CA9 on Hardship, Jurisdiction: Arteaga-De Alvarez v. Holder

"Petitioner Laura Arteaga de Alvarez (“Arteaga”) is an undocumented Mexican national.  She is married to a legal permanent  resident,  who  obtained  that  status after being granted cancellation of removal in 2003, shortly before the couple married.  They have three children who are all United States citizens.  In 2005, after voluntarily turning herself in to immigration authorities, Arteaga applied for cancellation of removal.  Her application was denied in 2007 by an immigration judge who determined that she had not demonstrated the requisite exceptional and extremely unusual hardship to a qualifying relative. The BIA affirmed, and included in its reasoning a statement that the fact that Arteaga had alternative means to immigrate, i.e. a spousal petition filed by her husband, necessarily undercut her ability to demonstrate that her children would suffer exceptional and extremely unusual hardship if she were to be removed from the United States.  We hold that we do not have jurisdiction over Arteaga’s claim that her due process rights were violated by the fact that her husband was granted cancellation of removal four years earlier based on similar facts.  We vacate and remand, however, on Arteaga’s second claim that the BIA erred as a matter of law when it held that an applicant for cancellation of removal’s ability to demonstrate hardship to his qualifying relatives is necessarily undercut by the possibility that the applicant may have alternative means to immigrate at some undefined point in the future." - Arteaga-De Alvarez v. Holder, Dec. 26, 2012.  [Hats off to Joseph Mbacho!]