Edgar Bamaca-Perez v. Loretta Lynch
670 F. App'x 892
| 6th Cir. | 2016Background
- Bamaca-Perez petitions for review of a BIA dismissal of his cancellation of removal appeal.
- He is a Guatemalan national who entered the U.S. without inspection in 1999 and conceded removability in removal proceedings begun in 2011.
- Bamaca-Perez sought cancellation of removal under INA § 240A(b), alleging removal would cause exceptional and extremely unusual hardship to his U.S. citizen children.
- The IJ denied the application, finding hardship existed but not to the required exceptional/extremely unusual level.
- The BIA dismissed Bamaca-Perez’s appeal and rejected his argument that the IJ should consider the ‘best interests of the children’ as an explicit factor in the hardship analysis.
- The Court reviews legal questions de novo and rejects the CRC best-interests argument, applying the statutory standard in 8 U.S.C. § 1229b(b)(1)(D).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must the best interests of the child be an explicit factor? | Bamaca-Perez argues CRC best interests apply when the child is a qualifying relative. | BIA/conceding authorities say the statutory standard governs; CRC does not control. | CRC best interests do not apply; statutory standard governs. |
| Is CRC customary international law binding in INA § 240A(b)(1)(D) analysis? | CRC customary law should be considered if not overridden by statute. | CP and statutory framework control; customary law not applicable here. | Customary international law does not alter the statutory standard. |
| Did the BIA properly apply the hardship standard under INA § 240A(b)(1)(D)? | IJ’s analysis should explicitly incorporate best interests as a factor. | BIA properly conducted the hardship analysis under the correct statutory standard. | BIA properly applied the applicable hardship standard. |
Key Cases Cited
- Oliva v. U.S. Dep’t of Justice, 433 F.3d 229 (2d Cir. 2005) (statutory standard controls when CRC not applicable)
- Flores-Nova v. Attorney Gen. of U.S., 652 F.3d 488 (3d Cir. 2011) (CRC considerations discussed in asylum context)
- Payne-Barahona v. Gonzales, 474 F.3d 1 (1st Cir. 2007) (distinguishes statutory standard for hardship)
- Cabrera-Alvarez v. Gonzales, 423 F.3d 1006 (9th Cir. 2005) (best interests framed as related to hardship inquiry)
- Ettienne v. Holder, 659 F.3d 513 (6th Cir. 2011) (review standards for legal questions in INA cases)
- Khalili v. Holder, 557 F.3d 429 (6th Cir. 2009) (deference to BIA interpretations; legal questions review)
- Aburto-Rocha v. Mukasey, 535 F.3d 500 (6th Cir. 2008) (administrative rulings and hardship analysis context)
- Roper v. Simmons, 543 U.S. 551 (2005) (CRC-related reference on international law status)
- The Paquete Habana, 175 U.S. 677 (1900) (customary international law source; no controlling act here)