FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ARNOLDO ALVAREZ FIGUEROA;
HILDA GUERRA DE ALVAREZ, No. 05-75157
Petitioners, Agency Nos.
v. A77-852-396
MICHAEL B. MUKASEY, Attorney A77-852-397
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 10, 2008—San Francisco, California
Filed September 10, 2008
Before: A. Wallace Tashima, M. Margaret McKeown, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Tashima
12609
12612 FIGUEROA v. MUKASEY
COUNSEL
Philip Barilovits, Dechert LLP, Palo Alto, California, for the
petitioners.
Julie S. Pfluger, Office of Immigration Litigation, Civil Divi-
sion, U.S. Department of Justice, Washington, DC, for the
respondent.
OPINION
TASHIMA, Circuit Judge:
Luis Arnoldo Alvarez Figueroa and Hilda Guerra de Alva-
rez (“Petitioners”) are a married couple who concede that they
FIGUEROA v. MUKASEY 12613
are removable aliens. They petition this Court to review the
Board of Immigration Appeals’ (“BIA”) denial of their Appli-
cation for Cancellation of Removal. Petitioners contend that
the Immigration Judge (“IJ”) applied improper legal standards
in determining whether Petitioners had demonstrated that
their removal would result in a sufficient hardship to their two
citizen-children. Petitioners also argue that their petition
should be granted and the IJ’s opinion vacated because the
IJ’s opinion is indiscernible. The government, on the other
hand, argues that we lack jurisdiction to hear Petitioners’
challenge because Petitioners seek review of a discretionary
determination, which this Court lacks jurisdiction to review,
and because Petitioners failed to exhaust their administrative
remedies with the BIA. For the reasons discussed below, we
hold that Petitioners exhausted their challenges, that we have
jurisdiction to hear their legal challenges, and that the IJ com-
mitted legal error. Thus, we grant the petition and remand the
case to the BIA for further proceedings.
I. JURISDICTION
Petitioners invoke this Court’s jurisdiction pursuant to 8
U.S.C. § 1252(a)(2)(D). The government argues that we lack
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(B)(i). Because
jurisdiction is disputed, we consider the jurisdictional ques-
tion in Part IV.A, infra. We, of course, have jurisdiction to
determine our own jurisdiction. See Sareang Ye v. INS, 214
F.3d 1128, 1131 (9th Cir. 2000).
II. FACTUAL AND PROCEDURAL BACKGROUND
Petitioners, husband and wife, are the parents of three chil-
dren — Claudia, the eldest child, Louis and Natalie. The latter
two are United States citizens. Petitioners and Claudia are
aliens from Jalisco, Mexico.
In July 1999, Petitioners filed an Application for Asylum
and Withholding of Removal with the then-Immigration and
12614 FIGUEROA v. MUKASEY
Naturalization Service (“INS”). Shortly after filing that appli-
cation, Petitioners received from the INS a Notice to Appear
charging that they were subject to removal from the United
States. Petitioners then filed an Application for Cancellation
of Removal and Adjustment of Status.
Removal proceedings began in September 1999. At the ini-
tial hearing, Petitioners conceded removability, and the IJ des-
ignated Mexico as the country of removal. The next hearing
was held in February 2003 before Immigration Judge Wendell
A. Hollis (“IJ”). At that hearing, Petitioners withdrew their
application for asylum and pursued only cancellation of
removal and adjustment of status pursuant to the Immigration
and Nationality Act (“INA”) § 240A(b), 8 U.S.C. § 1229b(b).
In the alternative, Petitioners asked for a grant of voluntary
departure pursuant to INA § 240B(b), 8 U.S.C. § 1229c(a).
In order to show that they were eligible for cancellation of
removal, Petitioners had to demonstrate that: (1) they had
been physically present in the United States for a continuous
period of not less than ten years immediately preceding the
date of their application; (2) they have been persons of good
moral character during that period; (3) they had not been con-
victed of certain offenses; and (4) removal would result in an
exceptional and extremely unusual hardship to their citizen-
children. See 8 U.S.C. § 1229b(b).
