PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                  No. 08-4598


        BLANCA BARRALES PAREJA,

                              Petitioner
                        v.

ATTORNEY GENERAL OF THE UNITED STATES,

                              Respondent


         On Petition for Review from an
    Order of the Board of Immigration Appeals
            (Board No. A098-632-579)
  Immigration Judge: Honorable Eugene Pugliese


            Argued June 23, 2010
  Before: SMITH, FISHER and GREENBERG,
               Circuit Judges.

              (Filed: July 29, 2010)
David A. Isaacson (Argued)
2 Wall Street, 6th Floor
New York, NY 10005

       Counsel for Petitioner

Linda Y. Cheng (Argued)
W. Daniel Shieh
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

       Counsel for Respondent


                 OPINION OF THE COURT


FISHER, Circuit Judge.

        Blanca Barrales Pareja, a Mexican citizen and native,
petitions for review of a final order of removal of the Board of
Immigration Appeals (“BIA”). We will grant the petition in
part, deny it in part, and dismiss it in part and remand this case
to the BIA with instructions.

                                I.



                                2
       In March 1991, when she was thirteen years old, Pareja
entered the United States without inspection to reunite with her
parents, who had previously come to the United States from
Mexico. In December 2001, Pareja gave birth to a daughter,
Joanne, with Cesar Garcia. Joanne is a United States citizen and
has never been to Mexico. In 2005, Pareja and Garcia’s
relationship ended. Garcia, who is not a United States citizen,
provides child support for Joanne and sees her about twice a
month. For the last several years, Pareja has worked for the
Sheehy family in Colts Neck, New Jersey, performing childcare
and housework.1 Pareja and Joanne live with the Sheehys in
their home. Joanne attends a local public school.

       Pareja received a Notice to Appear in April 2006,
charging that she was removable under 8 U.S.C.
§ 1182(a)(6)(A)(i).2 Pareja conceded removability but applied
for cancellation of removal under 8 U.S.C. § 1229b(b)(1). In
September 2007, an Immigration Judge (“IJ”) held a hearing at
which Pareja spoke about her background and life in the United
States and told the IJ that Joanne would accompany her if she


       1
         The transcript of the proceeding before the IJ spells the
family’s name as “Shihi,” but Pareja tells us in her brief that the
name is actually spelled “Sheehy,” and the record elsewhere so
reflects. We adopt the latter spelling.
       2
        Title 8 U.S.C. § 1182(a)(6)(A)(i) states that “[a]n alien
present in the United States without being admitted or paroled,
or who arrives in the United States at any time or place other
than as designated by the Attorney General, is inadmissible.”

                                3
were ordered to return to Mexico. The IJ also heard from Dr.
James Kilroy, a clinical psychologist who testified on Pareja’s
behalf that Joanne is emotionally attached to her mother. Mrs.
Sheehy also appeared on Pareja’s behalf, testifying that Pareja
is loyal and professional and that Joanne becomes anxious when
her mother is not present.

        After the hearing, the IJ denied Pareja’s application in an
oral decision, concluding that Pareja did not prove that her
removal would result in “exceptional and extremely unusual
hardship” to Joanne, the fourth requirement for establishing
eligibility for cancellation of removal.           See 8 U.S.C.
§ 1229b(b)(1)(D). Relying on the BIA’s decision in Matter of
Monreal, 23 I. & N. Dec. 56 (BIA 2001) (en banc), the IJ
determined that Pareja’s proffer – consisting mainly of evidence
of Mexico’s inferior living conditions and lesser educational
opportunities as well as Joanne’s alleged separation anxiety
when her mother is absent – failed to demonstrate that the
hardship to Joanne would be “substantially beyond that which
would ordinarily be expected to result” from Pareja’s removal.
(App. 62 (quotation marks and citation omitted).) The IJ found
Pareja’s proffer similar to that of the petitioner in Matter of
Andazola, 23 I. & N. Dec. 319 (B.I.A. 2002) (en banc), where
the BIA denied cancellation of removal to a single Mexican
mother of two children with United States citizenship. The IJ
contrasted Pareja’s case from Matter of Recinas, 23 I. & N. Dec.
467 (B.I.A. 2002) (en banc), where the BIA granted cancellation
of removal to a single Mexican mother of six children, four of
whom were United States citizens. On the basis of this case
law, the IJ denied Pareja’s application for cancellation of
removal and granted the government’s application for voluntary

                                4
departure. The IJ further ordered Pareja to be removed if she
failed to depart voluntarily within a time certain. Pareja
appealed the IJ’s decision to the BIA.

       In October 2008, the BIA dismissed Pareja’s appeal. The
BIA found no fault with the IJ’s factual findings and agreed that
Pareja had not met her evidentiary burden of demonstrating
“exceptional and extremely unusual hardship” to Joanne, though
the BIA thought this “a sympathetic case.” (App. 4.) In
summarized form, the BIA determined that Joanne, Pareja’s lone
qualifying relative for ha rdship purpose s unde r
§ 1229b(b)(1)(D), had no extraordinary emotional or educational
needs; that Joanne’s separation anxiety was not a relevant
consideration given Pareja’s testimony that Joanne would
accompany her to Mexico in the event of removal; and that
Pareja and Joanne, despite some potential difficulty, were
financially able to return to Mexico and to establish themselves
there. In a footnote, the BIA summarily declined to revisit its
rulings in Matter of Recinas, Matter of Andazola, and Matter of
Monreal, which Pareja had attacked as wrongly decided. The
BIA also rejected Pareja’s efforts to establish parallels between
her case and Matter of Recinas and to distinguish her case from
the BIA’s “seminal interpretations,” (App. 4 (quotation marks
and citation omitted)), of the hardship standard articulated in
Matter of Andazola and Matter of Monreal. Accordingly, the
BIA permitted Pareja to depart voluntarily within sixty days
from the date of its order. Failing her voluntary departure
within that time frame, the BIA ordered that she be removed to
Mexico.



                               5
        Pareja has filed a timely petition for review of the BIA’s
decision. After the petition was filed, a panel of this Court
granted Pareja’s motion for a stay of voluntary departure and a
stay of removal. The government thereafter filed a motion to
dismiss the petition for lack of jurisdiction; that motion was
referred to the merits panel. In its brief, the government
reiterates its position that this Court lacks jurisdiction over the
whole of Pareja’s petition.

