NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0102n.06 Case No. 18-3474 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 04, 2019 EDMUNDO SOLANO-ABARCA, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) ) ____________________________________/ Before: MERRITT, GIBBONS, and NALBANDIAN, Circuit Judges. MERRITT, Circuit Judge. This is a cancellation of removal case from the Board of Immigration Appeals. When an alien seeks to secure a discretionary ruling from an Immigration Judge cancelling removal, he or she must show: (1) continuous presence in the country for ten years; (2) good moral character during that period; (3) no convictions for certain enumerated offenses; and (4) 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.” See 8 U.S.C. § 1229b(b)(1). The inquiry on the fourth factor focuses on the hardships to qualifying U.S. citizen relatives: the spotlight is on the family’s suffering rather than the alien’s. Those decisions are reviewed by the Board of Immigration Appeals. After that, our review is limited to questions of law or constitutional claims. See 8 U.S.C. § 1252(a)(2)(D). Case No. 18-3474, Solano-Abarca v. Barr The Immigration Judge below denied cancellation of removal, and the petitioner appealed to the Board. During the pendency of that appeal, but before the Board issued a decision, the petitioner filed a Motion to Reopen and Remand, claiming that a new qualifying relative’s deteriorating medical condition warranted reconsideration of the hardship standard. The Board denied this Motion and affirmed the cancellation hardship finding. The instant appeal focuses only on the denial of the Motion. The petitioner complains that the Board’s decision disregards new and important evidence essential to an assessment of whether exceptional and extremely unusual hardship will befall his qualifying U.S. citizen relatives if he is deported. At the hearing before the Immigration Judge, petitioner presented evidence about three qualifying U.S. citizen relatives: his U.S. citizen wife and two biological U.S. citizen children, a boy and a girl. But in the Motion for Remand filed with the Board, the petitioner disclosed that he had a second U.S. citizen daughter who, although she was born before the hearing, was diagnosed with a severe medical condition after the hearing. He seeks a remand to the Board because he believes that the Board did not properly consider this new evidence the first time around when it issued its decision. We are guided in this case by a very recent published opinion from this Court, Hernandez- Perez v. Whitaker, No. 18-3137, __ F.3d __, 2018 WL 6580478 (6th Cir. Dec. 14, 2018). Hernandez-Perez concerned a similar situation where new evidence about qualifying relatives arose late in the game while the petitioner’s case was in the appellate pipeline before the Board. Balancing the issues in these cases is difficult because the burden is on the ...
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