Adelaido Martin Castillo Carrion, a native and citizen of Mexico, sought review of a decision by the Board of Immigration Appeals. The BIA had affirmed an immigration judge's denial of his application for cancellation of removal. To qualify for cancellation of removal, an applicant must demonstrate that their removal would result in exceptional and extremely unusual hardship to a qualifying relative, such as a U.S. citizen child. The immigration judge and the BIA determined that Castillo Carrion failed to meet this burden. The petitioner specifically argued that the BIA erred in assessing whether his older U.S. citizen son was too old to be considered a qualifying relative for the hardship determination. However, the BIA had also affirmed the denial on an alternative ground: that the petitioner had not made the requisite showing of hardship to either of his two U.S. citizen children, including the son who was 22 years old at the time.
The Ninth Circuit reviewed the case under 8 U.S.C. § 1252. The court noted that when the BIA expresses agreement with the reasoning of the immigration judge, it reviews both decisions. While questions of law are reviewed de novo, the court applies the substantial evidence standard to the agency's determination of exceptional and extremely unusual hardship. The court observed that Castillo Carrion's petition for review argued only that the BIA committed legal error regarding his son's age as a qualifying relative. The court declined to reach that argument because the BIA affirmed the denial on an alternative, independently sufficient ground: the failure to show exceptional and extremely unusual hardship to either child. Under Ninth Circuit precedent, specifically Martinez-Serrano v. INS, issues that are not raised or not supported by argument in the opening brief are forfeited. Because Castillo Carrion failed to challenge the alternative holding regarding the hardship determination in his opening brief, the court held that he forfeited any challenge based on a lack of substantial evidence or otherwise to that alternative holding.
The petition for review is denied, and the temporary administrative stay of removal is lifted. The motion to stay removal is denied. Consequently, the underlying order of removal remains in effect, and the petitioner is subject to removal. The decision leaves open the question of whether the son's age would have been a valid argument had it been properly raised, but the procedural forfeiture bars the challenge in this instance.
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