                                II.

A.     Legislative Background

       Before addressing the government’s jurisdictional
challenge or the merits of any portion of Pareja’s petition over
which we have jurisdiction, it is useful at the outset to briefly
review the historical backdrop of the legislation at issue here.

       Under the Immigration and Nationality Act of 1952
(“INA”), an alien placed in deportation proceedings could
previously seek relief from deportation by applying for what was
called suspension of deportation. 8 U.S.C § 1254(a)(1) (1952).
An alien could obtain such relief by showing, among other
things, that her deportation “would result in exceptional and
extremely unusual hardship to the alien or” certain qualifying
relatives. 

§ 1254(a)(1) in 1962 by
replacing the “exceptional and extremely unusual hardship”
language with “extreme hardship.” 8 U.S.C § 1254(a)(1) (Supp.
IV 1959-62) (repealed 1996).



                                6
       In 1996, Congress passed the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L.
No. 104-208, 110 Stat. 3009 (1996). In IIRIRA, Congress,
among other things, did away with “suspension of deportation,”
substituted it with a form of relief called “cancellation of
removal,” and changed the “extreme hardship” standard back to
“exceptional and extremely unusual hardship.” Aoun v. INS,

, 506 (6th Cir. 2003); Hernandez-Mezquita v.
Ashcroft, 

, 1162 (9th Cir. 2002); Angel-Ramos v.
Reno, 

, 945 (7th Cir. 2000); Alvidres-Reyes v.
Reno, 

, 202 (5th Cir. 1999). Congress also limited
the hardship inquiry to whether the alien could show hardship to
a qualifying relative alone; hardship to the alien herself is no
longer a relevant factor. 8 U.S.C. § 1229b(b)(1)(D); see
Karageorgious v. Ashcroft, 

, 154 n.4 (2d Cir.
2004); 

; 

.

        Under the law as it now stands, then, an alien may obtain
cancellation of removal if she prevails at both steps of what
§ 1229b(b)(1) in effect presents as a two-step process. See
Romero-Torres v. Ashcroft, 

, 889 (9th Cir. 2003).
First, the alien shoulders the burden of showing that she is
eligible for cancellation of removal. See, e.g., Okeke v.
Gonzales, 

, 588 & n.5 (3d Cir. 2005). An alien is
eligible if she

       (A) has been physically present in the United
       States for a continuous period of not less than 10
       years immediately preceding the date of [her]
       application; (B) has been a person of good moral

                               7
       character during such period; (C) has not been
       convicted of an offense under . . . [8 U.S.C. §
       1182(a)(2), 1227(a)(2), or 1227(a)(3)] . . .; and
       (D) establishes that removal would result in
       exceptional and extremely unusual hardship to the
       alien’s spouse, parent, or child, who is a citizen of
       the United States or an alien lawfully admitted for
       permanent residence.

8 U.S.C § 1229b(b)(1).

        Second, if the alien meets her burden of establishing
eligibility for cancellation of removal, the Attorney General
may, in the exercise of his discretion, cancel the alien’s removal.
8 U.S.C. § 1229b(b)(1); see Mendez-Reyes v. Att’y Gen. of the
United States, 

, 189 (3d Cir. 2005).

        In this case, the BIA did not reach the second step of the
cancellation-of-removal inquiry because it denied Pareja relief
based on its conclusion that she did not demonstrate that she was
eligible for cancellation of removal. The parties do not dispute
that the first three criteria of § 1229b(b)(1) are met; only the
fourth criterion is in play. As noted, the fourth criterion requires
that the alien “establish[] that removal would result in
exceptional and extremely unusual hardship to” a qualifying
relative. 8 U.S.C. § 1229b(b)(1)(D). There is no dispute that
Joanne is Pareja’s only qualifying relative.




                                 8
B.     Jurisdiction

       Before we reach the merits of Pareja’s petition, we must
first address the government’s argument that we lack
jurisdiction over any portion of her petition.3 See, e.g., Jahjaga


       3
        Other than a fleeting reference to Chevron deference and
citations to cases that support its cause only in the abstract, the
government elected not to cover its bases by rebutting the merits
of almost any portion of Pareja’s petition. The government
evidently presumed that we would agree that we lack
jurisdiction over the entirety of her petition. At oral argument,
we brought the deficiencies in the government’s brief to the
attention of the attorney for the government and asked her to
convey our concerns to her superiors. We trust she has done so,
but we think our message is important enough to deserve a
written reminder. The government has every right – a duty,
even – to tell us when it believes we lack jurisdiction over a
particular case. But when the government seeks to remove an
individual from this country – a result the Supreme Court has
recognized as “a drastic measure and at times the equivalent of
banishment or exile,” Fong Haw Tan v. Phelan, 

, 10
(1948) (citation omitted) – it seems to us that the government
has an especial obligation to explain, in the event its
jurisdictional challenge fails, why the petitioner is wrong on the
merits. The government left that obligation largely unfulfilled
here. Quite recently, we confronted a similar circumstance and
underscored the importance of following Rule 31 of the Federal
Rules of Appellate Procedure. Leslie v. Att’y Gen. of the United
States, No. 08-3180, 

, at *4 n.2

                                9
v. Att’y Gen. of the United States, 

, 82 (3d Cir.
2008); Feliz Debeato v. Att’y Gen. of the United States, 

, 233 (3d Cir. 2007).

         This Court lacks jurisdiction to review the denial of
discretionary relief, including cancellation of removal. 8 U.S.C.
§ 1252(a)(2)(B)(i). We may, however, review “constitutional
claims or questions of law raised upon a petition for review
. . . .” 

