RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0269p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT LEONEL HERNANDEZ-PEREZ, ┐ Petitioner, │ │ > No. 18-3137 v. │ │ │ MATTHEW G. WHITAKER, Acting Attorney General, │ Respondent. │ ┘ On Petition for Review from the Board of Immigration Appeals; No. A 201 171 555. Argued: October 18, 2018 Decided and Filed: December 14, 2018 Before: GUY, WHITE, and STRANCH, Circuit Judges. _________________ COUNSEL ARGUED: Christopher M. Kozoll, KOZOLL & ASSOCIATES IMMIGRATION LAW PLLC, Louisville, Kentucky, for Petitioner. Dawn S. Conrad, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Christopher M. Kozoll, KOZOLL & ASSOCIATES IMMIGRATION LAW PLLC, Louisville, Kentucky, for Petitioner. Michael C. Heyse, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. _________________ OPINION _________________ JANE B. STRANCH, Circuit Judge. Leonel Hernandez-Perez originally applied for cancellation of removal based on hardship that his removal would cause his U.S. citizen No. 18-3137 Hernandez-Perez v. Whitaker Page 2 daughter, L. After that application was denied, he filed a motion to reopen removal proceedings based on hardship to his other U.S. citizen child, a boy named A.W. The BIA denied the motion to reopen for two reasons: (1) Hernandez-Perez had not established that the new evidence was previously unavailable, and (2) even if the evidence was considered, it did not establish prima facie eligibility for cancellation of removal. Because the first conclusion is not supported by the record and the second is not based on application of the appropriate legal standard, we GRANT the petition for review and REMAND to the BIA for further proceedings consistent with this opinion. I. BACKGROUND Hernandez-Perez, a Mexican citizen, has lived and worked in the United States since 2000. He and his wife, also a Mexican citizen, have one daughter, L., a 17-year-old U.S. citizen.1 Hernandez-Perez’s record over the 18 years he has lived in this country has not been perfect. The immigration judge who heard his case was “very concerned” about his criminal history, “although most of the offenses are misdemeanor traffic offenses.” But the same judge commended Hernandez-Perez for maintaining steady employment and providing for his family despite a handicap to his right hand. Letters submitted to the immigration judge describe Hernandez-Perez as a good neighbor, a hard-working employee, a devoted father, and an active member of his church. In 2011, Hernandez-Perez was placed in removal proceedings and applied for cancellation of removal. Cancellation of removal is a form of discretionary immigration relief available to a noncitizen who, among other requirements, “establishes 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.” 8 U.S.C. § 1229b(b)(1)(D). At the merits hearing on his application, held in August 2015, Hernandez- Perez argued that, if he were removed, his daughter, L., would remain in the United States with her mother and so would face “permanent ...
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