In support of that showing, Petitioners testified and pro-
vided other evidence that they had been physically present in
the United States for a continuous period of not less than ten
years, that they were persons of good moral character, and
that they have never been convicted of a crime. Petitioners
also testified that in the event of their removal, they would
take their children to Mexico. The IJ, in his oral opinion,
found them credible, that they met the continual presence
requirement, that they were of good moral character, and that
they had not been convicted of a crime.
FIGUEROA v. MUKASEY 12615
To demonstrate that their removal would result in an excep-
tional and extremely unusual hardship to their two citizen-
children, Dr. Lesleigh Franklin, a clinical psychologist, testi-
fied to the effect a move to Mexico would have on Louis, the
then-13-year-old citizen-son. Louis had been diagnosed with
depression and Attention Deficit Hyperactivity Disorder
(“ADHD”), for which he was treated with medication. Louis’
school in the United States accommodated Louis with Special
Education resources. Dr. Franklin testified that Louis needed
support beyond medication in order for him to maintain his
academic grade level, that Louis needed services which may
not be provided in Mexico, and that moving to Mexico would
create enormous emotional problems for Louis. Dr. Frank
Ephram Lopez, a physician and specialist in pediatrics,
reported that in light of Louis’ conditions, it would not be
“medically advisable” to move Louis “to an environment in
which medical treatment and academic support is inferior or
nonexistent.”
Petitioners also presented evidence that Natalie, the then-
eight-year-old citizen-daughter, lacked Spanish language
skills, and that she had an eye condition which may develop
into something worse in her adult years, although the only
treatment called for at that time was eyeglasses and future eye
examinations.
The IJ, in his oral opinion, concluded that Petitioners had
failed to demonstrate the necessary hardship, stating that, in
order to prevail, Petitioners would have to demonstrate that
the hardship would be “unconscionable.” The opinion is, in
part, nonsensical. See, e.g., IJ Opinion at 20 (“The first obser-
vation is I cannot believe that Congress intended that Immi-
gration Judges should look upon a child that is perfect with
no health for we all know that every child has medical disor-
ders and be it colds, infections, flu, allergies.”). In part, it is
also incoherent. See, e.g., IJ Opinion at 26 (“But more impor-
tantly, this Court in trying to filter the (indiscernible) educa-
tional information through the (indiscernible) of the legal
12616 FIGUEROA v. MUKASEY
analysis of exceptional and extremely unusual hardship,
believes that this case falls short.”).
Petitioners appealed the IJ’s decision to the BIA, and the
BIA adopted and affirmed the IJ’s decision, citing its decision
in In re Burbano, 20 I. & N. Dec. 872 (BIA 1994). Petitioners
then filed a timely petition for review.
III. STANDARD OF REVIEW
Where the BIA expresses no disagreement with any part of
the IJ’s decision, but instead cites In re Burbano, as it did
here, the BIA adopts the IJ’s decision in its entirety. See
Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005)
(en banc). A Burbano affirmance signifies that the BIA has
conducted an independent review of the record and has deter-
mined that its conclusions are the same as those articulated by
the IJ. See id. at 1040. In such a case, we review the IJ’s deci-
sion as if it were the decision of the BIA. See id. at 1040-41.
And, we review legal questions addressed by the IJ de novo.
See Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir.
2005).
IV. ANALYSIS
Petitioners first contend that the IJ erred by applying the
wrong legal standard in requiring Petitioners to show that the
hardship suffered by their citizen-children would be “uncon-
scionable” — a standard expressly rejected in the BIA’s pre-
cedential opinions, and by considering only the hardship
currently suffered by the children due to their medical condi-
tions without considering the hardship the children would suf-
fer in the event that their parents were removed. They contend
that the IJ’s opinion should be vacated and remanded for this
reason. Petitioners also contend that this Court should grant
the petition, vacate the IJ’s opinion, and remand to the BIA
on the separate ground that the IJ’s decision is indiscernible.
FIGUEROA v. MUKASEY 12617
The government moved to dismiss this case for want of
jurisdiction, but a motions panel of this Court denied that
motion without prejudice to the argument being renewed
before the merits panel. Thus, the government once again
argues that we lack jurisdiction over this petition on the
ground that Petitioners seek review of a discretionary deci-
sion. The government further argues that we lack jurisdiction
because Petitioners failed to exhaust their legal challenges
with the BIA. We first consider the jurisdictional questions,
then address Petitioners’ legal challenges on the merits.