Our jurisdiction in that respect is
“narrowly circumscribed” in that it is limited to “colorable
claims or questions of law.” Cospito v. Att’y Gen. of the United
States, 

, 170 (3d Cir. 2008) (per curiam) (quotation
marks and citation omitted). To determine whether a claim is
colorable, we ask whether “it is immaterial and made solely for
the purpose of obtaining jurisdiction or is wholly insubstantial
and frivolous.” Arbaugh v. Y & H Corp., 

, 513
n.10 (2006) (internal quotation marks and citations omitted). “A
petition for review that fails to present . . . a colorable claim is
nothing more than an argument that the IJ abused his discretion
in determining that the petitioner did not meet the requirement
of exceptional and extremely unusual hardship, which is a
matter over which we have no jurisdiction.” Mendez-Castro v.
Mukasey, 

, 978 (9th Cir. 2009) (internal quotation
marks and citation omitted). The question of our jurisdiction
over a colorable legal claim does not turn on whether that claim
is ultimately meritorious. Barco-Sandoval v. Gonzales, 516


(3d Cir. July 8, 2010). In Leslie, we also made clear that a
failure to follow that rule could result in the forfeiture of a
party’s argument. That admonition is equally applicable here.

                                

, 41 n.6 (2d Cir. 2007). If a claim is frivolous, however,
we lack jurisdiction to review it, no matter its label. Jarbough
v. Att’y Gen. of the United States, 

, 189 (3d Cir.
2007). In other words, a party may not dress up a claim with
legal clothing to invoke this Court’s jurisdiction. 

identified four main issues for our resolution.
We address our jurisdiction over each one separately. See Xiao
Ji Chen v. U.S. Dep’t of Justice, 

, 329 (2d Cir.
2006) (a court “need[s] to study the arguments asserted” to
assess its jurisdiction).

       1.     Whether Matter         of   Monreal     should    be
              overruled

        Pareja first claims that the BIA’s decision in Matter of
Monreal should be overruled because the BIA misinterpreted
the phrase “exceptional and extremely unusual hardship” in
IIRIRA. We have squarely held that because “[t]he decision
whether an alien meets the hardship requirement in 8 U.S.C.
§ 1229b is . . . a discretionary judgment,” we lack jurisdiction to
review such a decision. Mendez-Moranchel v. Ashcroft, 

, 179 (3d Cir. 2003). In the government’s view,
Pareja’s attack on the legal underpinnings of Monreal is in
reality an attack on the BIA’s discretionary weighing of her
evidence. That view is misguided.

      While the government is certainly correct that we may
not rehash the BIA’s hardship calculation, the government
mischaracterizes Pareja’s attack on Monreal. Pareja does not
contend that the BIA gave short shrift to her evidence or failed

                                11
to adequately account for the hardship she alleges Joanne would
suffer in the event of removal. Instead, Pareja is challenging the
legal standard the BIA uses to determine if an alien in her
circumstances has demonstrated eligibility for cancellation of
removal. Significantly, that challenge requires an analysis of
Monreal’s interpretation of a congressional act and, by
extension, of that act itself. Accordingly, Pareja’s challenge is
clearly a legal question. Cf. Avendano-Espejo v. Dep’t of
Homeland Sec., 

, 505 (2d Cir. 2006) (per curiam)
(“[A]bsent a specific issue of statutory construction, the term
‘questions of law’ in 8 U.S.C. § 1252(a)(2)(D) does not provide
our Court with jurisdiction to review a petitioner’s challenge to
a decision firmly committed by statute to the discretion of the
Attorney General.” (emphasis added and quotation marks and
citations omitted)). It is just as clearly “colorable” because it
relates solely to the nondiscretionary question whether the BIA’s
binding legal standards are correct. Cf. Martinez-Rosas v.
Gonzales, 

, 930 (9th Cir. 2005) (“[T]he alleged
violation need not be substantial, but the claim must have some
possible validity.” (quotation marks and citation omitted)); see,
e.g., Khan v. Gonzales, 

, 35 (2d Cir. 2007)
(“[D]espite the fact that Khan’s legal argument is without merit,
because Khan raises a ‘question of law,’ we conclude that we
have jurisdiction to review his claim.”). As such, Pareja’s
challenge in this respect falls neatly within this Court’s
“narrowly circumscribed” jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D).

       2.     Whether the BIA erred by attaching weight to
              the number of qualifying relatives in its
              hardship determination

                               12
        The second issue Pareja submits for our review relates to
the distinction the BIA drew between her case and its decision
in Matter of Recinas. As noted, § 1229b(b)(1)(D) provides that
an alien’s eligibility for cancellation of removal depends in part
on whether she establishes hardship to her “spouse, parent, or
child, who is a citizen of the United States or an alien lawfully
admitted for permanent residence.” 8 U.S.C. § 1229b(b)(1)(D).
In its decision, the BIA reasoned that, whereas Pareja had only
one qualifying relative (Joanne), the alien in its decision in
Matter of Recinas had four such relatives. Pareja argues that
because § 1229b(b)(1)(D) refers to only one qualifying relative,
the BIA erred in measuring her hardship showing by reference
to the number of her qualifying relatives.

        While a hardship determination under § 1229b(b)(1)(D),
like the ultimate decision to grant or deny cancellation of
removal, is discretionary and therefore beyond our jurisdictional
purview, see 

, where the
BIA is alleged to have made a hardship determination based on
“an erroneous legal standard” or “on fact-finding which is
flawed by an error of law,” Mendez v. Holder, 

,
322 (2d Cir. 2009) (per curiam) (internal quotation marks and
citation omitted), our jurisdiction to review that determination
is secure. That is precisely the nature of Pareja’s claim. She
posits that the BIA misinterpreted the language of
§ 1229b(b)(1)(D) itself, not that the BIA misapplied that
provision to the facts of her case. We therefore have jurisdiction
to review this claim, as it clearly raises a colorable question of
law. Cf. Gomez-Perez v. Holder, 

, 372-73 (8th Cir.
2009) (court had jurisdiction where alien argued that the BIA
“applied an incorrect legal standard by focusing on the present

                               13
circumstances of his children rather than on the future hardships
that they would face if he were removed” because that argument
raised a question of law); Figueroa v. Mukasey, 

,
492, 495-96 (9th Cir. 2008) (jurisdiction existed to review
alien’s claim that the IJ applied incorrect legal standard “by
considering only the hardship currently suffered by the children
. . . without considering the hardship the children would suffer
in the event that their parents were removed”); Mireles v.
Gonzales, 

, 969 (7th Cir. 2006) (court had
jurisdiction over argument “that the immigration judge made a
legal error in understanding the meaning of ‘exceptional and
extremely unusual hardship’”).

