FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS ARNOLDO ALVAREZ FIGUEROA; 

HILDA GUERRA DE ALVAREZ, No. 05-75157

Petitioners, Agency Nos.

v.  A77-852-396

M A77-852-397 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 10, 2008—San Francisco, California

Filed September 10, 2008

Before: A. Wallace Tashima, M. Margaret McKeown, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Tashima

12609
COUNSEL

Philip Barilovits, Dechert LLP, Palo Alto, California, for the

petitioners. 

Julie S. Pfluger, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the

respondent. 

OPINION

TASHIMA, Circuit Judge: 

Luis Arnoldo Alvarez Figueroa and Hilda Guerra de Alvarez (“Petitioners”) are a married couple who concede that they

12612 FIGUEROA v. MUKASEY
are removable aliens. They petition this Court to review the

Board of Immigration Appeals’ (“BIA”) denial of their Application for Cancellation of Removal. Petitioners contend that

the Immigration Judge (“IJ”) applied improper legal standards

in determining whether Petitioners had demonstrated that

their removal would result in a sufficient hardship to their two

citizen-children. Petitioners also argue that their petition

should be granted and the IJ’s opinion vacated because the

IJ’s opinion is indiscernible. The government, on the other

hand, argues that we lack jurisdiction to hear Petitioners’

challenge because Petitioners seek review of a discretionary

determination, which this Court lacks jurisdiction to review,

and because Petitioners failed to exhaust their administrative

remedies with the BIA. For the reasons discussed below, we

hold that Petitioners exhausted their challenges, that we have

jurisdiction to hear their legal challenges, and that the IJ committed legal error. Thus, we grant the petition and remand the

case to the BIA for further proceedings. 

I. JURISDICTION

Petitioners invoke this Court’s jurisdiction pursuant to 8

U.S.C. § 1252(a)(2)(D). The government argues that we lack

jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(B)(i). Because

jurisdiction is disputed, we consider the jurisdictional question in Part IV.A, infra. We, of course, have jurisdiction to

determine our own jurisdiction. See Sareang Ye v. INS, 214

F.3d 1128, 1131 (9th Cir. 2000). 

II. FACTUAL AND PROCEDURAL BACKGROUND

Petitioners, husband and wife, are the parents of three children — Claudia, the eldest child, Louis and Natalie. The latter

two are United States citizens. Petitioners and Claudia are

aliens from Jalisco, Mexico. 

In July 1999, Petitioners filed an Application for Asylum

and Withholding of Removal with the then-Immigration and

FIGUEROA v. MUKASEY 12613
Naturalization Service (“INS”). Shortly after filing that application, Petitioners received from the INS a Notice to Appear

charging that they were subject to removal from the United

States. Petitioners then filed an Application for Cancellation

of Removal and Adjustment of Status. 

Removal proceedings began in September 1999. At the initial hearing, Petitioners conceded removability, and the IJ designated Mexico as the country of removal. The next hearing

was held in February 2003 before Immigration Judge Wendell

A. Hollis (“IJ”). At that hearing, Petitioners withdrew their

application for asylum and pursued only cancellation of

removal and adjustment of status pursuant to the Immigration

and Nationality Act (“INA”) § 240A(b), 8 U.S.C. § 1229b(b).

In the alternative, Petitioners asked for a grant of voluntary

departure pursuant to INA § 240B(b), 8 U.S.C. § 1229c(a). 

In order to show that they were eligible for cancellation of

removal, Petitioners had to demonstrate that: (1) they had

been physically present in the United States for a continuous

period of not less than ten years immediately preceding the

date of their application; (2) they have been persons of good

moral character during that period; (3) they had not been convicted of certain offenses; and (4) removal would result in an

exceptional and extremely unusual hardship to their citizenchildren. See 8 U.S.C. § 1229b(b). 

In support of that showing, Petitioners testified and provided other evidence that they had been physically present in

the United States for a continuous period of not less than ten

years, that they were persons of good moral character, and

that they have never been convicted of a crime. Petitioners

also testified that in the event of their removal, they would

take their children to Mexico. The IJ, in his oral opinion,

found them credible, that they met the continual presence

requirement, that they were of good moral character, and that

they had not been convicted of a crime. 