A. Jurisdiction
1. Exhaustion
As a threshold matter, the government argues that even if
we have jurisdiction as a general matter to review a petition-
er’s challenge based upon the IJ’s legal errors, we neverthe-
less lack jurisdiction in this case because Petitioners failed to
exhaust their legal challenges before the BIA.1
[1] The government of course is correct that we can con-
sider Petitioners’ challenges only if those issues were raised
before the BIA. See Kaganovich v. Gonzales, 470 F.3d 894,
896-97 (9th Cir. 2006). That is, we have jurisdiction to review
a final order of removal and the issues raised in a petition for
review only if “the alien has exhausted all administrative rem-
edies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).
Because “the policy underlying the exhaustion requirement is
to give an administrative agency the opportunity to resolve a
controversy or correct its own errors before judicial interven-
1
The government also argues that Petitioners’ contention that the IJ’s
decision does not provide an adequate basis for review because of the
many “indiscernibles” in the opinion is being raised for the first time
before this Court. Because we conclude that we do not need to reach that
issue on the merits, we do not consider whether Petitioners exhausted that
challenge.
12618 FIGUEROA v. MUKASEY
tion,” Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004), we
do not employ the exhaustion doctrine in a formalistic man-
ner, but rather inquire into whether the issue was before the
BIA such that it had the opportunity to correct its error. The
exhaustion doctrine requires that the petitioner “put the BIA
on notice” as to the specific issues so that the BIA has “an
opportunity to pass on th[ose] issue[s].” Zhang v. Ashcroft,
388 F.3d 713, 721 (9th Cir. 2004) (per curiam). That is why
a general challenge to the IJ’s decision will not satisfy the
exhaustion requirement, Zara, 383 F.3d at 930; however, a
petitioner need not “elaborate on the argument” in their brief,
see Kaganovich, 470 F.3d at 897. The issue need not even be
raised at all in the brief, if it is raised in the notice of appeal.
Id.; Ladha v. INS, 215 F.3d 889, 903 (9th Cir. 2000). So long
as the issue was raised before the BIA, the exhaustion require-
ment is satisfied. Kaganovich, 470 F.3d at 897; Zhang, 388
F.3d at 721. “[O]ur precedent requires nothing more.”
Kaganovich, 470 F.3d at 897 (quoting Zhang, 388 F.3d at
721).
[2] Here, the issue of whether the IJ applied the wrong legal
standard was presented to the BIA, and the BIA had the
opportunity to correct its error. The IJ announced in his deci-
sion that “[i]n order to establish exceptional and extremely
unusual hardship[,] an applicant for cancellation of removal
must demonstrate that a spouse, parent[,] or child would suf-
fer hardship that is substantially beyond that which would
ordinarily be expected to result from the alien’s deportation
and that such hardship would be unconscionable.” IJ Opinion
at 22 (emphasis added). Petitioners then stated in their notice
of appeal that “[d]enial of Respondent’s Application for Can-
cellation of Removal violated the statute [and] the regula-
tions” and that “there are also other errors of fact and law
made by the Immigration Judge in his/her decision, which
will be described in the brief that will be submitted with this
appeal upon receipt of the transcript.” In their brief to the
BIA, as the government acknowledges, Petitioners stated that
the exceptional and extremely unusual hardship standard did
FIGUEROA v. MUKASEY 12619
not require them to demonstrate that the hardship was “uncon-
scionable.” The government argues that this was not enough
to exhaust this issue because Petitioners did not “put forward
a developed argument.”2 This, of course, is not our standard;
Petitioners need not “argue” anything so long as the issue is
presented to the BIA. Kaganovich, 470 F.3d at 897.