       3.     Whether the BIA erroneously made a hardship
              determination on the assumption that Joanne
              would return to Mexico with her mother

       Pareja’s third argument is that the BIA “evaluated the
level of hardship to Joanne based upon the assumption that she
would return to Mexico with her mother, rather than the
assumption that Joanne would remain in the United States . . . .”
(Pet’r’s Br. 50.) Pareja contends that we have jurisdiction to
review this argument because, in her view, it implicates a
constitutional question. Specifically, she asserts, relying on pre-
IIRIRA Sixth Circuit case law, that the BIA improperly failed to
account for the hardship Joanne would suffer if she were forced
to relinquish what Pareja characterizes as her daughter’s
constitutional right, as a United States citizen, to stay in this
country. We are unconvinced.



                                14
        As a preliminary matter, Pareja’s assertion that the BIA
“assumed” that Joanne would return with her to Mexico instead
of staying in the United States is wholly undermined by the
record. Pareja herself affirmatively represented in sworn
testimony before the IJ that her daughter would leave with her
in the event of removal. (E.g., App. 160 (answering “Yes” to
the question, “If you had to return to Mexico, would your
daughter go with you?”).) Her employer, Mrs. Sheehy, said the
same thing in the affidavit she submitted to the IJ on Pareja’s
behalf. (App. 270 (“If [Pareja] is sent back to Mexico, Joanne
will most definitely go with her.”).) In light of this evidence, the
BIA did not, as Pareja maintains, “presum[e] [the] exile of an
American citizen . . . .” (Pet’r’s Br. 54.) Rather, based on
Pareja’s own sworn representations, the BIA concluded that it
did not need to address Pareja’s “arguments that assume [that
her] removal would result in her separation from Joanne.”
(App. 3.) We see no error in the BIA’s having taken Pareja at
her word, especially when the record contains no evidence
contradicting her testimony.4


       4
         Although Pareja suggests that, even if she returns to
Mexico, Joanne could hypothetically stay in the United States,
never in these proceedings, including in her petition for review,
has Pareja refuted her own testimony that Joanne would in fact
return to Mexico with her in the event of removal. Furthermore,
because Pareja told the BIA in no uncertain terms – and in
uncontroverted testimony – that Joanne would accompany her
to Mexico, we need not resolve her related claim that
§ 1229b(b)(1)(D) imposes a presumption that an alien’s United
States citizen child will remain in the United States if her alien

                                15
        Furthermore, Pareja’s reliance on the so-called doctrine
of unconstitutional conditions is misplaced. In basic terms, that
doctrine prohibits the government from conditioning the
discretionary grant of a benefit on an individual’s waiver of a
constitutional right. See Dolan v. City of Tigard, 

,
385 (1994); Frost & Frost Trucking Co. v. Railroad Com. of
Cal., 

, 593-94 (1926). Even assuming that that
doctrine applies here and that Joanne has a constitutional right
to stay in the United States – and we express no view on either
point – our precedent makes plain that the BIA’s order of
removal as to her mother would not infringe on any such right.
See Acosta v. Gaffney, 

, 1158 (3d Cir. 1977)
(rejecting a claim that a minor United States citizen’s
constitutional right to stay in this country was violated by her
alien parents’ deportation because “her return to Colombia with
her parents, if they decide to take her with them as doubtless
they will, will merely postpone, but not bar, her residence in the
United States if she should ultimately choose to live here”); see
also Gallanosa v. United States, 

, 120 (4th Cir.


parent is removed. We note, at any rate, that the statute speaks
only in terms of “exceptional and extremely unusual hardship”
to the qualifying relative; the statute’s plain language nowhere
intimates the presumption that Pareja urges. We do not
necessarily foreclose the possibility that an alien could press the
argument Pareja seeks to advance here if the BIA discounted the
hardship to an alien’s United States citizen child based on pure
speculation that the child would leave the country with her alien
parent. Significantly, that circumstance is not attendant in this
case.

                                16
1986) (“The courts of appeals . . . have uniformly held that
deportation of the alien parents does not violate any
constitutional rights of the citizen children.” (collecting cases));
Schleiffer v. Meyers, 

, 662-63 & n.8 (7th Cir. 1981)
(same).

       Accordingly, this issue does not raise a colorable legal
question, and we therefore lack jurisdiction to consider it.

       4.      Whether Mendez-Moranchel v. Ashcroft should
               be overruled

       Finally, Pareja argues that we should overrule our
decision in Mendez-Moranchel v. 

,
where we held that the BIA’s determination of whether an alien
has met the “exceptional and extremely unusual hardship”
standard in the cancellation of removal statute is discretionary
and therefore beyond our jurisdictional mandate. Pareja
concedes that she advances this argument only to preserve it for
en banc or Supreme Court review. Put another way, she
acknowledges that we cannot grant her the relief she requests.
Indeed, this panel cannot overturn a prior panel’s precedential
opinion. Third Circuit Internal Operating Procedure 9.1; see
Mariana v. Fisher, 

, 201 (3d Cir. 2003). As such,
while this claim may properly be described as legal, it is not
colorable because it is either “made solely for the purpose of
obtaining jurisdiction,” 

n.10, or has no
“possible validity,” 

(quotation




                                17
marks and citation omitted), and therefore lies outside our
jurisdictional bounds.5

C.     Merits

       Having determined that we have jurisdiction over two of
the issues Pareja has submitted for our review, we now turn to
the merits of those issues.

       1.     Whether Matter       of   Monreal    should    be
              overruled

       Pareja urges us to “overrule” the BIA’s en banc decision
in Matter of Monreal based on its adoption of what Pareja
characterizes as an erroneous interpretation of the “exceptional
and extremely unusual hardship” standard.