12614 FIGUEROA v. MUKASEY
To demonstrate that their removal would result in an exceptional and extremely unusual hardship to their two citizenchildren, Dr. Lesleigh Franklin, a clinical psychologist, testified to the effect a move to Mexico would have on Louis, the

then-13-year-old citizen-son. Louis had been diagnosed with

depression and Attention Deficit Hyperactivity Disorder

(“ADHD”), for which he was treated with medication. Louis’

school in the United States accommodated Louis with Special

Education resources. Dr. Franklin testified that Louis needed

support beyond medication in order for him to maintain his

academic grade level, that Louis needed services which may

not be provided in Mexico, and that moving to Mexico would

create enormous emotional problems for Louis. Dr. Frank

Ephram Lopez, a physician and specialist in pediatrics,

reported that in light of Louis’ conditions, it would not be

“medically advisable” to move Louis “to an environment in

which medical treatment and academic support is inferior or

nonexistent.” 

Petitioners also presented evidence that Natalie, the theneight-year-old citizen-daughter, lacked Spanish language

skills, and that she had an eye condition which may develop

into something worse in her adult years, although the only

treatment called for at that time was eyeglasses and future eye

examinations. 

The IJ, in his oral opinion, concluded that Petitioners had

failed to demonstrate the necessary hardship, stating that, in

order to prevail, Petitioners would have to demonstrate that

the hardship would be “unconscionable.” The opinion is, in

part, nonsensical. See, e.g., IJ Opinion at 20 (“The first observation is I cannot believe that Congress intended that Immigration Judges should look upon a child that is perfect with

no health for we all know that every child has medical disorders and be it colds, infections, flu, allergies.”). In part, it is

also incoherent. See, e.g., IJ Opinion at 26 (“But more importantly, this Court in trying to filter the (indiscernible) educational information through the (indiscernible) of the legal

FIGUEROA v. MUKASEY 12615
analysis of exceptional and extremely unusual hardship,

believes that this case falls short.”). 

Petitioners appealed the IJ’s decision to the BIA, and the

BIA adopted and affirmed the IJ’s decision, citing its decision

in In re Burbano, 20 I. & N. Dec. 872 (BIA 1994). Petitioners

then filed a timely petition for review. 

III. STANDARD OF REVIEW

Where the BIA expresses no disagreement with any part of

the IJ’s decision, but instead cites In re Burbano, as it did

here, the BIA adopts the IJ’s decision in its entirety. See

Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir. 2005)

(en banc). A Burbano affirmance signifies that the BIA has

conducted an independent review of the record and has determined that its conclusions are the same as those articulated by

the IJ. See id. at 1040. In such a case, we review the IJ’s decision as if it were the decision of the BIA. See id. at 1040-41.

And, we review legal questions addressed by the IJ de novo.

See Unuakhaulu v. Gonzales, 416 F.3d 931, 937 (9th Cir.

2005). 

IV. ANALYSIS

Petitioners first contend that the IJ erred by applying the

wrong legal standard in requiring Petitioners to show that the

hardship suffered by their citizen-children would be “unconscionable” — a standard expressly rejected in the BIA’s precedential opinions, and by considering only the hardship

currently suffered by the children due to their medical conditions without considering the hardship the children would suffer in the event that their parents were removed. They contend

that the IJ’s opinion should be vacated and remanded for this

reason. Petitioners also contend that this Court should grant

the petition, vacate the IJ’s opinion, and remand to the BIA

on the separate ground that the IJ’s decision is indiscernible.

12616 FIGUEROA v. MUKASEY
The government moved to dismiss this case for want of

jurisdiction, but a motions panel of this Court denied that

motion without prejudice to the argument being renewed

before the merits panel. Thus, the government once again

argues that we lack jurisdiction over this petition on the

ground that Petitioners seek review of a discretionary decision. The government further argues that we lack jurisdiction

because Petitioners failed to exhaust their legal challenges

with the BIA. We first consider the jurisdictional questions,

then address Petitioners’ legal challenges on the merits. 

