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Matter of Hugo PORTILLO-GUTIERREZ, Respondent
File A098 672 802 – El Paso, Texas
Decided November 30, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
A stepchild who meets the definition of a “child” under section 101(b)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(b)(1)(B) (2006), is a qualifying relative
for purposes of establishing exceptional and extremely unusual hardship for cancellation
of removal under section 240A(b)(1)(D) of the Act, 8 U.S.C. § 1229b(b)(1)(D) (2006).
FOR RESPONDENT: Erlinda O. Johnson, Esquire, Albuquerque, New Mexico
FOR THE DEPARTMENT OF HOMELAND SECURITY: William M. Hunt, Assistant
Chief Counsel
BEFORE: Board Panel: ADKINS-BLANCH and GUENDELSBERGER, Board Members;
KING, Temporary Board Member.
ADKINS-BLANCH, Board Member:
In a decision dated September 3, 2008, an Immigration Judge found the
respondent removable, denied his application for cancellation of removal
pursuant to section 240A(b)(1)(D) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(b)(1)(D) (2006), but granted him voluntary departure. The
respondent has appealed from that decision. The appeal will be sustained and
the record will be remanded to the Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a 30-year-old native and citizen of Mexico. He admitted
that he entered the United States on or about September 1, 1996, without being
admitted or paroled. The respondent was married to a lawful permanent
resident on May 25, 2007, but the record reflects that they have been together
for about 10 years. He and his wife have two sons, aged 8 and 9. The
respondent’s wife has two other children, a son and a daughter who has special
needs. Both the respondent and his wife testified that he is the primary
caretaker of the children.Cite as 25 I&N Dec. 148 (BIA 2009) Interim Decision #3665
1 In regard to the Immigration Judge’s statement that the respondent’s wife could become
a naturalized United States citizen and file a visa petition on his behalf, we note that the
respondent could not adjust his status in the United States under section 245(i) of the Act,
8 U.S.C. § 1255(i) (2006), on the basis of such a visa petition because it could not have been
filed until after their marriage in 2007. See section 245(i)(1)(B)(i) of the Act. Further, the
(continued…)
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The Immigration Judge found that the respondent met the requirements
of physical presence and good moral character for cancellation of removal
but concluded that he did not establish the necessary level of exceptional
and extremely unusual hardship to warrant a grant of relief. With regard
to hardship, the Immigration Judge stated that “the respondent does have in the
household a child . . . that he considers to be his daughter. However, there
is no evidence to establish that the respondent has adopted this child, or that
this child is considered the respondent’s child as that term is defined under
the . . . Act.” The Immigration Judge noted that the child has medical
conditions, including speech difficulties, and that she has present and future
special needs. Nevertheless, he stated that he would “no longer address this
child as being a qualifying relative” and concluded that “the child’s condition
is considered only for limited purposes” as it related to the hardship of the
respondent’s wife.
II. ANALYSIS
The Act defines a “child” as “an unmarried person under twenty-one years
of age.” Section 101(b)(1) of the Act, 8 U.S.C. § 1101(b)(1) (2006). This
definition includes a stepchild, provided the child had not reached the age
of 18 years at the time the marriage creating the status of stepchild occurred.
Section 101(b)(1)(B) of the Act. No separate adoption is required for
a stepchild to be considered a “child.”
The record indicates that the respondent married his wife in May of 2007,
at which time her children became his stepchildren. At the time of the hearing
before the Immigration Judge, which occurred in September 2008, the
respondent’s stepdaughter was 12 years old and therefore qualified as his
“child” within the meaning of section 101(b)(1)(B) of the Act. Thus, she
should have been given full consideration as a qualifying relative in evaluating
the hardship in this case. See section 240A(b)(1)(D) of the Act. Furthermore,
the respondent’s stepson, who was 15 years old at the time of the proceedings
below, should also have been considered a qualifying relative.
We therefore find it appropriate to remand the record for the Immigration
Judge to reevaluate his findings concerning the hardship that the respondent’s
family might suffer if he is removed from the United States.1
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(…continued)
respondent might be subject to section 212(a)(9)(B)(i) of the Act, 8 U.S.C.
§ 1182(a)(9)(B)(i) (2006), and would need a waiver of that ground of inadmissibility before
he could be admitted into the United States.
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ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.