RETURN TO GENERIC ORAL DECISION FORMAT
REAL ID - 240A(b)(1)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
(LOCATION)
File No: A________
Date:
In the Matter of
_____________
)
) IN REMOVAL PROCEEDINGS
)
Respondent
)
CHARGE(S): Section 212(a)( )( ) [Or 237(a)( )( )] of the Immigration and Nationality
Act -
APPLICATION(S): Cancellation of removal for non-permanent resident; voluntary
departure
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:
___________________, Attorney at Law
________________________
Assistant Chief Counsel
ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE
The respondent is a ___ year old, single/married, male/female, native and citizen of
______________________. The United States Department of Homeland Security
(DHS) brought these removal proceedings against the respondent under the authority of
the Immigration and Nationality Act (the Act). Proceedings were commenced with the
filing of the Notice to Appear (NTA) with the Immigration Court. See Exhibit 1.
The respondent admits as alleged in the Notice to Appear that (for example): S/He
entered the United States on or about _____________ at or near _________. S/He
further concedes that s/he is inadmissible as charged under section 212(a)(6)(A) of the
Act as an alien present in the United States without being admitted or paroled, or who
arrived in the United States at any time or place other than as designated by the Attorney
General.
On the basis of the respondent’s admissions (and the supporting I-213/other records
admitted into evidence) I find that the respondent’s removability has been established –
(1) [for section 212 charges:] in that the respondent has not
shown that he is clearly and beyond doubt entitled to be admitted
and is not inadmissible, or in that the respondent has not shown
by clear and convincing evidence that he is lawfully present in the
United States pursuant to a prior admission. Section 240(c)(2) of
the Act.
(2) [for section 237 charges:] by the INS by clear and convincing
evidence. Section 240(c)(3) of the Act.
The respondent withdrew any request for asylum or withholding of removal of any form
under the Act. She designated _______ as the country of deportation should that become
necessary. The respondent applied for relief from removal in the form of cancellation of
removal for certain non-permanent residents under section 240A(b)(1) of the Act, and in
the alternative voluntary departure under section 240B(b) of the Act. She bears the
burdens of proof and persuasion on her requests for relief.
The respondent’s Form EOIR-42B application for cancellation is contained in the record
as Exhibit 2. Prior to admission of the application the respondent was given an
opportunity to make any necessary corrections and then swore or affirmed before this
Court that the contents of the application as corrected were all true and correct to the
best of her knowledge.
STATUTORY ELIGIBILITY
To be eligible for cancellation of removal under section 240A(b)(1) an applicant must
prove that she (the applicant):
1)
has been physically present in the United States for a continuous
period of not less than 10 years immediately preceding service of
the charging document and up to the time of application;
2)
has been a person of good moral character for the 10 years prior to
a final administrative order (Matter of Ortega, 23 I&N Dec. 793
(BIA 2005);
3)
has not been convicted of an offense under certain specified
sections of the Act (sections 212(a)(2), 237(a)(2), or 237(a)(3) of
the Act); and
4)
establishes that removal would result in exceptional and extremely
unusual hardship to the applicant's spouse, parent, or child, who is
a United States citizen or lawful permanent resident.
In this case the respondent has ___ (number) qualifying relatives. LIST QUALIFYING
RELATIVES.
To establish exceptional and extremely unusual hardship an applicant must
demonstrate that a qualifying relative would suffer hardship that is substantially
different from or beyond that which would ordinarily be expected to result from the
alien’s deportation, but need not show that such hardship would be “unconscionable.”
The hardship must be beyond that which was required in suspension of deportation
cases. Hardship factors relating to the applicant may be considered only insofar as they
might affect the hardship to a qualifying relative. Matter of Recinas, 23 I&N Dec. 467
(BIA 2002); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002); Matter of Monreal, 23
I&N Dec. 56 (BIA 2001).
SUSTAINING BURDEN AND CREDIBILITY
The provisions of the “REAL ID Act of 2005" apply to the respondent’s application as it
was filed on or after May 11, 2005. Section 240(c)(4)(B) and (C) of the Act state as
follows:
(B) SUSTAINING BURDEN- The applicant must comply with the applicable
requirements to submit information or documentation in support of the applicant's
application for relief or protection as provided by law or by regulation or in the
instructions for the application form. In evaluating the testimony of the applicant or
other witness in support of the application, the immigration judge will determine
whether or not the testimony is credible, is persuasive, and refers to specific facts
sufficient to demonstrate that the applicant has satisfied the applicant's burden of proof.
