NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 21-1194 _____________ HECTOR SANCHEZ-ESCANDON, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of a Final Order of the Board of Immigration Appeals No. A216-647-159 Immigration Judge: Alice Song Hartye ______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on March 4, 2022 Before: McKEE, AMBRO, and SMITH, Circuit Judges (Opinion filed: February 17, 2023) _______________________ OPINION*** _______________________ Judge McKee assumed senior status on October 21, 2022. Judge Ambro assumed senior status on February 6, 2023. *** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge. Hector Sanchez-Escandon petitions for review of the Board of Immigration Appeals’ final order of removal and its denial of his motion to remand. For the reasons that follow, we will grant the petition, vacate the BIA’s decision, and remand for further proceedings consistent with this opinion. I.1 Sanchez-Escandon sought cancellation of removal, arguing that it would result in an exceptional and extremely unusual hardship for his family. He is married, has two stepdaughters, and has one biological son from a previous relationship. Among his arguments, Sanchez-Escandon contended that his removal would impose a particular hardship on his son, who had been suffering emotional and psychological distress since his father’s detention. The Immigration Judge found that—although Sanchez-Escandon’s son would be left with his stepmother who did not have legal custody of him— “it is only reasonable to assume [he] will be adequately cared for and supported.”2 The IJ explained: “One parent will remain in the United States.”3 After considering the other potential hardships, the IJ denied Sanchez-Escandon’s application for cancellation of removal. 1 The BIA had jurisdiction to hear Sanchez’s case under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15 (2019), which grant it appellate jurisdiction over the decisions of immigration judges in removal cases. Our jurisdiction to review the Board’s order is governed by 8 U.S.C. § 1252, which confers exclusive jurisdiction on the federal courts of appeals to review most final orders of removal. See 8 U.S.C. §§ 1252(a)(1), (5). 2 A.R. 78. 3 A.R. 78. 2 Sanchez-Escandon appealed this denial to the BIA. While his appeal was pending, he also filed a motion to remand for consideration of additional information regarding his son’s psychological harm and the strained relationship between his son and his wife. The BIA adopted and affirmed the IJ’s denial of the cancellation of removal and denied the motion for remand. II. Although we do not have jurisdiction to review the BIA and IJ’s discretionary determinations, we retain jurisdiction to review colorable constitutional claims and questions of law.4 The Attorney General argues that we lack jurisdiction to review the agency’s denial of Sanchez-Escandon’s application for cancellation of removal because the determination that he had not shown sufficient hardship is discretionary. The agency, however, based this decision on an erroneous conclusion of law—that Sanchez- Escandon’s son would have “one parent…remain[ing] …
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