The Board of Immigration Appeals has sustained DHS's appeal from a grant of cancellation of removal to a Guatemalan father whose six-year-old U.S. citizen daughter would likely enter foster care if he were removed, since the child's mother is incapacitated and her adult half-sister cannot serve as a long-term caregiver.
The Board held that the immigration judge legally erred by finding hardship based on the respondent's choice to leave his daughter in the United States without parental care, reaffirming Matter of Ige and extending its reasoning to cancellation of removal: absent a showing that the child would suffer extreme hardship accompanying the parent abroad, the hardship of remaining behind is generally attributable to parental choice rather than removal. The Board also clarified that care by a responsible non-parent can be sufficient for a qualifying relative child, and remanded for further fact-finding on hardship, including the respondent's failure to submit an affidavit or documentation of care arrangements as required.
The full text of Matter of Lopez-Davila can be found here: https://www.justice.gov/eoir/media/1452826/dl?inline