A. Jurisdiction

1. Exhaustion

As a threshold matter, the government argues that even if

we have jurisdiction as a general matter to review a petitioner’s challenge based upon the IJ’s legal errors, we nevertheless lack jurisdiction in this case because Petitioners failed to

exhaust their legal challenges before the BIA.1

[1] The government of course is correct that we can consider Petitioners’ challenges only if those issues were raised

before the BIA. See Kaganovich v. Gonzales, 470 F.3d 894,

896-97 (9th Cir. 2006). That is, we have jurisdiction to review

a final order of removal and the issues raised in a petition for

review only if “the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1).

Because “the policy underlying the exhaustion requirement is

to give an administrative agency the opportunity to resolve a

controversy or correct its own errors before judicial interven1The government also argues that Petitioners’ contention that the IJ’s

decision does not provide an adequate basis for review because of the

many “indiscernibles” in the opinion is being raised for the first time

before this Court. Because we conclude that we do not need to reach that

issue on the merits, we do not consider whether Petitioners exhausted that

challenge. 

FIGUEROA v. MUKASEY 12617
tion,” Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004), we

do not employ the exhaustion doctrine in a formalistic manner, but rather inquire into whether the issue was before the

BIA such that it had the opportunity to correct its error. The

exhaustion doctrine requires that the petitioner “put the BIA

on notice” as to the specific issues so that the BIA has “an

opportunity to pass on th[ose] issue[s].” Zhang v. Ashcroft,

388 F.3d 713, 721 (9th Cir. 2004) (per curiam). That is why

a general challenge to the IJ’s decision will not satisfy the

exhaustion requirement, Zara, 383 F.3d at 930; however, a

petitioner need not “elaborate on the argument” in their brief,

see Kaganovich, 470 F.3d at 897. The issue need not even be

raised at all in the brief, if it is raised in the notice of appeal.

Id.; Ladha v. INS, 215 F.3d 889, 903 (9th Cir. 2000). So long

as the issue was raised before the BIA, the exhaustion requirement is satisfied. Kaganovich, 470 F.3d at 897; Zhang, 388

F.3d at 721. “[O]ur precedent requires nothing more.”

Kaganovich, 470 F.3d at 897 (quoting Zhang, 388 F.3d at

721). 

[2] Here, the issue of whether the IJ applied the wrong legal

standard was presented to the BIA, and the BIA had the

opportunity to correct its error. The IJ announced in his decision that “[i]n order to establish exceptional and extremely

unusual hardship[,] an applicant for cancellation of removal

must demonstrate that a spouse, parent[,] or child would suffer hardship that is substantially beyond that which would

ordinarily be expected to result from the alien’s deportation

and that such hardship would be unconscionable.” IJ Opinion

at 22 (emphasis added). Petitioners then stated in their notice

of appeal that “[d]enial of Respondent’s Application for Cancellation of Removal violated the statute [and] the regulations” and that “there are also other errors of fact and law

made by the Immigration Judge in his/her decision, which

will be described in the brief that will be submitted with this

appeal upon receipt of the transcript.” In their brief to the

BIA, as the government acknowledges, Petitioners stated that

the exceptional and extremely unusual hardship standard did

12618 FIGUEROA v. MUKASEY
not require them to demonstrate that the hardship was “unconscionable.” The government argues that this was not enough

to exhaust this issue because Petitioners did not “put forward

a developed argument.”

2

 This, of course, is not our standard;

Petitioners need not “argue” anything so long as the issue is

presented to the BIA. Kaganovich, 470 F.3d at 897. 

