Castro

concurring in part and dissenting in part.

I agree that the Board of Immigration Appeals (“BIA”) must reinstate twenty days of voluntary departure. But I cannot join the majority’s holding that the BIA did not abuse its discretion when it declined to reconsider Jimenez Castro’s application for cancellation of removal. Because the BIA failed to properly weigh the unusually acute hardship that Jimenez Castro’s U.S. citizen son will suffer if his father is removed, I respectfully dissent in part.

We review the BIA’s denial of a reconsideration motion for an abuse of discretion. See Salta v. INS, 314 F.3d 1076, 1078 (9th Cir.2002). We have held that generalized, cursory consideration of hardship to a U.S. citizen child constitutes an abuse of discretion. See Jara-Navarrete v. INS, 813 F.2d 1340, 1342 (9th Cir.1986). The BIA must take into account all “the social and humane considerations presented in an applicant’s favor and balanc[e] them against the adverse factors that evidence the applicant’s undersirability as a permanent resident.” Arrozal v. INS, 159 F.3d 429, 432-33 (9th Cir.1998) (emphasis in original) (quotation omitted). Because the BIA failed to properly consider and…

MEMORANDUM *

Martin Jimenez Castro was charged as an alien in the United States without having been admitted or paroled. He applied for cancellation of removal pursuant to 8 U.S.C. § 1229b(b)(l), arguing that his removal would cause his American citizen son “exceptional and extremely unusual hardship.” An immigration judge (“IJ”) denied him this relief but granted his application for voluntary departure. On May 11, 2004, the Board of Immigration Appeals (“BIA”) upheld the IJ’s decision on appeal. Castro did not file a petition for review of that decision.

Castro filed a timely “Motion to Reconsider and for Stay of Removal/Deportation” on May 21, 2004, but he identified no errors of fact or law and instead asserted the same hardship argument he made in his appeal. The BIA denied his motion on July 8, 2004. In denying the motion, the BIA noted that Castro had remained in the United States after the thirty-day voluntary departure period lapsed, and accordingly he could not apply for cancellation of removal for 10 years. See 8 U.S.C. § 1229e(d)(l). Castro filed a timely petition for review of the BIA’s denial of his motion to reconsider.

A motion to reconsider must identify errors…