[3] It’s clear that the issue of the IJ’s erroneous statement
of the law was presented to the BIA. Because the BIA “had
a full opportunity to resolve the controversy or correct its own
errors before judicial intervention,” Petitioners’ challenges to
the IJ’s errors of law were exhausted. Ladha, 215 F.3d at 903
(emphasis added); see also Arreguin-Moreno v. Mukasey, 511
F.3d 1229, 1230 (9th Cir. 2008) (“As we recognized in Abebe,
when the BIA cites Burbano in its decision, all issues pre-
sented before the IJ are deemed to have been presented to the
BIA.”). “Where, as here, the agency was aware of the prob-
lem, where it did apply its expertise, where it did exercise its
discretion, it is bizarre—and decidedly unfair to petitioner—
for us to refuse to review that decision . . . .” See Socop-
Gonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir. 2001)
(emphasis in original) (quoting Singh-Bhathal v. INS, 170
F.3d 943, 948 (9th Cir. 1999) (Kozinski, J., dissenting in
part)).
Petitioners have exhausted their administrative remedies.
2. Jurisdiction over legal challenges
Next, the government argues that we should dismiss the
petition for lack of jurisdiction because Petitioners’ challenge
is nothing more than a challenge to the BIA’s discretionary
determination that Petitioners failed to establish their eligibil-
ity for cancellation of removal because they did not demon-
strate that their removal to Mexico would cause an
2
The government cites Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.
2006), in support of this argument.
12620 FIGUEROA v. MUKASEY
“exceptional and extremely unusual hardship” to their quali-
fying relatives. Petitioners, on the other hand, argue that we
do have jurisdiction because they are not challenging the IJ’s
discretionary determinations, but instead are challenging the
IJ’s decision on the ground that the IJ applied the wrong legal
standards.
Under 8 U.S.C. § 1252, we have jurisdiction to review final
orders of the BIA which call for a petitioner’s removal. See
Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir.
2008). We lack jurisdiction, however, to review the BIA’s
discretionary determination that an alien failed to prove that
her removal would result in “exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who
is a citizen of the United States or an alien lawfully admitted
for permanent residence.” See Martinez-Rosas v. Gonzales,
424 F.3d 926, 929-30 (9th Cir. 2005) (citing 8 U.S.C.
§ 1252(a)(2)(B)(i)3).
[4] Notwithstanding the jurisdiction-stripping provision of
8 U.S.C. § 1252(a)(2)(B)(i), the REAL ID Act of 2005
restored judicial review of “constitutional claims or questions
3
Section 1252(a)(2)(B)(i) provides:
Notwithstanding any other provision of law (statutory or nonsta-
tutory), including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, and
except as provided in subparagraph (D), and regardless of
whether the judgment, decision, or action is made in removal pro-
ceedings, no court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255 of this title[.]
Section 1229b pertains to cancellation of removal and adjustment of sta-
tus for certain nonpermanent residents. See 8 U.S.C. § 1229b. As we have
discussed, to be eligible for an adjustment of status under § 1229b, an
alien must “establish[ ] that removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child, who is
a citizen of the United States or an alien lawfully admitted for permanent
residence.” Id. § 1229b(b)(1)(D).
FIGUEROA v. MUKASEY 12621
of law raised upon a petition for review filed with a[ ] . . .
court of appeals.” See Pub. L. No. 109-13, Div. B.,
§ 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005), codified at 8
U.S.C. § 1252(a)(2)(D).4 “The plain language of the REAL ID
Act grants jurisdiction to appellate courts to review questions
of law presented in petitions for review of final orders of
removal, even those pertaining to otherwise discretionary
determinations.” Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th
Cir. 2006). We have construed § 1252(a)(2)(D) to provide
jurisdiction for challenges to the agency’s interpretation and
application of § 1229b(b)(1)(D)’s “exceptional and extremely
unusual hardship” standard based upon international law, see
Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir.
2005) (holding that we had jurisdiction to consider whether
the BIA’s interpretation of the “exceptional and extremely
unusual hardship” standard violated international law), and
constitutional law, see Martinez-Rosas, 424 F.3d at 930 (hold-
ing that we had jurisdiction to consider whether the agency’s
application of the “exceptional and extremely unusual hard-
ship” standard violated the petitioner’s constitutional right to
due process); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1005
(9th Cir. 2003) (“Whether the BIA’s interpretation of the
hardship standard violates due process is not a ‘judgment
regarding the granting’ of cancellation of removal relief.