[3] It’s clear that the issue of the IJ’s erroneous statement

of the law was presented to the BIA. Because the BIA “had

a full opportunity to resolve the controversy or correct its own

errors before judicial intervention,” Petitioners’ challenges to

the IJ’s errors of law were exhausted. Ladha, 215 F.3d at 903

(emphasis added); see also Arreguin-Moreno v. Mukasey, 511

F.3d 1229, 1230 (9th Cir. 2008) (“As we recognized in Abebe,

when the BIA cites Burbano in its decision, all issues presented before the IJ are deemed to have been presented to the

BIA.”). “Where, as here, the agency was aware of the problem, where it did apply its expertise, where it did exercise its

discretion, it is bizarre—and decidedly unfair to petitioner—

for us to refuse to review that decision . . . .” See SocopGonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir. 2001)

(emphasis in original) (quoting Singh-Bhathal v. INS, 170

F.3d 943, 948 (9th Cir. 1999) (Kozinski, J., dissenting in

part)). 

Petitioners have exhausted their administrative remedies. 

2. Jurisdiction over legal challenges

Next, the government argues that we should dismiss the

petition for lack of jurisdiction because Petitioners’ challenge

is nothing more than a challenge to the BIA’s discretionary

determination that Petitioners failed to establish their eligibility for cancellation of removal because they did not demonstrate that their removal to Mexico would cause an

2The government cites Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.

2006), in support of this argument. 

FIGUEROA v. MUKASEY 12619
“exceptional and extremely unusual hardship” to their qualifying relatives. Petitioners, on the other hand, argue that we

do have jurisdiction because they are not challenging the IJ’s

discretionary determinations, but instead are challenging the

IJ’s decision on the ground that the IJ applied the wrong legal

standards. 

Under 8 U.S.C. § 1252, we have jurisdiction to review final

orders of the BIA which call for a petitioner’s removal. See

Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir.

2008). We lack jurisdiction, however, to review the BIA’s

discretionary determination that an alien failed to prove that

her 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.” See Martinez-Rosas v. Gonzales,

424 F.3d 926, 929-30 (9th Cir. 2005) (citing 8 U.S.C.

§ 1252(a)(2)(B)(i)3). 

[4] Notwithstanding the jurisdiction-stripping provision of

8 U.S.C. § 1252(a)(2)(B)(i), the REAL ID Act of 2005

restored judicial review of “constitutional claims or questions

3Section 1252(a)(2)(B)(i) provides: 

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas

corpus provision, and sections 1361 and 1651 of such title, and

except as provided in subparagraph (D), and regardless of

whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review— 

(i) any judgment regarding the granting of relief under section

1182(h), 1182(i), 1229b, 1229c, or 1255 of this title[.] 

Section 1229b pertains to cancellation of removal and adjustment of status for certain nonpermanent residents. See 8 U.S.C. § 1229b. As we have

discussed, to be eligible for an adjustment of status under § 1229b, an

alien must “establish[ ] 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.” Id. § 1229b(b)(1)(D). 

12620 FIGUEROA v. MUKASEY
of law raised upon a petition for review filed with a[ ] . . .

court of appeals.” See Pub. L. No. 109-13, Div. B.,

§ 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005), codified at 8

U.S.C. § 1252(a)(2)(D).4“The plain language of the REAL ID

Act grants jurisdiction to appellate courts to review questions

of law presented in petitions for review of final orders of

removal, even those pertaining to otherwise discretionary

determinations.” Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th

Cir. 2006). We have construed § 1252(a)(2)(D) to provide

jurisdiction for challenges to the agency’s interpretation and

application of § 1229b(b)(1)(D)’s “exceptional and extremely

unusual hardship” standard based upon international law, see

Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1009 (9th Cir.

2005) (holding that we had jurisdiction to consider whether

the BIA’s interpretation of the “exceptional and extremely

unusual hardship” standard violated international law), and

constitutional law, see Martinez-Rosas, 424 F.3d at 930 (holding that we had jurisdiction to consider whether the agency’s

application of the “exceptional and extremely unusual hardship” standard violated the petitioner’s constitutional right to

due process); Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1005

(9th Cir. 2003) (“Whether the BIA’s interpretation of the

hardship standard violates due process is not a ‘judgment

regarding the granting’ of cancellation of removal relief.

Rather, it presents a question of statutory construction.”). 

On the other hand, we have construed 8 U.S.C.

