No. 24-1057

KATHYA ROXANA DUARTE DE MARTINEZ,

Petitioner,

v.

PAMELA BONDI, Attorney General,*

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, and Rikelman, Circuit Judge.**

Randy Olen for petitioner.

Sarai M. Aldana, Attorney, Office of Immigration Litigation, with whom Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, and Michael C. Heyse, Senior Litigation Counsel, Office of Immigration

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Pamela Bondi is automatically substituted for former Attorney General Merrick B. Garland as Respondent. ** Judge Selya heard oral argument in this case and participated in the initial semble thereafter. His death on February 22, 2025, ended his involvement in this case. The remaining two panelists issued this opinion pursuant to 28 U.S.C. § 46(d). Litigation, were on brief, for respondent.

March 19, 2025 BARRON, Chief Judge. Kathya Roxana Duarte De Martinez ("Duarte") petitions for review of an order of the Board of Immigration Appeals ("BIA") that affirmed the denial of her application for cancellation of removal. The petition claims that the BIA erred in concluding that her removal would not result in "exceptional and extremely unusual hardship" to her minor son, who suffers from an intellectual disability. 8 U.S.C. § 1229b(b)(1)(D). For the reasons explained below, we grant the petition and remand the case for further consideration consistent with this decision.

I.

Under 8 U.S.C. § 1229b(b)(1), a noncitizen who has been ordered removed may apply to the Attorney General for cancellation of removal. The Attorney General may grant the application, however, only if the noncitizen shows that she: (1) "has been physically present in the United States for a continuous period of not less than 10 years immediately" before her application for cancellation; (2) "has been a person of good moral character during such period"; (3) "has not been convicted" of certain enumerated offenses; and (4) has "establishe[d] that removal would result in exceptional and extremely unusual hardship to [her] spouse, parent, or child, who is a citizen of the United States or . . . lawfully admitted for permanent residence." 8 U.S.C. § 1229b(b)(1). If the noncitizen makes this showing, then the

- 3 - Attorney General must determine whether to exercise her discretion to cancel the noncitizen's order of removal. 8 C.F.R. § 1240.8(d).

In April 2018, the U.S. Department of Homeland Security initiated removal proceedings against Duarte. She conceded her removability and filed an application for cancellation of removal. To prove the fourth statutory criterion for eligibility, she claimed that her removal would cause "exceptional and extremely unusual hardship" to her nine- and ten-year-old sons, A.M. and J.M., both of whom are U.S. citizens.

In response to Duarte's application, an Immigration Judge ("IJ") held a hearing, in which Duarte and her husband, Juan Francisco Martinez ("Martinez"), testified. The IJ found that they testified "credibly," "candidly[,] and consistently with the written documentary materials."1

To show that several circumstances particular to A.M. would cause him exceptional and extremely unusual hardship if Duarte were removed to El Salvad