Rather, it presents a question of statutory construction.”).
On the other hand, we have construed 8 U.S.C.
§ 1252(a)(2)(B)(i) and § 1252(a)(2)(D) to preclude review of
a challenge based upon the application of the law to the facts
4
Section 1252(a)(2)(D) provides:
Judicial review of certain legal claims
Nothing in subparagraph (B) or (C), or in any other provision of
this chapter (other than this section) which limits or eliminates
judicial review, shall be construed as precluding review of consti-
tutional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals in accordance
with this section.
12622 FIGUEROA v. MUKASEY
of the particular case, even when that challenge is cloaked as
a legal challenge. See Martinez-Rosas, 424 F.3d at 930 (con-
cluding that the petitioner’s argument that the IJ violated her
right to due process by misapplying the facts of her case to
applicable law was “nothing more than an argument that the
IJ abused his discretion, a matter over which we have no juris-
diction”).
Here, Petitioners do not argue that the IJ made a legal error
by misapplying the facts of their case to the applicable law;
rather, they argue that the IJ made legal errors in understand-
ing the meaning of “exceptional and extremely unusual hard-
ship.”5 While our Circuit has not directly addressed whether
we have jurisdiction over challenges based on the IJ’s
employment of an improper legal standard when construing
the meaning of “exceptional and extremely unusual hardship,”
the Seventh Circuit has:
Neither the IJ nor the Board thought that his moth-
er’s hardship would be “exceptional and extremely
unusual,” the statutory standard for cancellation of
removal based on hardship to an alien’s immediate
relative. 8 U.S.C. § 1229b(b)(1). We lack jurisdic-
tion to review [petitioner’s] contention that the
agency should have exercised discretion in his favor.
...
The REAL ID Act of 2005[, however,] creates an
exception for constitutional contentions and other
pure issues of law. [Petitioner] does advance [an]
argument[ ] that meet[s] this description. . . that the
immigration judge made a legal error in understand-
5
See Petitioner’s Brief at 21 (“[T]he Alvarez family maintains that the
IJ . . . made a legal mistake in holding that the hardship standard required
a showing of ‘unconscionability.’ ”); id. at 39-41 (arguing that the IJ failed
to consider the effect that the parents’ removal would have on the citizen-
children).
FIGUEROA v. MUKASEY 12623
ing the meaning of “exceptional and extremely
unusual hardship.”
Mireles v. Gonzales, 433 F.3d 965, 968-69 (7th Cir. 2006)
(statutory citation omitted). The Seventh Circuit then con-
cluded that it had jurisdiction to hear the petitioner’s chal-
lenge, but ultimately decided that the IJ in that case “used the
right legal standard.” Id. at 969.
[5] In addition, we have concluded in other contexts that
we have jurisdiction to consider whether the BIA failed to
apply the proper legal standard even when the underlying
decision was a discretionary one. For example, we have held
that we have jurisdiction to consider whether the BIA failed
to apply the correct legal standard in determining whether the
petitioner’s specific crime was a “particularly serious crime,”
even though whether a crime is particularly serious is a dis-
cretionary determination which we lack jurisdiction to review.
See Afridi, 442 F.3d at 1217-21. In Afridi, the petitioner
sought review of the BIA’s failure to interpret “particularly
serious crime” consistently with its own precedent. Id. at
1217. We characterized that challenge as one that raised
“questions of statutory construction,” and concluded that
whether the BIA employed an improper standard in making
that determination is a question of law which we have juris-
diction to review. See id. at 1218-19 (“While we cannot
reweigh evidence to determine if the crime was indeed partic-
ularly serious, we can determine whether the BIA applied the
correct legal standard in making its determination.”).
[6] We also have explicitly rejected the view that because
the IJ’s decision is discretionary, it is beyond our review even
if the IJ misapplies the law. In Hernandez v. Aschroft, 345
F.3d 824 (9th Cir. 2003), the government argued that we
lacked jurisdiction to review the BIA’s decision that the non-
viabiliy of petitioner’s marriage was a proper basis for deny-
ing her adjustment status even though the BIA’s precedent
had long established that the nonviability of a marriage at the
12624 FIGUEROA v. MUKASEY
time of adjustment is not a permissible basis for denying a
petition. Id. at 845-47. The government further argued that we
lacked jurisdiction to review that error because the adjustment
of status is a matter left to the BIA’s discretion. See id. at 845.
