxious when her mother is not present.
After the hearing, the IJ denied Pareja's application in an oral decision, concluding that Pareja did not prove that her removal would result in "exceptional and extremely unusual hardship" to Joanne, the fourth requirement for establishing eligibility for cancellation of removal. See 8 U.S.C. § 1229b(b)(1)(D). Relying on the BIA's decision in Matter of Monreal, 23 I. & N. Dec. 56 (BIA 2001) (en banc), the IJ determined that Pareja's proffer -- consisting mainly of evidence of Mexico's inferior living conditions and lesser educational opportunities as well as Joanne's alleged separation anxiety when her mother is absent -- failed to demonstrate that the hardship to Joanne would be "substantially beyond that which would ordinarily be expected to result" from Pareja's removal. (App. 62 (quotation marks and citation omitted).) The IJ found Pareja's proffer similar to that of the petitioner in Matter of Andazola, 23 I. & N. Dec. 319 (B.I.A. 2002) (en banc), where the BIA denied cancellation of removal to a single Mexican mother of two children with United States citizenship. The IJ contrasted Pareja's case from Matter of Recinas, 23 I. & N. Dec. 467 (B.I.A. 2002) (en banc), where the BIA granted cancellation of removal to a single Mexican mother of six children, four of whom were United States citizens. On the basis of this case law, the IJ denied Pareja's application for cancellation of removal and granted the government's application for voluntary departure. The IJ further ordered Pareja to be removed if she failed to depart voluntarily within a time certain. Pareja appealed the IJ's decision to the BIA.
In October 2008, the BIA dismissed Pareja's appeal. The BIA found no fault with the IJ's factual findings and agreed that Pareja had not met her evidentiary burden of demonstrating "exceptional and extremely unusual hardship" to Joanne, though the BIA thought this "a sympathetic case." (App. 4.) In summarized form, the BIA determined that Joanne, Pareja's lone qualifying relative for hardship purposes under § 1229b(b)(1)(D), had no extraordinary emotional or educational needs; that Joanne's separation anxiety was not a relevant consideration given Pareja's testimony that Joanne would accompany her to Mexico in the event of removal; and that Pareja and Joanne, despite some potential difficulty, were financially able to return to Mexico and to establish themselves there. In a footnote, the BIA summarily declined to revisit its rulings in Matter of Recinas, Matter of Andazola, and Matter of Monreal, which Pareja had attacked as wrongly decided. The BIA also rejected Pareja's efforts to establish parallels between her case and Matter of Recinas and to distinguish her case from the BIA's "seminal interpretations," (App. 4 (quotation marks and citation omitted)), of the hardship standard articulated in Matter of Andazola and Matter of Monreal. Accordingly, the BIA permitted Pareja to depart voluntarily within sixty days from the date of its order. Failing her voluntary departure within that time frame, the BIA ordered that she be removed to Mexico.
Pareja has filed a timely petition for review of the BIA's decision. After the petition was filed, a panel of this Court granted Pareja's motion for a stay of voluntary departure and a stay of removal. The government thereafter filed a motion to dismiss the petition for lack of jurisdiction; that motion was referred to the merits panel. In its brief, the government reiterates its position that this Court lacks jurisdiction over the whole of Pareja's petition.
A. Legislative Background
Before addressing the government's jurisdictional challenge or the merits of any portion of Pareja's petition over which we have jurisdiction, it is useful at the outset to briefly review the historical backdrop of the legislation at issue here.
Under the Immigration and Nationality Act of 1952 ("INA"), an alien placed in deportation proceedings could previously seek relief from deportation by applying for what was called suspension of deportation. 8 U.S.C § 1254(a)(1) (1952). An alien could obtain such relief by showing, among other things, that her deportation "would result in exceptional and extremely unusual hardship to the alien or" certain qualifying relatives. Id. Congress amended § 1254(a)(1) in 1962 by replacing the "exceptional and extremely unusual hardship" language with "extreme hardship." 8 U.S.C § 1254(a)(1) (Supp. IV 1959-62) (repealed 1996).
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996). In IIRIRA, Congress, among other things, did away with "suspension of deportation," substituted it with a form of relief called "cancellation of removal," and changed the "extreme hardship" standard back to "exceptional and extremely unusual hardship." Aoun v. INS, 342 F.3d 503, 506 (6th Cir. 2003); Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1162 (9th Cir. 2002); Angel-Ramos v. Reno, 227 F.3d 942, 945 (7th Cir. 2000); Alvidres-Reyes v. Reno, 180 F.3d 199, 202 (5th Cir. 1999). Congress also limited the hardship inquiry to whether the alien could show hardship to a qualifying relative alone; hardship to the alien herself is no longer a relevant factor. 8 U.S.C. § 1229b(b)(1)(D); see Karageorgious v. Ashcroft, 374 F.3d 152, 154 n.4 (2d Cir. 2004); Hernandez-Mezquita, 293 F.3d at 1162; Alvidres-Reyes, 180 F.3d at 202.
Under the law as it now stands, then, an alien may obtain cancellation of removal if she prevails at both steps of what § 1229b(b)(1) in effect presents as a two-step process. See Romero-Torres v. Ashcroft, 327 F.3d 887, 889 (9th Cir. 2003). First, the alien shoulders the burden of showing that she is eligible for cancellation of removal. See, e.g., Okeke v. Gonzales, 407 F.3d 585, 588 & n.5 (3d Cir. 2005). An alien is eligible if she (A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [her] application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under . . . [8 U.S.C. § 1182(a)(2), 1227(a)(2), or 1227(a)(3)] . . .; and (D) establishes ...