§ 1252(a)(2)(B)(i) and § 1252(a)(2)(D) to preclude review of

a challenge based upon the application of the law to the facts

4Section 1252(a)(2)(D) provides: 

Judicial review of certain legal claims 

Nothing in subparagraph (B) or (C), or in any other provision of

this chapter (other than this section) which limits or eliminates

judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals in accordance

with this section. 

FIGUEROA v. MUKASEY 12621
of the particular case, even when that challenge is cloaked as

a legal challenge. See Martinez-Rosas, 424 F.3d at 930 (concluding that the petitioner’s argument that the IJ violated her

right to due process by misapplying the facts of her case to

applicable law was “nothing more than an argument that the

IJ abused his discretion, a matter over which we have no jurisdiction”). 

Here, Petitioners do not argue that the IJ made a legal error

by misapplying the facts of their case to the applicable law;

rather, they argue that the IJ made legal errors in understanding the meaning of “exceptional and extremely unusual hardship.”5

 While our Circuit has not directly addressed whether

we have jurisdiction over challenges based on the IJ’s

employment of an improper legal standard when construing

the meaning of “exceptional and extremely unusual hardship,”

the Seventh Circuit has: 

Neither the IJ nor the Board thought that his mother’s hardship would be “exceptional and extremely

unusual,” the statutory standard for cancellation of

removal based on hardship to an alien’s immediate

relative. 8 U.S.C. § 1229b(b)(1). We lack jurisdiction to review [petitioner’s] contention that the

agency should have exercised discretion in his favor.

. . . 

The REAL ID Act of 2005[, however,] creates an

exception for constitutional contentions and other

pure issues of law. [Petitioner] does advance [an]

argument[ ] that meet[s] this description. . . that the

immigration judge made a legal error in understand5

See Petitioner’s Brief at 21 (“[T]he Alvarez family maintains that the

IJ . . . made a legal mistake in holding that the hardship standard required

a showing of ‘unconscionability.’ ”); id. at 39-41 (arguing that the IJ failed

to consider the effect that the parents’ removal would have on the citizenchildren). 

12622 FIGUEROA v. MUKASEY
ing the meaning of “exceptional and extremely

unusual hardship.” 

Mireles v. Gonzales, 433 F.3d 965, 968-69 (7th Cir. 2006)

(statutory citation omitted). The Seventh Circuit then concluded that it had jurisdiction to hear the petitioner’s challenge, but ultimately decided that the IJ in that case “used the

right legal standard.” Id. at 969. 

[5] In addition, we have concluded in other contexts that

we have jurisdiction to consider whether the BIA failed to

apply the proper legal standard even when the underlying

decision was a discretionary one. For example, we have held

that we have jurisdiction to consider whether the BIA failed

to apply the correct legal standard in determining whether the

petitioner’s specific crime was a “particularly serious crime,”

even though whether a crime is particularly serious is a discretionary determination which we lack jurisdiction to review.

See Afridi, 442 F.3d at 1217-21. In Afridi, the petitioner

sought review of the BIA’s failure to interpret “particularly

serious crime” consistently with its own precedent. Id. at

1217. We characterized that challenge as one that raised

“questions of statutory construction,” and concluded that

whether the BIA employed an improper standard in making

that determination is a question of law which we have jurisdiction to review. See id. at 1218-19 (“While we cannot

reweigh evidence to determine if the crime was indeed particularly serious, we can determine whether the BIA applied the

correct legal standard in making its determination.”). 

[6] We also have explicitly rejected the view that because

the IJ’s decision is discretionary, it is beyond our review even

if the IJ misapplies the law. In Hernandez v. Aschroft, 345

F.3d 824 (9th Cir. 2003), the government argued that we

lacked jurisdiction to review the BIA’s decision that the nonviabiliy of petitioner’s marriage was a proper basis for denying her adjustment status even though the BIA’s precedent

had long established that the nonviability of a marriage at the

FIGUEROA v. MUKASEY 12623
time of adjustment is not a permissible basis for denying a

petition. Id. at 845-47. The government further argued that we

lacked jurisdiction to review that error because the adjustment

of status is a matter left to the BIA’s discretion. See id. at 845.

