Laura Arteaga-De Alvarez v. Eric H. Holder Jr.
2012 U.S. App. LEXIS 26354
9th Cir.2012Background
- Arteaga, an undocumented Mexican national, married to a lawful permanent resident who had cancellation of removal in 2003.
- They have three US-citizen children; Arteaga sought cancellation of removal in 2005, denied in 2007 by IJ for lack of hardship.
- BIA affirmed, relying in part on Arteaga’s husband’s pending petition and availability of alternative immigration to undercut hardship.
- IJ noted the husband’s visa petition or similar path and the child with speech therapy as relevant factors.
- Arteaga appealed; BIA dismissed, holding hardship did not reach exceptional and extremely unusual level, and referenced alternative means.
- On review, the court vacates and remands Arteaga’s second claim about the legal standard; dismisses the due process claim for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process claim jurisdiction | Arteaga argues BIA/IJ denial violated due process by relying on prior husband’s relief. | Defendant contends court lacks jurisdiction to review such due-process-like disagreements with hardship determinations. | No jurisdiction for due process claim; dismissed. |
| Legal standard: alternative means undercuts hardship | Arteaga contends BIA illegally treated alternative immigration means as categorically undercutting hardship. | Arteaga argues BIA properly considered alternative means as a factor; government contends it supported by law. | BIA erred by applying a categorical rule; remand for individualized analysis. |
Key Cases Cited
- Mendez-Castro v. Mukasey, 552 F.3d 975 (9th Cir. 2009) (hardship meriting review limited; cannot reweigh under IIRIRA)
- Cabrera-Alvarez v. Gonzales, 428 F.3d 1006 (9th Cir. 2005) (jurisdiction over legal questions in cancellation review)
- Figueroa v. Mukasey, 543 F.3d 487 (9th Cir. 2008) (jurisdiction to review legal interpretation of hardship standard)
- Pareja v. Attorney General of the United States, 615 F.3d 180 (3d Cir. 2010) (colorable legal questions; review of BIA legal standards)
- Gutierrez-Centeno v. INS, 99 F.3d 1529 (9th Cir. 1996) (assessment of alternative means in hardship analysis; near prior standard)
- Monreal-Aguinaga, 23 I. & N. Dec. 56 (BIA 2001) (foundation for considering factors; cautions against categorical rule)
- Reciñas, 23 I. & N. Dec. 467 (BIA 2002) (alternative means may affect hardship; not dispositive)
- Andazola-Rivas, 23 I. & N. Dec. 319 (BIA 2002) (alternative means not controlling; different context)