Rejecting that argument, we held in Hernandez that we do
have jurisdiction to hear such a challenge:
The BIA has no discretion to make a decision that
is contrary to law. . . . A nonprecedential decision by
the BIA in defiance of its own precedential case law
simply cannot be classified as discretionary. . . . As
we have explained before, the BIA must exercise its
discretion within the constraints of law.
. . . . When the BIA acts where it has no legal
authority to do so, it does not make a discretionary
decision, and such a determination is not protected
from judicial review. Because the decision made by
the BIA was contrary to law, it was not discretionary
and jurisdiction exists to review the determination.
Id. at 846-47 (internal citations, footnote, emendations, and
quotation marks omitted).
[7] Because Petitioners argue that the IJ failed to follow
BIA precedent and misconstrued the statute when determining
whether Petitioners had demonstrated “exceptional and
extremely unusual hardship” under 8 U.S.C.
§ 1229b(b)(1)(D), we hold that we have jurisdiction to review
their challenge.
B. Legal Error
As for the merits of Petitioners’ challenge, Petitioners
argue that the IJ made legal errors by requiring Petitioners to
demonstrate that removal would result in an unconscionable
hardship to their citizen-children and by failing to consider
FIGUEROA v. MUKASEY 12625
the hardship the children would suffer in the event of their
parents’ removal.6 We consider each in turn.
1. Unconscionability
[8] Petitioners argue that the IJ erred as a matter of law by
requiring Petitioners to show that their children “would suffer
hardship substantially beyond that which would ordinarily be
expected to result from the alien’s deportation and that such
hardship would be unconscionable.” Under BIA case law,
Petitioners need not show that the hardship would be uncon-
scionable. Indeed, the BIA has said just the opposite. See In
re Monreal-Aguinaga, 23 I. & N. Dec. 56, 61 (BIA 2001) (en
banc) (“[W]e do not find that an ‘unconscionable’ standard is
an appropriate one to apply in evaluating a respondent’s eligi-
bility for cancellation of removal under section 240A(b) of
the Act.”); see also In re Recinas, 23 I. & N. Dec. 467, 468
(BIA 2002) (“We specifically stated . . . that the alien need
not show that such hardship would be ‘unconscionable.’ ”).
Therefore, the IJ erred in requiring Petitioners to show that
their removal would result in an “unconscionable” hardship to
their citizen-children.
2. Failure to analyze how removal would affect the
citizen-children
Petitioners next argue that the IJ committed legal error by
focusing only upon the children’s present medical conditions
and by failing to analyze how their parents’ deportation would
affect the citizen-children in the future.
6
Petitioners also argue that the IJ erred when the IJ failed to consider
the most important factors set forth in BIA and Ninth Circuit precedent for
determining whether qualifying citizen-children would suffer “exceptional
and extremely unusual hardship” if their parents were removed. Because
we grant the petition based upon the other challenges, we do not reach the
question of whether the IJ made a legal error by failing to consider certain
factors.
12626 FIGUEROA v. MUKASEY
[9] Petitioners are correct. The IJ read the statute and BIA
case law as requiring him to determine whether the children
were currently suffering from an exceptional and extremely
unusual hardship, whereas the law requires the IJ to consider
whether the citizen-children would suffer an exceptional and
extremely unusual hardship in the future should their parents
be removed. See 8 U.S.C. § 1229b(b)(1)(D) (stating that the
alien must “establish[ ] that removal would result in excep-
tional and extremely unusual hardship to the alien’s . . . child,
who is a citizen of the United States”) (emphasis added);
Cabrera-Alvarez, 423 F.3d at 1012 (“If the children will
accompany the removed parent, the agency considers . . .
adverse conditions that [the children] might experience in the
country of removal[.]” (citing In re Monreal, 23 I. & N. Dec.
at 63-64)); In re Recinas, 23 I. & N. Dec. at 468 (“We . . .
noted that, in deciding a cancellation of removal claim, con-
sideration should be given to the age, health, and circum-
stances of the qualifying family members, including how a
lower standard of living or adverse country conditions in the
country of return might affect those relatives.”); In re Mon-
real, 23 I. & N. Dec. at 58 (“[A]n alien must show that his
or her qualifying relative would suffer exceptional and
extremely unusual hardship if the alien is deported.”).