Rejecting that argument, we held in Hernandez that we do

have jurisdiction to hear such a challenge: 

The BIA has no discretion to make a decision that

is contrary to law. . . . A nonprecedential decision by

the BIA in defiance of its own precedential case law

simply cannot be classified as discretionary. . . . As

we have explained before, the BIA must exercise its

discretion within the constraints of law. 

. . . . When the BIA acts where it has no legal

authority to do so, it does not make a discretionary

decision, and such a determination is not protected

from judicial review. Because the decision made by

the BIA was contrary to law, it was not discretionary

and jurisdiction exists to review the determination. 

Id. at 846-47 (internal citations, footnote, emendations, and

quotation marks omitted). 

[7] Because Petitioners argue that the IJ failed to follow

BIA precedent and misconstrued the statute when determining

whether Petitioners had demonstrated “exceptional and

extremely unusual hardship” under 8 U.S.C.

§ 1229b(b)(1)(D), we hold that we have jurisdiction to review

their challenge. 

B. Legal Error

As for the merits of Petitioners’ challenge, Petitioners

argue that the IJ made legal errors by requiring Petitioners to

demonstrate that removal would result in an unconscionable

hardship to their citizen-children and by failing to consider

12624 FIGUEROA v. MUKASEY
the hardship the children would suffer in the event of their

parents’ removal.6 We consider each in turn. 

1. Unconscionability

[8] Petitioners argue that the IJ erred as a matter of law by

requiring Petitioners to show that their children “would suffer

hardship substantially beyond that which would ordinarily be

expected to result from the alien’s deportation and that such

hardship would be unconscionable.” Under BIA case law,

Petitioners need not show that the hardship would be unconscionable. Indeed, the BIA has said just the opposite. See In

re Monreal-Aguinaga, 23 I. & N. Dec. 56, 61 (BIA 2001) (en

banc) (“[W]e do not find that an ‘unconscionable’ standard is

an appropriate one to apply in evaluating a respondent’s eligibility for cancellation of removal under section 240A(b) of

the Act.”); see also In re Recinas, 23 I. & N. Dec. 467, 468

(BIA 2002) (“We specifically stated . . . that the alien need

not show that such hardship would be ‘unconscionable.’ ”).

Therefore, the IJ erred in requiring Petitioners to show that

their removal would result in an “unconscionable” hardship to

their citizen-children. 

2. Failure to analyze how removal would affect the

citizen-children

Petitioners next argue that the IJ committed legal error by

focusing only upon the children’s present medical conditions

and by failing to analyze how their parents’ deportation would

affect the citizen-children in the future. 

6Petitioners also argue that the IJ erred when the IJ failed to consider

the most important factors set forth in BIA and Ninth Circuit precedent for

determining whether qualifying citizen-children would suffer “exceptional

and extremely unusual hardship” if their parents were removed. Because

we grant the petition based upon the other challenges, we do not reach the

question of whether the IJ made a legal error by failing to consider certain

factors. 

FIGUEROA v. MUKASEY 12625
[9] Petitioners are correct. The IJ read the statute and BIA

case law as requiring him to determine whether the children

were currently suffering from an exceptional and extremely

unusual hardship, whereas the law requires the IJ to consider

whether the citizen-children would suffer an exceptional and

extremely unusual hardship in the future should their parents

be removed. See 8 U.S.C. § 1229b(b)(1)(D) (stating that the

alien must “establish[ ] that removal would result in exceptional and extremely unusual hardship to the alien’s . . . child,

who is a citizen of the United States”) (emphasis added);

Cabrera-Alvarez, 423 F.3d at 1012 (“If the children will

accompany the removed parent, the agency considers . . .

adverse conditions that [the children] might experience in the

country of removal[.]” (citing In re Monreal, 23 I. & N. Dec.

at 63-64)); In re Recinas, 23 I. & N. Dec. at 468 (“We . . .

noted that, in deciding a cancellation of removal claim, consideration should be given to the age, health, and circumstances of the qualifying family members, including how a

lower standard of living or adverse country conditions in the

country of return might affect those relatives.”); In re Monreal, 23 I. & N. Dec. at 58 (“[A]n alien must show that his

or her qualifying relative would suffer exceptional and

extremely unusual hardship if the alien is deported.”). 

