513 F. App'x 190
3d Cir.2013Background
- Tejada is a Salvadoran citizen who entered the U.S. without inspection in 1989 and became a lawful permanent resident in 2004.
- He has extensive U.S. family ties including a daughter who is a U.S. citizen and siblings with status in the U.S.; he provides financial and emotional support to his daughter and ex-wife.
- Tejada has a history of criminal activity: two arrests that did not lead to convictions, a 2006 DWI, and a 2007 second-degree eluding conviction for which he served seven months after a three-year sentence.
- While detained in 2011, Tejada was found inadmissible for a crime of moral turpitude based on the 2007 eluding conviction and sought cancellation of removal and a § 212(h) waiver.
- The IJ granted the § 212(h) waiver due to extreme hardship to Tejada’s daughter; the Government appealed and the BIA reversed, holding the eluding conviction a violent/dangerous crime and denying relief; the court granted the petition and remanded for fuller consideration of equities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA applied the correct standard of review | Tejada | GOVERNMENT | Yes, remanded for proper standard of review |
| Whether BIA adequately considered Tejada's positive equities | Tejada was not given full weight to equities | BIA considered equities but weighed them improperly | Remand to consider equities fully |
| Whether BIA permissibly considered 8 C.F.R. § 1212.7(d) as a basis for relief | Extraordinary circumstances may permit relief notwithstanding violent crime | § 1212.7(d) requires exceptional and extremely unusual hardship | Remand to assess extraordinary circumstances and hardship to Tejada and relatives |
| Whether the hardship analysis should extend to Tejada himself under § 1212.7(d) | Hardship to Tejada himself is relevant | Hardship analysis to relatives suffices | Remand to consider hardship to Tejada as well as relatives. |
Key Cases Cited
- Huang v. Att'y Gen., 620 F.3d 372 (3d Cir. 2010) (requires meaningful consideration of the record when BIA disagrees with IJ)
- Awolesi v. Ashcroft, 341 F.3d 227 (3d Cir. 2003) (limits on BIA’s explanation when reversing IJ)
- Yusupov v. Att'y Gen., 650 F.3d 968 (3d Cir. 2011) (BIA must defer to IJ factual conclusions unless clearly erroneous)
- Kaplun v. Att’y Gen., 602 F.3d 260 (3d Cir. 2010) (proper standard of review for BIA legal determinations)
- Rivera-Peraza v. Holder, 684 F.3d 906 (9th Cir. 2012) (hardship analysis may extend to immigrant under § 1212.7(d))
- Samuels v. Chertoff, 550 F.3d 252 (2d Cir. 2008) (BIA must consider extraordinary circumstances beyond hardship to relatives)