       5
        It bears mentioning that Mendez-Moranchel is fully
consonant with other circuits’ case law on the question of an
appellate court’s jurisdiction to review the BIA’s discretionary
hardship determination. See, e.g., De Lourdes Castro De
Mercado v. Mukasey, 

, 815 (9th Cir. 2009);
Martinez v. Att’y Gen. of the United States, 

,
1221-22 (11th Cir. 2006); Meraz-Reyes v. Gonzales, 

, 843 (8th Cir. 2006); De La Vega v. Gonzales, 

, 145-46 (2d Cir. 2006); Mireles v. Gonzales, 

,
968-69 (7th Cir. 2006); Rueda v. Ashcroft, 

, 831
(5th Cir. 2004) (per curiam).

                              18
        In Matter of Monreal, the BIA addressed the meaning of
the “exceptional and extremely unusual hardship” standard in
IIRIRA. The BIA began its analysis by comparing that standard
to the “extreme hardship” standard in the pre-IIRIRA law. The
BIA stated that it was “aware of the general rule that when
‘Congress adopts a new law incorporating sections of a prior
law, Congress normally can be presumed to have had knowledge
of the interpretation given to the incorporated law, at least
insofar as it affects the new statute.’” Monreal, 23 I. & N. Dec.
at 59 (quoting Lorillard v. Pons, 

, 581 (1978))
(other citation omitted). The BIA decided not to apply that
presumption to IIRIRA on the ground that, while the
“exceptional and extremely unusual hardship” phrase was
included in the INA of 1952, only that phrase, as opposed to a
section of prior law, had been imported into IIRIRA. Therefore,
the BIA studied how that phrase had been interpreted before
IIRIRA’s enactment. The BIA noted that, under the 1952 law,
that phrase applied to all applicants – not just their qualifying
relatives – and that the legislative history evinced congressional
intent to extend suspension of deportation only in
“unconscionable” cases. The BIA declined to apply such a high
standard to cancellation of removal, however, on the ground
that, among other things, there was nothing in IIRIRA’s
legislative history to support the application of such a standard.
The BIA was also unpersuaded by the interpretation of the
phrase in cases from 1953 to 1957, before the INA was amended
in 1962, reasoning that “th[is] case law cover[ed] only that
period of time when the ‘exceptional and extremely unusual
hardship’ standard was applied to all applicants for suspension
of deportation, predating the period during which the standard
was required principally for criminal aliens,” and that “in many

                               19
of these cases the focus was on hardship to the alien, a hardship
element that cannot even be considered under the present
statute.” 

(citations omitted). Finally, the BIA pointed
out that “this case law arose in a different overall statutory
context and obviously significantly predated the decades of
interpretation of the ‘extreme hardship’ standard that culminated
in” the 1996 amendments. 

of these considerations, the BIA held that
“although both the relevant legislative history from the 1952 Act
and the old case law . . . provide an historical context for
evaluating the ‘exceptional and extremely unusual hardship’
standard in applications for cancellation of removal, our
principal focus is on the statutory language itself and the
legislative history of the revisions that were enacted in 1996.”

Using dictionary definitions to understand and to
distinguish the old and the new standards, the BIA concluded
that “[t]he [exceptional and extremely unusual hardship]
standard requires a showing of hardship beyond that which has
historically been required in suspension of deportation cases
involving the ‘extreme hardship’ standard.” Id.6


       6
        After determining that the new phrase required a
heightened showing by aliens seeking cancellation of removal,
the BIA examined what specific factors it would consider to
determine if an alien’s showing was sufficient. The BIA saw no
reason to abandon the factors it had consistently considered
under the suspension of deportation statute’s “extreme hardship”
standard, but reasoned that it would weigh those factors
“according to the higher standard required for cancellation of

                               20
       BIA Member Rosenberg concurred in part and dissented
in part. While she agreed with the majority that the plain
language of the “exceptional and extremely unusual hardship”
standard suggested “some type of difficulty or burden that is
uncommon, rare, or different from the norm,” 

(Rosenberg, Board Member, concurring and dissenting),
Member Rosenberg disagreed with the majority’s decision not
to interpret that phrase in line with BIA precedents from the
1950s. Unlike the majority, she saw no basis for departing from
the rule announced in Lorillard v. Pons “merely because
Congress adopted only a phrase and not a whole section of prior


removal.” Monreal, 23 I. & N. Dec. at 63. The BIA resolved to
exclude from consideration any factors related to the alien
herself, as the new statute made clear that only hardship to the
qualifying relative, as opposed to the alien herself, could be
considered. Thus, the BIA listed the following factors to be
considered in determining whether an alien has adequately
shown hardship to a qualifying relative: “the ages, health, and
circumstances of qualifying lawful permanent resident[s] and
United States citizen relatives.” 

also said that it
would take into account, for example, a qualifying child’s health
problems or compelling school needs, as well as living
conditions in the country of return. In the end, the BIA wrote,
no one factor would be dispositive. Instead, “all hardship
factors should be considered in the aggregate when assessing
exceptional and extremely unusual hardship.” 

(citation
omitted). Although Pareja discusses these factors in passing in
her brief, we do not understand her specifically to fault the
BIA’s enumeration or qualification of these factors.

                               21
law.”     

Member, concurring and
dissenting) (citations omitted). In her view, because the 1996
amendments reflected Congress’s awareness of the case law
interpreting the old hardship standard, the majority’s rejection
of that case law was inappropriate.

        We ordinarily exercise plenary review over the BIA’s
legal determinations. See, e.g., Yusupov v. Att’y Gen. of the
United States, 

, 197 (3d Cir. 2008). However,
where, as here, “we are called upon to interpret a statute that is
within the scope of an agency’s rulemaking and lawmaking
authority, our inquiry implicates the principles set forth in
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 

(1984).” Lin-Zheng v. Att’y Gen. of the
United States, 

, 155 (3d Cir. 2009) (en banc)
(citation omitted). “Chevron deference is required when an
agency construes or interprets a statute that it administers and
the agency’s interpretation is based on a permissible
interpretation of the statute.” Mehboob v. Att’y Gen. of the
United States, 

, 275 (3d Cir. 2008) (internal
quotation marks and citation omitted).

        “Chevron deference involves a two-step inquiry.”