In determining whether the applicant has met such burden, the immigration judge shall
weigh the credible testimony along with other evidence of record. Where the
immigration judge determines that the applicant should provide evidence which
corroborates otherwise credible testimony, such evidence must be provided unless the
applicant demonstrates that the applicant does not have the evidence and cannot
reasonably obtain the evidence.
(C) CREDIBILITY DETERMINATION- Considering the totality of the circumstances,
and all relevant factors, the immigration judge may base a credibility determination on
the demeanor, candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant's or witness's account, the consistency between the
applicant's or witness's written and oral statements (whenever made and whether or not
under oath, and considering the circumstances under which the statements were made),
the internal consistency of each such statement, the consistency of such statements with
other evidence of record (including the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in such statements, without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's
claim, or any other relevant factor. There is no presumption of credibility, however, if
no adverse credibility determination is explicitly made, the applicant or witness shall
have a rebuttable presumption of credibility on appeal.
ANALYSIS AND FINDINGS
A. Continuous Physical Presence: To meet the time requirement for cancellation the
respondent must show entry into the United States at least by 10 years prior the service
of the Notice to Appear, and that she maintained continuous physical presence since that
time.
1.
When did the respondent begin continuous physical presence?
i.
This is a factual question: The REAL ID expects
the applicant to present evidence that is reasonably
obtainable.
ii.
2.
Review the documents, affidavits, and witness
testimony. Enter credibility findings and determine
what weight to give to the evidence.
Even if alien established entry by 10 years prior to service of
NTA, is there proof of continuous physical presence since that
time?
a.
What terminates continuous physical presence?
i.
See section 240A(d)(1). Service of the Notice to
Appear or commission of a criminal offense
referred to in section 212(a)(2) of the Act,
whichever is earliest. See Matter of CamposTorres, 22 I&N Dec. 1289 (BIA 2001).
ii.
Matter of Robles, 24 I&N Dec. 22 (BIA 2006)
(continuous residence stops on the date offense
committed, not date of conviction; continuous
residence stops on date offense is committed even
if committed prior to Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 - April
1, 1997), Matter of Perez, 22 I&N Dec. 689 (BIA
1999), reaffirmed.
iii.
Matter of Jurado, 24 I&N Dec. 29 (BIA 2006) (an
alien need not be charged and found inadmissible
or removable on a ground specified in section
240A(d)(1)(B) of the Immigration and Nationality
Act in order for the alleged criminal conduct to
terminate the alien’s continuous residence in this
country).
b.
What breaks continuous physical presence?
i.
See section 240A(d)(2). Absence from the United
States for any single period in excess of 90 days or
for any aggregate periods exceeding 180 days will
break the respondent's continuous physical
presence.
(1)
A departure that is compelled under threat
of the institution of deportation or removal
proceedings is a break in physical presence
for purposes of cancellation of removal.
Matter of Romalez, 23 I&N Dec. 423 (BIA
2002); Vasquez-Lopez v. Ashcroft, 315
F.3d 1201 (9th Cir. 2003) (per curium), as
amended upon denial of rehearing en banc,
343 F.3d 961 (9th Cir. 2003).
(2)
Where the alien was turned around at the
border without entering into a formal
agreement with the government whereby
the terms and conditions of his departure
were clearly specified, and he was not
statutorily barred from immediately
reapplying for admission to the United
States, his being turned away at the border
did not have the same effect as an
administrative voluntary departure and did
not itself interrupt the accrual of an alien's
continuous physical presence. Tapia v.
Gonzales, 430 F.3d 997 (9th Cir. 2005).
(3)
The record must contain substantial
evidence that would support the conclusion
that the respondent knowingly and
voluntarily accepted administrative
voluntary departure. For the voluntary
.
departure to be under “threat” of
deportation, the terms and conditions of the
departure must be clearly specified. The
respondent must be informed of and accept
the terms. He should leave with the
knowledge that he does so in lieu of being
placed in proceedings and therefore has no
legitimate expectation that he may reenter
and resume continuous presence. IbarraFlores v. Gonzales, 439 F.3d 614 (9th Cir.
