In March 2019, Trump Sixth Circuit Judge John Nalbandian dissented from a decision, which was joined by a George W. Bush appointee, that ruled that the Board of Immigration Appeals (BIA) had abused its discretion by failing to even discuss new medical evidence that showed that deportation of a parent, Edmundo Solano-Abarca, would result in unusual hardship because of his sick daughter. Nalbandian claimed in dissent that he relied on his view that the BIA did not believe that the child was Solano-Abarca’s daughter, even though the majority noted that a birth certificate in the record provided “uncontested proof” that she was.

Edmundo Solano-Abarca came to the United States from Mexico in 2001, and more than ten years later, the government sought to remove him. He contended his removal should be cancelled under a federal law when an immigrant has lived in this country for more than ten years, has “established good moral character,” has no disqauliying criminal convictions, and his removal would cause “exceptional and extremely unusual hardship” to a close relative who is a U.S. citizen. The government agreed that the first three criteria were met, but an Immigration Judge found there would be no “unusual” hardship with respect to Solano-Abarca’s wife and the three children discussed at the hearing.

While an appeal to the BIA was pending, the family learned that a fourth child, a two-year old who had not been discussed at the hearing, was diagnosed with a rare neurological disorder and an abnormal brain MRI. The father filed a motion to reopen and reconsider the hardship issue. The BIA denied both the appeal and the motion to reopen and reconsider, and Solano-Abarca appealed the denial of the motion to the Sixth Circuit.

In Solano-Abarca v. Barr, Judges Gilbert Merritt and Julia-Smith Gibbons, who was nominated by President George W. Bush, ruled that the BIA had abused its discretion in denying the motion. Although they believed that the fourth child should have been mentioned earlier, they explained that under prior case law, the fact that the new medical evidence of hardship had arisen after the hearing meant that it should have been considered by the BIA. But the BIA had summarily denied the motion without even discussing the new medical evidence presented by the family, and “said nothing” about whether the harm resulting from the  newly-discovered medical condition “rose to the level” of hardship required by law. Accordingly, the majority found, the BIA had “abused its discretion” by failing even to “discuss the fourth child’s new medical evidence” in the context of the hardship standard, and the case was sent back to the BIA.

Nalbandian nevertheless dissented. He did not specifically dispute the majority’s analysis, but concluded that the BIA “did not believe” that  Solona-Abarca was the sick child’s father and that the court should defer to that view. But this ignored the fact, as the majority pointed out, that a birth certificate in the record provided “uncontested proof that the fourth child is the petitioner’s daughter.” Fortunately, the majority did not agree with Nalbandian, and the BIA will be required to consider the hardship issue.