. “[T]he court asks first if the statute
is silent or ambiguous with respect to the specific issue of law
in the case, using traditional tools of statutory construction to
determine whether Congress had an intention on the precise
question at issue.” Augustin v. Att’y Gen. of the United States,

, 268 (3d Cir. 2008) (internal quotation marks,
alteration and citation omitted). If the answer is affirmative,
“the inquiry ends, as both the agency and the court must give

                               22
effect to the plain language of the statute.” 

(citation omitted). However, “[i]f Congress’s intention
is not evident, the court moves to the second step, where the
question for the court is whether the agency’s answer is based
on a permissible construction of the statute.” 

(internal quotation marks, other alteration and citation
omitted). “When Congress has left a gap in a statute, implicitly
leaving the administering agency responsible for filling that gap,
a court may not substitute its own construction of a statutory
provision for a reasonable interpretation made by the
administrator of an agency.” 

marks and
citation omitted).

       We begin with Chevron step one. “A basic tenet of
statutory construction is that we must begin with the assumption
that the ordinary meaning of statutory language accurately
expresses the legislative purpose.” 

-
56 (internal quotation marks, alterations and citations omitted).
As the BIA recognized, the INA does not define “exceptional
and extremely unusual hardship,” and we think it beyond
peradventure that reasonable people could differ on the meaning
of that phrase. Cf. INS v. Jong Ha Wang, 

, 144
(1981) (per curiam) (concluding that the “extreme hardship”
standard under the pre-IIRIRA version of the INA was
ambiguous because “[t]hese words are not self-explanatory, and
reasonable men could easily differ as to their construction”);
Hernandez-Patino v. INS, 

, 753 (7th Cir. 1987)
(“Congress, in refusing to define ‘extreme’ hardship fully,
avoided the substantive policy decision and has deferred to
agency expertise.”); Matter of Hwang, 10 I. & N. Dec. 448, 451
(BIA 1964) (interpreting “extreme hardship” and finding that

                               23
“[t]he personal privation contemplated in a situation
characterized by ‘extreme hardship’ within the meaning of the
statute is not a definable term of fixed and inflexible content or
meaning”). Given that ambiguity, we turn to the second step of
the Chevron analysis. See 

.

        At Chevron step two, we ask whether the BIA’s
interpretation is permissible. The BIA’s interpretation is
permissible if it is a “reasonable interpretation” of the relevant
statute. 

. As noted, the BIA began its
analysis by remarking that the “exceptional and extremely
unusual hardship” standard was susceptible to different
meanings.       That ambiguity notwithstanding, the BIA
determined, based on the plain language of the phrase as a
whole, that “the hardship standard for cancellation of removal
is a higher one than that under the suspension of deportation,”
Monreal, 23 I. & N. Dec. at 59 (citations omitted), specifying
that the new standard requires an alien to demonstrate hardship
to a qualifying relative that is “‘substantially’ beyond the
ordinary hardship that would be expected when a close family
member leaves this country,” 

We see nothing
unreasonable in that determination, as it is practically compelled
by a simple juxtaposition of the two phrases themselves. Based
on their plain language, no great intellectual leap is required to
realize that “exceptional and extremely unusual hardship”
requires a greater showing than “extreme hardship.” Cf.
Cortes-Castillo v. INS, 

, 1204 (7th Cir. 1993)
(“Relief under the ‘exceptional and extremely unusual hardship’
standard of section [1254(a)(2)] is even more restrictive than the
‘extreme hardship’ requirement of section [1254(a)(1)].”
(footnote and citation omitted)); see Pimentel v. Mukasey, 530

                               

, 324 (5th Cir. 2008) (per curiam) (noting that the new
phrase imposes a heightened requirement); Moreno-Morante v.
Gonzales, 

, 1177-78 (9th Cir. 2007) (noting that
Congress’s substitution of “extreme hardship” with “exceptional
and extremely unusual hardship” was “prompted by a
weakening of the ‘suspension of deportation’ requirements”);
Ramirez-Perez v. Ashcroft, 

, 1006 (9th Cir. 2003)
(similar). Accordingly, we perceive no basis for concluding,
based on IIRIRA’s plain language, that the BIA’s interpretation
falls outside the broad range of permissible interpretations
authorized by the statutory language.

        Furthermore, as the BIA correctly recognized in Monreal,
its interpretation is buttressed by IIRIRA’s legislative history.
Cf. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or.,

, 703-04 (1995) (court’s conclusion that agency’s
statutory interpretation was permissible found “further support
from the legislative history of the statute”); United States v.
Riverside Bayview Homes, Inc., 

, 131 (1985) (“An
agency’s construction of a statute . . . is entitled to deference if
it is reasonable . . . in light of the language, policies, and
legislative history . . . .” (emphasis added)). In enacting IIRIRA,
Congress explicitly noted that the impetus for the new law was
what was perceived as the watering-down of the suspension of
deportation statute via administrative decisions:

       The managers have deliberately changed the
       required showing of hardship from “extreme
       hardship” to “exceptional and extremely unusual
       hardship” to emphasize that the alien must
       provide evidence of harm to his spouse, parent, or

                                25
       child substantially beyond that which ordinarily
       would be expected to result from the alien’s
       deportation. The “extreme hardship” standard has
       been weakened by recent administrative
       decisions. . . . Our immigration law and policy
       clearly provide that an alien parent may not derive
       immigration benefits through his or her child who
       is a United States citizen. The availability in truly
       exceptional cases of relief under [the cancellation
       of removal statute] must not undermine this or
       other fundamental immigration enforcement
       policies.

H.R. Rep. No. 104-828, at 213-14 (1996).

        Given IIRIRA’s plain language and legislative history,
there is no basis for concluding that the BIA’s interpretation of
the “exceptional and extremely unusual hardship” standard is
anything other than “a permissible construction of the statute.”
See 

& n.11. 7 As a consequence,


       7
        Pareja’s main assignment of error essentially parrots the
Monreal dissent. According to Pareja, “[t]he BIA’s disregard of
the Lorillard canon of statutory construction does not represent
a reasonable interpretation of the [cancellation] statute, and thus
is not protected by the deference ordinarily given the BIA in
interpreting the immigration laws.” (Pet’r’s Br. 28-29.) In
Lorillard, the Supreme Court explained that

       Congress is presumed to be aware of an

                                26
       administrative or judicial interpretation of a
       statute and to adopt that interpretation when it
       re-enacts a statute without change. . . . So too,
       where . . . Congress adopts a new law
       incorporating sections of a prior law, Congress
       normally can be presumed to have had knowledge
       of the interpretation given to the incorporated law,
       at least insofar as it affects the new 

.

