The Seventh Circuit has concluded that it may have jurisdiction to review a hardship determination in the context of a cancellation of removal application as long as the appeal “raises either pure legal questions or the application of a legal standard to undisputed or established facts.” The court did not ultimately have to reach a definitive conclusion on this issue, finding that the petition for review raised pure legal issues. “The first is whether an IJ commits error when he fails to make an express credibility finding, and then holds that gap in the record against the applicant. Such an error would go to the procedural sufficiency of the hearing, which is a legal point. The second question relates to the hardship issue and the IJ’s and Board’s application of the standard for such evidence to the facts before them.”
The court concluded that “when an IJ says nothing about credibility, yet later based his decision on the applicant’s failure to produce evidence supporting otherwise undisputed testimony, he commits procedural error.” “The statute requires the IJ to make an express credibility finding, both to ensure that the evidence is properly assessed, and to facilitate meaningful review by both the Board and the court. Because the IJ did not do so here, we cannot rely on this ground for his decision. Perhaps the Board had a similar concern, as it chose to rest its decision exclusively on the hardship ground.”
With respect to the hardship determination, the court recognized that “the Board does not commit an ‘error of law’ every time an item of evidence is not explicitly considered or is described with imperfect accuracy, but where, as here, some facts important to the subtle determination of exceptional and extremely unusual hardship have been … seriously mischaracterized, we conclude that an error of law has occurred.” “At some point, the individual hardship described by an IJ will diverge too much from the actual hardship shown in the record. The error in such a case is procedural: the failure to take into account the entire record, no matter what the final conclusion might be.” The IJ and the Board cannot simply announce that there is no evidence on a point that is in fact well covered in the record. Between the IEP and Mitten’s testimony, there was ample disinterested evidence on which to base an assessment of the severity of Melanie’s condition. We have no way of knowing whether, had the IJ and Board looked at this evidence, they still would have found that Martinez-Baez failed to establish the requisite hardship to a qualifying relative.”
The full text of Martinez-Baez v. Wilkinson can be found here:
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D02-01/C:20-1078:J:Wood:aut:T:fnOp:N:2654024:S:0
