Stepchild Qualifies As Relative for Purposes of Cancellation of Removal

Matter of Portillo-Gutierrez (BIA 2009)

The Board of Immigration Appeals ruled that a stepchild meets the definition of a child for purposes of qualifying for cancellation of removal.  This should come as a relief to many persons who are now in the country unlawfully, because cancellation of removal is one of the few avenues for legalization available to them.  It is difficult to qualify for, and nearly impossible to have granted because of the high standards which must be met.  It is truly the remedy of last resort because the only time a person may petition for it is during removal proceedings.  Because it is oftentimes the only form of relief available to such a person, cancellation of removal is still one of the most common petitions in immigration court.

Gutierrez, the applicant in this case was from Mexico.  He entered the U.S. in 1996 without being lawfully admitted or paroled.  In 2007, he married a lawful permanent resident.  He and his wife have two sons together.  His wife has two other children from a prior relationship, one of whom has special needs.  Gutierrez is the primary caretaker of the children.  Since marrying his wife, he never moved to adopt his stepchildren.

Gutierrez applied for cancellation of removal.  Among other things, he must establish that his removal from the U.S. would create exceptional and extremely unusual hardship to a qualifying relative.  For the purposes of the immigration regulations, a qualifying relative may be a “child.”  The question presented in this case was whether “child” meant the Gutierrez’s own blood children or may it include his stepchildren.  In this situation, the latter would be more helpful to him since his stepchild has special needs.  My experience in handling cancellation of removal cases is that a child with special needs is a very good way to meet the exceptional and extremely unusual hardship to a family member requirement.  Immigrant courts are reluctant to send special needs children to countries which are ill equipped to deal with them.  The courts understand the resources available to handle children with special needs are scant in most developing countries such as Mexico.  For this reason, the courts are more likely to permit a parent of a special needs child to remain in the U.S.

The immigration judge who ruled on the Gutierrez’s case did not consider his stepchild to be a qualifying relative because he never adopted the child.  The BIA overruled the judge because he created a requirement that did not exist.  The immigration laws define a “child” as “an unmarried person under twenty-one years of age.”  The definition includes a stepchild, as long as the child had not reached the age of eighteen years at the time of the marriage which created the stepchild relationship.  There is no requirement that the stepchild be legally adopted.  Because Gutierrez married his wife while his stepchild was still a minor, the stepchild was considered a qualifying “child” for purposes of cancellation of removal.  Thus, he may use the special needs of his stepchild as a basis for establishing exceptional and extremely unusual hardship to a family member.

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