        Based on Lorillard, Pareja argues that the BIA was
obligated to interpret the “exceptional and extremely unusual
hardship” standard by reference to case law from the 1950s.
Taken out of context, the language in Lorillard that Pareja
spotlights arguably supports her cause. On closer inspection,
however, Pareja’s position loses traction for three interrelated
reasons. First, the Lorillard canon applies only “when judicial
interpretations have settled the meaning of an existing statutory
provision . . . .” Merrill Lynch, Pierce, Fenner & Smith Inc. v.
Dabit, 

, 85 (2006) (internal quotation marks and
citations omitted). In such a case, “repetition of the same
language in a new statute indicates, as a general matter, the
intent to incorporate its judicial interpretations as well.” 

ellipsis and citations omitted). As Monreal
recognized, and as Pareja does not dispute, the case law
interpreting “exceptional and extremely unusual hardship” under
the 1952 version of the INA spans only about one decade and
settled very little. Indeed, Pareja concedes that those early cases

                                27
“never reduced their interpretation of ‘exceptional and
extremely unusual hardship’ to a precise verbal formula that one
could substitute for that phrase without losing meaning.”
(Pet’r’s Br. 30.) Clearly, if the 1950s decisions did not
decisively delineate the contours of that phrase, it cannot be
seriously argued that the interpretation of that phrase was so
settled that we should expect Congress to have been on notice
of its meaning some thirty years later. See Fogerty v. Fantasy,
Inc., 

, 532 (1994) (declining to apply Lorillard
because “[o]ur review of the prior case law itself leads us to
conclude that there was no settled . . . interpretation . . . about
which Congress could have been aware”).

        Second, as Lorillard makes plain, the presumption that
Congress is aware of settled interpretations of a law ordinarily
arises where Congress “re-enacts” the same law. See, e.g.,
Albemarle Paper Co. v. Moody, 

, 414 n.8 (1975).
Importantly, here, Congress did not re-enact the same law.
Instead, it enacted a new law that purposefully substituted the
language of the old law with different language that happened
to mirror the language of a law that had been defunct for several
years. These circumstances do not compel the application of the
Lorillard presumption. See, e.g., Nigg v. United States Postal
Serv., 

, 787 (9th Cir. 2009).

       Finally, the rule in Lorillard “must always be qualified by
the observation that evidence of what subsequent Congresses
intend pales in comparison to probative evidence about what the
enacting Congress intended.” Coke v. Long Island Care at

                                28
we must defer to the BIA under Chevron. See 

; 

-72; 

; Briseno-Flores v. Att’y Gen. of the United States, 

, 231 (3d Cir. 2007). Accordingly, we will deny Pareja’s
petition insofar as it attacks Matter of Monreal and the BIA’s
interpretation of the cancellation of removal statute’s hardship
standard.8



Home, Ltd., 

, 130 n.4 (2d Cir. 2004) (emphasis
added), vacated and remanded on other grounds, 

(2006); accord Henderson v. Shinseki, 

, 1215
(Fed. Cir. 2009). As the BIA observed in Monreal, there is
abundant evidence of what Congress actually intended when it
enacted IIRIRA. As noted, Congress was concerned that
administrative decisions had lowered the bar for determining
what constitutes hardship to a qualifying relative and thus
sought to impose a heavier burden on aliens. Under these
circumstances, it was certainly permissible for the BIA to rely
on an unequivocal statement of intent from the Congress that
enacted IIRIRA. See Harvey v. Johanns, 

, 243 (1st
Cir. 2007) (rejecting reliance on Lorillard because “Congress –
whatever its awareness of the regulations – was unarguably
focused on ameliorating the effects of [a previous judicial]
decision”).
       8
        Pareja also attacks the BIA’s en banc decision in Matter
of Andazola, where the BIA denied cancellation of removal to
a single Mexican mother of two United States citizens based
largely on the reasoning of Monreal. The BIA in Andazola was
“sympathetic” to the alien’s case, 23 I. & N. Dec. at 322, but

                              29
       2.     Whether the BIA erred by attaching weight to
              the number of qualifying relatives in its
              hardship determination

       Pareja argues that the BIA found her ineligible for


pointed out that “Congress has now imposed a standard of
hardship that is significantly more burdensome than the former
‘extreme hardship’ standard,” 

found the alien’s
showing – which, like Pareja’s, was limited to mostly economic
detriment and lesser educational opportunities for her children
– inadequate under “the very high standard of the current law.”

dissented, arguing that the alien should have
prevailed based on her particular circumstances while
recognizing that this was “a close case,” 

(Osuna,
Board Member, dissenting), and without calling into question
the soundness of Monreal’s legal foundation. Pareja claims that
in Andazola “[t]he BIA compounded the error of Monreal” by
“double-count[ing] Congressional intent to narrow the class of
eligible aliens, and in so doing exacerbated its unsound
departure from the pre-IIRIRA precedents on the meaning of
‘exceptional and extremely unusual hardship[.]’” (Pet’r’s Br.
41-42.) Pareja’s isolation of the BIA’s statement that Congress,
in the new cancellation of removal statute, “narrowed the class
of aliens who could qualify for relief,” Andazola, 23 I. & N.
Dec. at 58, is for nought. That statement merely reflects the
BIA’s recognition – and accurate recognition at that – that
Congress raised the bar for aliens in IIRIRA. To the extent
Pareja’s assault on Andazola mirrors her attack on Monreal, it
fails for the same reasons we have already cited.

                              30
cancellation of removal based on an impermissible consideration
in its hardship calculation. Specifically, she contends that the
BIA incorrectly focused on the number of her qualifying
relatives and not simply on the hardship to her sole qualifying
relative in the event of removal.

