Hernandez v. Holder
736 F.3d 234
2d Cir.2013Background
- Hernandez seeks review of two BIA decisions: dismissal of his cancellation of removal appeal and denial of his motion to reopen.
- The IJ denied cancellation of removal for lack of ten years’ continuous physical presence and hardship; the BIA affirmed/dismissed the reopening motion on similar grounds.
- The Board later remanded and Hernandez contends the IJ’s absence of substantial evidence on continuous presence should have been reconsidered upon reopening.
- Hernandez testified he arrived July 1996 and has remained in the United States since; there was no adverse credibility finding.
- Evidence included Hernandez’s oldest child’s birth certificate showing paternity in 1998 and thus presence by mid-1997, plus Connecticut address records and family ties.
- The panel agreed the IJ’s ten-year presence finding lacked substantial support and remanded for further proceedings, allowing new hardship evidence upon reopening.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board erred in denying reopening. | Hernandez argues the Board fell into error by relying on the prior, unsupported continuous presence finding. | Hernandez's burden for reopening was not met given lack of new evidence of continuous presence. | Remand for reconsideration; Board erred by relying on the prior unsupported finding. |
| Whether Hernandez proved ten years of continuous physical presence. | Evidence shows presence since July 1996, supported by birth certificate timing and stays; credibility presumed. | Initial IJ/Board found insufficient continuous presence; their determination stands absent new contrary evidence. | Record supports continuous presence from July 1996; remand for further proceedings. |
| Whether the hardship determination is reviewable on appeal. | Hardship to qualifying relatives was part of the basis for denial and should be reviewable. | Hardship findings are discretionary and largely unreviewable on appeal. | Hardship conclusions are not reviewable; remand focused on the presence issue. |
Key Cases Cited
- Hongsheng Leng v. Mukasey, 528 F.3d 135 (2d Cir. 2008) (review standards for IJ and Board in unified determinations)
- In re Immigration Petitions for Review Pending in the U.S. Court of Appeals for the Second Circuit, 702 F.3d 160 (2d Cir. 2012) (procedural tolling and appellate review coordination among agencies)