27 I. & N. Dec. 692
BIA2019Background
- Respondent: Cuban national admitted as a refugee in 1989 who did not adjust status within one year; convicted in New Jersey (2011) of conspiracy to commit robbery, false imprisonment, and attempted bodily injury; sentenced to 9.5 years.
- DHS charged respondent as removable for an aggravated felony; respondent conceded removability and applied for a §209(c) waiver of inadmissibility to adjust status.
- Immigration Judge granted the §209(c) waiver and adjustment of status, and denied CAT deferral; DHS appealed the waiver grant.
- IJ found respondent a "violent or dangerous" individual under Matter of Jean and applied the heightened standard requiring "exceptional and extremely unusual hardship," concluding both respondent and his U.S. citizen son met that standard.
- BIA reviewed whether hardship may include the alien’s own hardship (as well as qualifying relatives’), evaluated the record on hardship and discretionary equities, and reviewed the IJ’s denial of CAT deferral.
- BIA reversed the waiver and adjustment of status (sustained DHS appeal), concluding respondent failed to show exceptional and extremely unusual hardship and that adverse criminal factors outweighed equities; BIA affirmed denial of CAT relief and ordered removal to Cuba.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether the §209(c) "exceptional and extremely unusual hardship" requirement for violent/dangerous individuals may consider hardship to the alien as well as qualifying relatives | Hardship to the respondent himself may satisfy the heightened standard | Only hardship to qualifying relatives should be considered (analogous to §§212(h)/240A(b)(1) statutes) | BIA: Alien’s hardship may be considered along with relatives’ hardship; Matter of Jean imposes no restriction to relatives only |
| Whether respondent met the heightened "exceptional and extremely unusual" hardship standard | Respondent & son would suffer exceptional and extremely unusual hardship if respondent removed (son has medical/behavioral needs; respondent lacks ties in Cuba; country conditions) | Hardship findings were erroneous and insufficient; respondent provided little financial support and limited family ties; conditions do not meet the high standard | BIA: Findings of exceptional hardship were not supported; respondent failed to meet the heightened Matter of Jean standard |
| Whether, even if hardship shown, discretionary grant of §209(c) waiver is warranted | Equities (rehabilitation efforts, family ties, refugee background) justify favorable discretion | Serious violent criminal history and escalation of offenses weigh heavily against relief | BIA: Adverse factors (violent aggravated felony, criminal history) outweigh equities; would deny relief in discretion even if hardship shown |
| Whether respondent established entitlement to deferral of removal under the Convention Against Torture | Country conditions and family history make it more likely than not he would be tortured if returned to Cuba | Chain of speculative events insufficient; respondent failed to show likelihood of torture | BIA: Affirmed IJ denial—respondent did not show more-likely-than-not risk of torture |
Key Cases Cited
- Mejia v. Gonzales, 499 F.3d 991 (9th Cir. 2007) (8 C.F.R. §1212.7(d) implements Matter of Jean principles in §212(h)(2) discretion)
- Rivera-Peraza v. Holder, 684 F.3d 906 (9th Cir. 2012) (regulation directs consideration of hardship to alien and relatives under Matter of Jean standard)
- Tejada v. Attorney Gen. of U.S., 513 F. App’x 190 (3d Cir. 2013) (exceptional and extremely unusual hardship analysis may apply to the respondent himself)
- Myrie v. Attorney Gen. U.S., 855 F.3d 509 (3d Cir. 2017) (IJ factual findings in CAT claims reviewed for clear error)
- Wang v. Ashcroft, 368 F.3d 347 (3d Cir. 2004) (State Department reports alone do not establish individualized likelihood of torture)