U.S.

Department of Justice

Executive Office for bnmigrati on Review

Board ofImmigration Appeals Office ofthe Clerk

S/07 Leesb"'i Piu, Sutle 1000 Foils C'llurrll. Vlrgtnfa 2204 I

STEVES. CHANG, ESQUIRE Law Offices of Chang & Lim 3600 Wllshlre Blvd. #832 Los Angeles, CA 90010

DHSllCE Office of Chief Counsel 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

LOS

Name: MARTINEZ JUAREZ, EPIFANIO

A095194-852

Data of this notice: 3/2112011 Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Dollll8 Carr
ChiefCJerk

Enclosure

Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John King, Carol

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Epifanio Martinez Juarez, A095 194 852 (BIA March 21, 2011)

U.S. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 22041 File: Jn re: A095 J 94 852 - Los Angeles, CA EPIFANIO MARTINEZ nJA.REZ

Docision of the Board of Immigration Appeals

Date:

MAR 21 2011

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Ste ve S. Chang, Esquire Lee P. Crystal Assistant Chief Counsel

APPLlCATION:

Cancellation of removal

The respondent, a native and citizen of Mex ico, has appealed from the Immigration Judge's decision dated April 16, 2009. The appeal wiJl be sust.ained and the record will be returned to the Immigration Court for ftuther p roceedings. This matter was previously before the Board on February 20, 2008, when we reversed the June 14, 2006, decision of an Immigration J ud ge that granted the respondent's application for cancellation of removal based upon a detenninatfon that the respon dent had demonstrated that his removal would result in exceptional and extremely unusual hardship to his United States citizen son. See section 240A(b){D) of the Immigration and Nationality Act, 8 U . S .C . 1229b(b){D). We

backgroun d security checks, but that an Immigration Judge may consider admtional evidence regarding ne w or previously considered relief if it meets the requirements for reopening of the proceedings), found that the court was barred from considering the new evidence because the case was remanded solely for the purpose of adjudicating the respondent' s application for voluntary departure.

returned the case to the Immigration Court for consideration of the respondent's applicatio n for voluntary departure. On remand, the respondent attempted to submit new evidence of hardship to his qualifying relative in support of bis application for cancellation. The Immigration Judge, citing our decision in Maller ofM-D-, 24 l&N Dec. 138 (BIA 2007) (holding that the Immigration Court m ay not reconsider a decision of the Board when it reacquires jurisdiction over a case remanded for

Subsequent to the Immigrati on Judge's decision in this case, the Unit_ed States Court of Appeals for the Ninth Circuit, wherein this matter arises, issued its precedent decision in Fernandes v. Holder, 619 F.3d 1069, 1074 (9th Cir. 2010), clarifying that an Immigration Judge'sjurismction on remand from th e Board is limited only when the BIA expressly retains jurisdiction and qualifies or

Cite as: Epifanio Martinez Juarez, A095 194 852 (BIA March 21, 2011)

A095

194 852

limits the scope of the remand to a specific purpose. The Board did not expressly retain jurisdiction departure. Therefore, the Immigration Judge should have considered whether the respondent's new evidence of hardship met the requirements for reopening proceedings. We note that the Department of Homeland Security argues on appeal that the issue of the respondent's eligibility for cancellation is moot because the respondent's son is now over 21 years old and may no longer be considered a qualifying relative. Pursuant to the rationale of the Board's precedent decision in or expressly limit the remand solely to consideration of the respondent's application for v oluntary

Matter ofPorti/lo-GUlierrez, 25 I&N Dec. 148 (BIA 2009) (holding that a

stepchild who meets the definition of a "child" under section 10l(b)(l)(B) of the Act at the time of the proceedings is a qualifying relative for purposes of establishing exceptional and extremely unusual hardship for cancellation of removal Wlder section 240A(b)(l)(D)). the respondent's eligibility should be detennined based upon his son's status as a qualifying relative when this matter
was

before the Inunigration Court. See

(holding that a stepparent who qualified as a "parent" under section unusual hardship for cancellation).

also Matier of Morales, 25 I & N Dec. 186 (BIA 2010) 101(b)(2) of the Act at the time

ofthe proceedings was a qualifying relative for purposes of establishing exceptional and extremely
Accordingly, we will return the record to the Immigration Judge to consider the respondent 's new evidence, as ORDER:

well as any other applic ations for relief that the respondent may submit
The Immigration Judge's decision is hereby vacated.

on remand.

FURTHER ORDER: The record is returned to the Immigration Court for further proceedings consistent with the foregoing opinion

Cite as: Epifanio Martinez Juarez, A095 194 852 (BIA March 21, 2011)