Removal; undue hardship
It was error to deny a request for cancellation of removal based on undue hardship to the claimant’s children, on the basis that the claimant’s husband could care for them, when the husband also faced removal.
“We find that Champion’s allegation that the BIA ignored the evidence she presented concerning Yomi’s potential deportation was a good faith claim of legal error that we may review. As we have previously held, ‘a claim that the BIA has completely ignored the evidence put forth by a petitioner is an allegation of legal error.’ Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir. 2008). And the ‘failure to exercise discretion or to consider factors acknowledged to be material to such an exercise-such as the wholesale failure to consider evidence-would be an error of law . . . .’ Id. (citations and internal quotation marks omitted). Here, both the IJ and the BIA virtually ignored the possibility that Yomi could also be deported, an oversight that we have found may warrant remand. See, e.g., Kone v. Holder, 620 F.3d 760, 765 (7th Cir. 2010) (remanding to BIA to determine, inter alia, whether petitioner had a claim for constructive deportation when both parents were under removal proceedings). Finding that the BIA erred by failing to consider the impact of Yomi’s potential deportation, we remand this matter in order for the BIA to address this critical component of the hardship analysis.”
09-3065 Champion v. Holder
Petition for Review of an Order of the Board of Immigration Appeals, Williams, J.