        This challenge is again governed by the Chevron
analysis.      Thus, we must first determine whether
§ 1229b(b)(1)(D) “is silent or ambiguous with respect to the
specific issue of law in the case, using traditional tools of
statutory construction to determine whether Congress had an
intention on the precise question at issue.” 

(quoting 

) (quotation marks
omitted). That provision says that cancellation of removal may
be granted to an alien who “establishes that removal would
result in exceptional and extremely unusual hardship to the
alien’s spouse, parent, or child, who is a citizen of the United
States or an alien lawfully admitted for permanent residence.”
8 U.S.C. § 1229b(b)(1)(D). The statute is clearly written in the
singular, and it speaks without equivocation: hardship may be
established by reference to but one qualifying relative. There is
nothing in § 1229b(b)(1)(D) to suggest that eligibility for
cancellation of removal – as opposed to the discretionary grant
or denial of cancellation of removal – is in any way a function
of how many qualifying relatives an alien has. Because
“congressional intent is clear, ‘the [Chevron] inquiry ends, as
both the agency and [we] must give effect to the plain language
of the statute.’” 

(quoting 

). Under the statute, then, whether Joanne was
Pareja’s only qualifying relative or one of several would not
have been a proper focus of inquiry for the purpose of

                               31
determining Pareja’s eligibility for cancellation of removal. Cf.
Shi Liang Lin v. U.S. Dep’t of Justice, 

, 305 (2d
Cir. 2007) (en banc) (finding that the phrase “a person who has
been forced to abort a pregnancy or to undergo involuntary
sterilization” in 8 U.S.C. § 1101(a)(42) “could not be more clear
in its reference to ‘a person,’ rather than ‘a couple,’ who has
been subjected to a forced abortion or involuntary sterilization”),
cited with approval in 

.

        Here, the BIA began its analysis by determining that
Pareja’s only qualifying relative was Joanne.              Having
determined as much, the BIA turned its attention to whether
Pareja had met her burden of showing hardship to Joanne. The
BIA rejected Pareja’s claim that Joanne had serious emotional
problems or compelling educational needs, pointing to a lack of
evidence. The BIA also cited Pareja’s testimony that Joanne
would return to Mexico with her, concluding that Joanne’s
alleged separation anxiety was not a relevant consideration in
light of that testimony. The BIA further noted that Pareja had
some savings that would enable her to gain a footing in Mexico
with Joanne, and that Pareja had failed to establish that Joanne’s
father would cease making child support payments or seeing his
daughter if she returned to Mexico. Significantly, none of these
considerations reflect that the BIA impermissibly concentrated
on the number of Pareja’s qualifying relatives. The portion of
the BIA’s decision on which Pareja principally trains her sights
is its discussion of Matter of Recinas. In that discussion, the
BIA sought to distinguish Recinas from Pareja’s case. The BIA
noted that the Recinas petitioner “was the sole supporter of six
children, . . . [and] had no support from her children’s father


                                32
. . . .” (App. 4.) “By contrast,” the BIA reasoned, Pareja “has
one qualifying relative . . . .” (Id.)

       We agree with Pareja that the BIA’s apparent basis for
differentiating her case from Recinas is potentially problematic,
as it suggests that the BIA may have given weight to an
impermissible factor under § 1229b(b)(1)(D). In our view, the
BIA’s discussion of Recinas is susceptible to at least two broad
interpretations. On the one hand, by citing how many qualifying
relatives the Recinas petitioner had, the BIA simply might have
meant that the Recinas petitioner had established hardship to
each individual qualifying relative because her resources
necessarily would have been spread more thinly than Pareja’s,
as Pareja is financially responsible for only one individual,
Joanne. This approach would have been permissible under
§ 1229b(b)(1)(D). On the other hand, the BIA’s decision also
could be read to mean that the BIA thought Recinas was
distinguishable on the ground that Pareja did not have as many
qualifying relatives as the Recinas petitioner. If this reading
accurately reflects the BIA’s mode of analysis, the BIA
committed legal error. Of course, there may well be other
explanations for the BIA’s treatment of Recinas.

       Given our uncertainty over the meaning of the BIA’s
decision in this sole respect and what appears to us as more than
just a remote possibility that the BIA failed to implement
congressional intent by requiring Pareja to establish hardship by
reference to a consideration not contemplated by
§ 1229b(b)(1)(D), we believe the prudent course is to grant
Pareja’s petition in part and remand this case for the limited
purpose of allowing the BIA either to clarify its decision or, in

                               33
the event the BIA determines that it made a mistake in its
application of Recinas to Pareja’s case, to decide anew based on
the current record whether Pareja has established eligibility for
cancellation of removal using the proper hardship standard.9




       9
         Judge Greenberg joins in Judge Fisher’s comprehensive
opinion in all respects but points out that regardless of whether
or not there was a mistake in the application of Recinas in this
case, and regardless of the number of children impacted by the
denial of an application for cancellation of removal, the
overarching consideration here is whether the alien’s removal,
in this case Pareja, would result in “exceptional and extremely
unusual hardship to” the parent’s child, in this case Joanne.
Judge Greenberg is tempted to say that we should deny the
petition for review because no matter what the BIA concludes
on remand, the hardship here, though undoubtedly severe,
simply cannot be considered to be “exceptional and extremely
unusual” whether or not Joanne accompanies her mother to
Mexico when her mother either departs voluntarily or is
removed. Yet Judge Greenberg recognizes that there are
intricate jurisdictional questions involved in these appellate
proceedings and, in the circumstances, we are taking a wise path
in remanding as the opinion provides. He wants to emphasize,
however, that by remanding we are not implying that we have a
positive view of the merits on the overarching question in this
case, i.e. would the hardship to Joanne from her mother’s
removal be “exceptional and extremely unusual.”

                               34
                               III.

        For the foregoing reasons, we will grant Pareja’s petition
to the extent it relates to the BIA’s consideration of the number
of her qualifying relatives, and remand this case to the BIA for
the limited purpose of allowing it to clarify or to reconsider its
application of Matter of Recinas to this case. We will deny
Pareja’s petition to the extent it asks us to overrule Matter of
Monreal. Finally, we will dismiss the balance of the petition for
lack of jurisdiction.




                               35