Court Limits BIA Authority: No Deference in Hardship Cases
The Fifth Circuit has affirmed the agency’s hardship finding in a cancellation of removal case. Discussing the complexities of Cancellation Of Removal / by Attorney Brian D. Lerner, the court found that the applicant, Carlos Pineda, had not established that his U.S. citizen son would suffer “exceptional and extremely unusual hardship”. This was true even if the court gave no deference to the agency’s determination. In the case of
Pineda v. Garland, the court denied the petition for review and upheld the Board of Immigration Appeals’ (BIA) decision.
Factual Background
The petitioner, Carlos Pineda, is a citizen of Honduras who entered the U.S. in 2003. He was later placed in removal proceedings. Pineda then applied for cancellation of removal, which required him to prove ten years of continuous physical presence, good moral character, and that his removal would cause “exceptional and extremely unusual hardship” to a qualifying U.S. citizen relative. Pineda’s son was his qualifying relative. His son was born in 2013 and diagnosed with autism spectrum disorder.
Pineda argued that his deportation would negatively impact his son’s medical treatment and education. He contended that he was the son’s primary caregiver. Pineda also argued that his son would be forced to live in poverty and face threats of gang violence in Honduras. An Immigration Judge (IJ) denied his application. The IJ found that while the son would experience hardship, it was not at the required statutory level. The BIA affirmed the IJ’s decision, which led to Pineda’s appeal to the Fifth Circuit.
The Court’s Reasoning on Hardship
The Fifth Circuit reviewed the case. It assumed for the sake of argument that the hardship finding was a question of law. This would make it subject to de novo review, a less deferential standard. Even under this standard, the court concluded that the BIA did not err. The court found that the hardship to Pineda’s son, while significant, was not “exceptional and extremely unusual”. The court noted that the hardship would be similar to what many children of deported parents face. This includes a likely decline in the family’s financial situation. It also includes having to adapt to a new country and language. The court also found no evidence that his son’s medical or educational needs could not be met in Honduras. Thus, the court affirmed the BIA’s conclusion that Pineda had not met the statutory requirements for Cancellation of Removal.
