BIA Clarifies Definition of Step-Child for Immigration Purposes
The Board of Immigration Appeals (BIA) ruled yesterday in Matter of Portillo-Gutierrez, 25 I&N, Dec. 148 (BIA 2009) that a step-child who meets the definition of a child under the immigration laws, is a qualifying relative for establishing exceptional and extremely unusual hardship for the purposes of cancellation of removal as a defense from deportation.
The Immigration Judge who heard Mr. Portillo-Gutierrez’s case found that although he fulfilled the physical presence and good moral character requirements, he didn’t meet the requirement of establishing that his deportation would result in an exceptionally and extremely unusual hardship to his U.S. citizen step-daughter who is a special needs child.
The judge pointed out that because there was no evidence that Mr. Portillo adopted the step-daughter, she would not be considered as his child.
The immigration law defines “child” as any unmarried individual under 21 years of age. The same regulation defines “step-child” as a child who is under 18 years of age when the marriage that created the step-parent/step-child relationship occurred. Additionally, no adoption is required for that step-child to be considered a child for immigration purposes.
The BIA reversed the Immigration Judge’s decision and ordered that the case be sent back to the lower court so that Mr. Portillo can pursue his defense.
