ISIDRO
25 I. & N. Dec. 829
| BIA | 2012Background
- Isidro-Zamorano, a Mexican national, entered the United States without inspection in 1994.
- His son, a United States citizen, was born in 1985 and was under 21 when the cancellation application was filed in 2005.
- The son turned 21 in January 2006, before the IJ adjudicated the merits of the cancellation application.
- The IJ denied relief because the respondent lacked a qualifying relative at the time of adjudication.
- BIA previously decided in Bautista Gomez that eligibility must be considered in a manner that can extend to subsequent events, influencing eligibility rules.
- The Ninth Circuit remanded to determine whether Bautista Gomez should be extended to cases like this, considering continuous presence and timing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bautista Gomez extends to post-filing events for eligibility | Isidro-Zamorano argues Bautista Gomez should apply to acquire qualifying relatives after filing. | The government contends Bautista Gomez does not extend to this scenario; CSPA does not apply to cancellation. | No extension; Bautista Gomez does not render him eligible. |
| Whether respondent had a qualifying relative at the merits adjudication | Respondent asserts continuous presence could sustain eligibility due to later events. | DHS argues no qualifying relative existed at the merits stage when adjudicated. | No qualifying relative at adjudication; relief denied. |
| Effect of CSPA on cancellation of removal eligibility | Respondent suggests CSPA preserves child status despite aging out. | CSPA does not apply to cancellation of removal under § 240A(b). | CSPA not applicable; dismissal of appeal affirmed. |
| Procedural fairness and delay | Respondent alleges delay prejudiced his case. | Record shows no undue delay; time to decide was reasonable. | No undue delay; proceedings fair. |
Key Cases Cited
- Matter of Bautista Gomez, 23 I&N Dec. 893 (BIA 2006) (extension of eligibility in continuous-application context)
- Partap v. Holder, 603 F.3d 1173 (9th Cir. 2010) (child term applied to hardship analysis; timing matters)
- Montero-Martinez v. Ashcroft, 277 F.3d 1137 (9th Cir. 2002) (definition of ‘child’ in hardship context)
- Matter of Garcia, 24 I&N Dec. 179 (BIA 2007) (continuing application concept for eligibility timing)
- Matter of Morales, 25 I&N Dec. 186 (BIA 2010) (considering qualifying relative status at time of proceedings)
- Matter of Portillo-Gutierrez, 25 I&N Dec. 148 (BIA 2009) (same consideration of qualifying relative status at proceedings)
- Padash v. INS, 358 F.3d 1161 (9th Cir. 2004) (CSPA preservation framework for child status)
- Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007) (CSPA scope and limitations)
- Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012) (CSPA and related relief considerations)