NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 17-3094 _____________ LUIS ANTONIO JIMENEZ VILLA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent _____________ On Petition for Review of an Order of the Board of Immigration Appeals (BIA-1 A206-907-815) Immigration Judge: Honorable Charles Honeyman _____________ Submitted Under Third Circuit L.A.R. 34.1(a) June 15, 2018 Before: SMITH, Chief Judge, CHAGARES, and FUENTES, Circuit Judges (Opinion filed: August 8, 2018) _____________ OPINION ∗ _____________ ∗ This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. FUENTES, Circuit Judge. Luis Antonio Jimenez Villa petitions for review of the Board of Immigration Appeal’s order affirming the Immigration Judge’s decision declining to grant Cancellation of Removal for Non-Lawful permanent Residents. The Board of Immigration Appeals and the Immigration Judge relied on 8 U.S.C. § 1101(a)(35) to invalidate a foreign marriage, which requires post-solemnization consummation under immigration law. Absent this marriage, they found Jimenez lacking his claimed parent-child relationship over his claimed step-son. For the following reasons, we grant the petition for review, and will vacate and remand. I. Jimenez is a citizen of Ecuador who entered the United States illegally in 1996. In 2010, Jimenez began a relationship with Angelica Orozco, also a citizen of Ecuador. Orozco has five children—all US citizens—from a previous relationship, including her oldest son Kevin. In 2013, Orozco and her five children returned to Ecuador to care for a sick relative. In 2014, while in Ecuador, Orozco gave birth to Nathan Jimenez-Orozco, Jimenez’s biological son. In the summer of 2014, Kevin returned to the United States to live with Jimenez and complete his high school education. Jimenez is solely responsible for Kevin’s care. Around this time, Jimenez was arrested for, and pled guilty to, Driving Under the Influence. The Department of Homeland Security arrested Jimenez and charged him as removable. In May 2015, Jimenez and Orozco married in an Ecuadorian proxy marriage, while Jimenez was in the United States and Orozco was in Ecuador. Jimenez conceded his 2 removability, but submitted a Form EOIR-42B, or “42B Non-LPR cancellation,” application to cancel his removal. This provides for cancellation of removal where the alien has: (1) been in the United States for ten years continuously; (2) been a person of good moral character; (3) not been convicted of certain offenses; and (4) established that removal would result in exceptional and extremely unusual hardship to the applicant’s spouse, parent, or child who is a citizen of the United States. 1 The Immigration Judge declined to grant cancellation of removal, concluding Kevin did not qualify as Jimenez’s child because Jimenez’s marriage to Orozco was not consummated after the proxy marriage. This determination relied on 8 U.S.C. § 1101(a)(35), which defines “spouse” to not include: “a spouse, wife, or husband by reason of any marriage ceremony where the contracting parties thereto are not physically present in the presence of each other, unless the marriage shall have been consummated.” 2 The ...
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