For example, the IJ stated: 

The 8 year old child has astigmatism and has a [sic]

ocular disorder with a history that runs in the family.

The Court cannot find that astigmatism and wearing

eyeglasses which is a common occurrence rises to

the level of exceptional and extremely unusual hardship. I cannot find that this medical condition, not to

take lightly, but people wear glasses because they

can’t see. While it may be a hardship to the person,

I think that Congress intended not to include someone who had an astigmatism. 

12626 FIGUEROA v. MUKASEY
IJ Opinion at 23. As for the son, Louis, the IJ also analyzed

his present condition and not what effect the removal would

have on him: 

L[o]uis is a 13 year old child who has ADHD. . . .

[Louis] receives resources and special help to help

him maintain his grade point average for two hours

and 40 minutes a week. He . . . receives the help of

a medical psychological social worker . . . [T]his

Court does not take lightly the medical diagnosis of

attention deficit disorder, but the Court believes that

when it looks at the services that are provided and

looks at the test scores of this child, and looks at

documents that have been presented, the Court

believes that on this (indiscernible) hardship to

exceptional and extremely unusual hardship, the

Court cannot find that Luis’ condition is compelling

or serious enough to rise to the level of exceptional

and extremely unusual hardship. 

IJ Opinion at 24. 

[10] The IJ has, thus, misconstrued the statute and BIA precedent. The inquiry is whether, in the event of the parents’

removal, the Alvarezes’ daughter’s eye condition would

create an exceptional hardship in the country of return and

whether Louis’ ADHD and depression would create an exceptional hardship for him in the country of return. It is a futureoriented analysis, not an analysis of their present conditions.

Congress did not provide for the exercise of discretion based

upon whether the citizen-children already faced an extremely

unusual hardship as they live in the United States; rather,

Congress intended that discretion in cancellation of removal

cases be exercised on the basis of whether removal would

result in an exceptional and extremely unusual hardship to the

citizen-children. 

“[I]t is clear that BIA does not exercise its discretion when

it acts in a matter contrary to law. Because the BIA did so

FIGUEROA v. MUKASEY 12627
here, we review its determination, reverse its decision, and

remand for further proceedings consistent with the opinion.”

Hernandez, 345 F.3d at 849. 

[11] Because the IJ acted contrary to law by looking only

to the children’s current condition and not to the citizenchildren’s future condition in the event of their parents’

removal in making his hardship determination, we reverse the

BIA’s decision and remand for further proceedings. 

C. Indiscernibility of the IJ’s Opinion

Finally, Petitioners argue that the IJ’s decision should be

vacated because it is so incoherent that its reasoning cannot

be discerned. An indiscernible IJ decision is problematic

because “[w]hen the agency’s reasoning is indiscernible, ‘the

courts cannot exercise their duty of review.’ ” Recinos De

Leon v. Gonzales, 400 F.3d 1185, 1189 (9th Cir. 2005) (quoting SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)). In such

cases, remand is proper. See id. at 1187. 

Because we grant the petition and remand the case based

upon the IJ’s errors of law, we need not decide whether the

indiscernibility of the IJ’s opinion would independently warrant a remand. A review of the IJ’s opinion demonstrates,

however, that large parts of the opinion are incoherent. We

note that, whether it is due to antiquated recording equipment,

an exceptionally heavy caseload, or some other reason, the

deficiencies in the IJ’s opinion certainly have complicated our

review. 

V. CONCLUSION

We hold that we have jurisdiction to hear Petitioners’ legal

challenges and, considering those challenges on the merits,

that the IJ applied the wrong legal standards in making his

decision. We therefore grant the petition for review, reverse

12628 FIGUEROA v. MUKASEY
the decision of the BIA, and remand the case to the BIA for

further proceedings consistent with this opinion. 

PETITION GRANTED, DECISION REVERSED and

REMANDED.

FIGUEROA v. MUKASEY 12629