Alberto Mendez-Garcia v. Loretta Lynch

Concurrence by Judge WATFORD

OPINION

Alberto Mendez-Garcia’s application for cancellation of removal - claimed that his removal would result in hardship to his son, who was a United States citizen under 21 years of age at the time of the application. See 8 U.S.C. § 1229b(b)(l)(D). Mario Rivera-Baltazar’s application for cancellation of removal made the same claim with respect to his son, who was likewise a citizen who had not yet turned 21. 1 While these applications were pending, the petitioners’ sons turned 21 and no longer met the statutory definition of “child,” see 8 U.S.C. § 1101 (b)(1). The Board of Immigration Appeals (BIA) held that because the petitioners’ sons were no longer children, the petitioners had failed to show that their removal would result in a hardship to a qualifying relative, and therefore they were ineligible for cancellation of removal. Mendez-Garcia and Rivera-Balta-zar petition for review of the BIA’s denial of them applications. We have jurisdiction under 8 U.S.C. § 1252 , and now deny their petitions for review.

I

We begin by describing the legal background. The Immigration and Nationality Act (INA) gives the Attorney General discretion to cancel…

concurring:

I join the court’s opinion because it correctly resolves the two cases before us. I write separately to emphasize that, for me at least, the dispositive factor in denying *670 relief on the petitioners’ procedural due process claim is their lack of diligence in pressing for expedited review.

The petitiohers’ due process claim arises from delays in the processing of their applications for cancellation of removal based on hardship to their U.S. citizen children. See 8 U.S.C. § 1229b(b)(l)(D). Delay can be fatal to these applications because, under the rule adopted by the Board of Immigration Appeals (BIA), an applicant loses eligibility for this relief if his child turns 21 before the agency has made a decision on the application. See Matter of Isidro-Zamorano, 25 I. & N. Dec. 829, 831 (BIA 2012). The consequences for those who lose their eligibility are severe: An applicant granted cancellation of removal attains the status of a lawful permanent resident, a status he keeps even after his U.S. citizen child turns 21, whereas an applicant denied such relief is subject to removal from the United States and often barred from returning for ten years; See 8 U.S.C. §§ 1182…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERTO MENDEZ-GARCIA, No. 15-71931 Petitioner, Agency No. v. A070-095-653

LORETTA E. LYNCH, Attorney General, Respondent.

MARIO RIVERA-BALTAZAR, No. 13-72924 Petitioner, Agency No. v. A098-382-970

LORETTA E. LYNCH, Attorney OPINION General, Respondent.

On Petition for Review of Orders of the Board of Immigration Appeals

Argued and Submitted September 1, 2016 Pasadena, California

Filed October 20, 2016 MENDEZ-GARCIA V. LYNCH

Before: Barry G. Silverman, Sandra S. Ikuta, and Paul J. Watford, Circuit Judges.

Opinion by Judge Ikuta; Concurrence by Judge Watford

SUMMARY*

Immigration

In consolidated cases, the panel denied Alberto Mendez- Garcia’s and Mario Rivera-Baltazar’s petitions for review from the Board of Immigration Appeals’s decisions denying cancellation of removal because while petitioners’ applications were pending their sons turned 21 and no longer met the definition of “child” under 8 U.S.C. § 1101(b)(1).

The panel held that the BIA reasonably interpreted 8 U.S.C. § 1229b(b)(1)(D) to…