Judge John Gleeson
Hernandez came to the United States in 1996. His first child was born in 1998. He married an American citizen in March 2001. They separated in 2006. A second child was born in October 2001 to a third woman. As of 2009 Hernandez lived with a fourth woman, with whom he had a third child. Hernandez conceded removability to an Immigration Judge (IJ) who found he did not show 10 years continuous presence and that the hardship to his citizen wife and children did not merit removal’s cancellation. The Board of Immigration Appeals (BIA) dismissed appeal from the IJ’s decision denying cancellation of removal, and also decided not to reopen his case. The BIA’s decision denying cancellation partly rested on unreviewable exercise of the immigration agency’s discretion. However, the BIA erred by adhering to the IJ’s conclusion that Hernandez did not prove 10 years continuous presence starting in April 1997. Noting Hernandez’s testimony that he never left the country after arriving on July 15, 1996; that he was listed as father on his first child’s 1998 birth certificate; and, other proof of his presence in the country in the 2000s, the circuit concluded that the record showed Hernandez continuously present in the United States from July 1996.