For example, the IJ stated:
The 8 year old child has astigmatism and has a [sic]
ocular disorder with a history that runs in the family.
The Court cannot find that astigmatism and wearing
eyeglasses which is a common occurrence rises to
the level of exceptional and extremely unusual hard-
ship. I cannot find that this medical condition, not to
take lightly, but people wear glasses because they
can’t see. While it may be a hardship to the person,
I think that Congress intended not to include some-
one who had an astigmatism.
FIGUEROA v. MUKASEY 12627
IJ Opinion at 23. As for the son, Louis, the IJ also analyzed
his present condition and not what effect the removal would
have on him:
L[o]uis is a 13 year old child who has ADHD. . . .
[Louis] receives resources and special help to help
him maintain his grade point average for two hours
and 40 minutes a week. He . . . receives the help of
a medical psychological social worker . . . [T]his
Court does not take lightly the medical diagnosis of
attention deficit disorder, but the Court believes that
when it looks at the services that are provided and
looks at the test scores of this child, and looks at
documents that have been presented, the Court
believes that on this (indiscernible) hardship to
exceptional and extremely unusual hardship, the
Court cannot find that Luis’ condition is compelling
or serious enough to rise to the level of exceptional
and extremely unusual hardship.
IJ Opinion at 24.
[10] The IJ has, thus, misconstrued the statute and BIA pre-
cedent. The inquiry is whether, in the event of the parents’
removal, the Alvarezes’ daughter’s eye condition would
create an exceptional hardship in the country of return and
whether Louis’ ADHD and depression would create an excep-
tional hardship for him in the country of return. It is a future-
oriented analysis, not an analysis of their present conditions.
Congress did not provide for the exercise of discretion based
upon whether the citizen-children already faced an extremely
unusual hardship as they live in the United States; rather,
Congress intended that discretion in cancellation of removal
cases be exercised on the basis of whether removal would
result in an exceptional and extremely unusual hardship to the
citizen-children.
“[I]t is clear that BIA does not exercise its discretion when
it acts in a matter contrary to law. Because the BIA did so
12628 FIGUEROA v. MUKASEY
here, we review its determination, reverse its decision, and
remand for further proceedings consistent with the opinion.”
Hernandez, 345 F.3d at 849.
[11] Because the IJ acted contrary to law by looking only
to the children’s current condition and not to the citizen-
children’s future condition in the event of their parents’
removal in making his hardship determination, we reverse the
BIA’s decision and remand for further proceedings.
C. Indiscernibility of the IJ’s Opinion
Finally, Petitioners argue that the IJ’s decision should be
vacated because it is so incoherent that its reasoning cannot
be discerned. An indiscernible IJ decision is problematic
because “[w]hen the agency’s reasoning is indiscernible, ‘the
courts cannot exercise their duty of review.’ ” Recinos De
Leon v. Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) (quot-
ing SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)). In such
cases, remand is proper. See id. at 1187.
Because we grant the petition and remand the case based
upon the IJ’s errors of law, we need not decide whether the
indiscernibility of the IJ’s opinion would independently war-
rant a remand. A review of the IJ’s opinion demonstrates,
however, that large parts of the opinion are incoherent. We
note that, whether it is due to antiquated recording equipment,
an exceptionally heavy caseload, or some other reason, the
deficiencies in the IJ’s opinion certainly have complicated our
review.
V. CONCLUSION
We hold that we have jurisdiction to hear Petitioners’ legal
challenges and, considering those challenges on the merits,
that the IJ applied the wrong legal standards in making his
decision. We therefore grant the petition for review, reverse
FIGUEROA v. MUKASEY 12629
the decision of the BIA, and remand the case to the BIA for
further proceedings consistent with this opinion.
PETITION GRANTED, DECISION REVERSED and
REMANDED.