Tuesday, March 31, 2009

Moran-Hernandez (Not Precedential): Cancellation of Removal Must Consider Unusual Tropical Storm Damage

Moran-Hernandez v. Mukasey
Nos. 07-2323 & 07-3560
Not Precedential
October 1, 2008

Judges Barry, Smith, and Hardiman. Per Curiam decision.

IJ Annie S. Garcy granted cancellation of removal for someone who had two children and lived with the father of the two children in New Jersey. Public education in Guatemala would be very difficult, especially in rural areas for children above sixth grade. The woman assumed the operation of a landscaping business after the government deported the two children's father.

Although the IJ granted cancellation of removal, ICE appealed and the BIA overturned IJ Garcy's grant. However, the BIA failed to review the entire record before deciding to overturn IJ Garcy's decision. It also did not consider all of the factor set forth in Matter of Recinas. The BIA failed to take account of how Guatemala was devastated by Tropical Storm Stan in 2005 so there would be no way to house or feed the two children there. The BIA also erred by ignoring how a severely lower standard of living caused by an extremely unusual event could affect the children.

The Third Circuit overturned the BIA's decision and reinstated IJ Garcy's grant of cancellation of removal. IJ Garcy was right all along, but the BIA erred in its decision.

For Ms. Moran-Hernandez was Maria I. Thomas of Thomas & Thomas in Princeton, NJ. For the government were Francis W. Fraser, Nancy E. Friedman, and Justin R. Markel of OIL in the Justice Department.


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