Tuesday, August 31, 2010

Pareja: Overturning BIA For Possibly Denying Non-LPR Cancellation Based On Number of Qualifying Relatives

Pareja v. Holder
July 29, 2010

Before Judges Smith, Fisher, and Greenberg. Opinion by Judge Fisher.

For Ms. Pareja, David A. Isaacson (argued) of Cyrus D. Mehta & Associates in NY, NY. For the government, Linda Y. Cheng (argued) and W. Daniel Shieh.

The Third Circuit overturned the BIA in a case originally decided by IJ Eugene Pugliese.

The Third Circuit harshly criticized OIL and the government attorneys for refusing to offer any argument or explanation about the merits of Ms. Pareja's appeal. The government focused solely on its incorrect belief that the court had no jurisdiction over the issues. The Third Circuit again emphasized the importance for the government to follow Federal Rule of Appellate Procedure 31 and offer guidance to the court -- something the government also failed to do in Leslie v. Holder, 2010 US App. LEXIS 13952 (3d Cir. July 8, 2010).

For non-LPR cancellation of removal, the Third Circuit has the power to consider whether the BIA erred in Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), but the court concluded that it must defer to the reasonable interpretation offered by the BIA of the non-LPR cancellation statute.

Whether the BIA erred by putting weight on the number of qualifying relatives she had, the Third Circuit has the power to review whether the BIA made a mistake. Here, the Third Circuit ruled the BIA was unclear and it was possible that it erred by distinguishing Ms. Pareja's case solely because she had less qualifying relatives. The Third Circuit overturned the BIA and remanded for clarification.


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