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The Ninth Circuit does not have jurisdiction over a plaintiff’s claim that she did not receive due process because her request for cancellation of removal was denied even though her husband’s cancellation of removal request had been granted based on similar circumstances. The Board of Immigration Appeal (BIA) “committed an error of law” when it relied on a categorical rule that the “availability of alternative relief necessarily undercuts a cancellation of removal claim of hardship to the applicant’s qualifying relative.”

Laura Arteaga de Alvarez (Arteaga) is an undocumented Mexican national. She applied for cancellation of removal and was denied. She appealed to the BIA. The BIA affirmed the denial because Arteaga’s alternative means to immigrate, such as a spousal petition, “necessarily undercut her ability to demonstrate that her children would suffer exceptional and extremely unusual hardships if she was removed fro the United States.” Arteaga appealed. She claimed that the BIA’s decision had violated her right to due process because her husband had been previously granted a cancellation of removal under similar circumstances. Arteaga also claimed that the BIA had incorrectly determined that her ability to lawfully return to the United States “necessarily [undercut] … her claim that her children would suffer the requisite hardship if she were to be removed from the United States.” In Mendez-Castro v. Mukasey, the Ninth Circuit held that it lacked jurisdiction over “a due process claim that alleges that the BIA’s hardship determination in a cancellation of removal case is factually inconsistent with similar prior agency hardship determinations.” The Court could not distinguish Arteaga’s due process claim from Mendez-Castro’s. Thus the court held that it lacked jurisdiction to review Arteaga’s due process claim. For Arteaga’s second claim, the Court reasoned that the BIA created a categorical rule when it held that Arteaga’s ability to return legally to the United States necessarily undercuts her hardship claim for her children. This rule violates the requirement that the BIA assess each application for cancellation of removal individually and on its own facts. The Court concluded that ignoring this requirement would contradict its own precedent, previous BIA decisions and “the underlying purpose of cancellation of removal relief.” The Court held that the categorical rule is an incorrect interpretation of the statute. VACATED and REMANDED.