2006).
(4)
Where an alien departed the United States
for a period less than that specified in
section 240A(d)(2) of the Immigration and
Nationality Act, and unsuccessfully
attempted reentry at a land border port of
entry before actually reentering, physical
presence continued to accrue for purposes
of cancellation of removal under section
240A(b)(1)(A) unless, during that
attempted reentry, the alien was formally
excluded or made subject to an order of
expedited removal, was offered and
accepted the opportunity to withdraw an
application for admission, or was subjected
to some other formal, documented process
pursuant to which the alien was determined
to be inadmissible to the United States.
Here, the respondent’s 2-week absence
from the United States did not break her
continuous physical presence where she
was refused admission by an immigration
official at a port of entry, returned to
Mexico without any threat of the institution
of exclusion proceedings, and subsequently
reentered without inspection. Matter of
Avilez-Nava, 23 I&N Dec. 799 (BIA
2005).
(5)
Before it may be found that a presencebreaking voluntary departure occurred, the
record must contain some evidence that the
alien was informed of and accepted its
terms. Reyes-Vasquez v. Ashcroft, 395
F.3d 903 (8th Cir. 2005).
(6)
c.
Whereas service of the OSC or NTA, or
commission of a qualifying offense stops
time forever under 240A(d)(1), a break in
time under 240A(d)(2) is just a break; you
can begin counting anew after the break.
Matter of Mendoza-Sandino, 22 I&N Dec.
1236 (BIA 2000). Thus, a voluntary
departure that took place more than 10
years prior to the date “immediately
preceding” the application for cancellation
would not bar the respondent from
establishing a new period of time.
An applicant who was in the United States at the time of
enlistment and has served for a minimum period of 24
months in an active duty status in the armed forces does
not need to fulfill the continuous physical presence
requirement. Section 240A(d)(3) of the Act.
B. Good Moral Character:
1.
Is the respondent a person of good moral character for the 10
years prior to a final administrative order entered by the
Immigration Judge or BIA? Matter of Ortega, 23 I&N Dec. 793
(BIA 2005).
a.
Good Moral Character is defined in Section 101(f) of the
Act.
b.
Common bars involve criminal convictions, engaging in
alien smuggling, and false testimony under oath.
i.
An alien, who was convicted of two misdemeanor
crimes involving moral turpitude, is not precluded
by the provisions of section 240A(d)(1)(B) of the
Act from establishing the requisite 7 years of
continuous residence for cancellation of removal
under section 240A(a)(2), where his first crime,
which qualifies as a petty offense, did not render
him inadmissible, and he had accrued the requisite
7 years of continuous residence before the second
offense was committed. Matter of Deanda-Romo,
23 I&N Dec. 597 (BIA 2003).
ii.
An alien who has committed a crime involving
moral turpitude that falls within the “petty
offense” exception is not ineligible for cancellation
of removal under section 240A(b)(1)(B) of the
Act, because commission of a petty offense does
not bar the offender from establishing good moral
character under section 101(f)(3) of the Act, 8
U.S.C. § 1101(f)(3). However, an alien who has
committed more than one petty offense is not
ineligible for the “petty offense” exception if “only
one crime” is a crime involving moral turpitude.
Matter of Garcia-Hernandez, 23 I&N Dec. 590
(BIA 2003).
C. Statutory Bars under 240A(b)(1)(C):
1.
Has the respondent been convicted of an offense barring him
from cancellation under section 240A(b)(1)(C) of the Act?
2.
Section 240A(b)(1)(C) of the Act requires that an applicant for
cancellation “has not been convicted of an offense under section
212(a)(2), 237(a)(2), or 237(a)(3).”
3.
There is no time limit.
4.
In Gonzalez-Gonzalez v. Ashcroft, 390 F.3d 649 (9th Cir. 2004),
the Ninth Circuit affirmed a BIA decision interpreting this
language to read “convicted of an offense described under.”
Thus, alien convicted of crime of domestic violence described in
237(a)(2)(E)(i) of Act was ineligible for cancellation under
section 240A(b)(1)(C) even though he could not be charged with
removability under section 237. Petty offense has no application
under section 237(a)(2)(E)(i) and is therefore not a defense.
5.
An alien whose conviction precedes the effective date of section
237(a)(2)(E) of the Act is not “convicted of an offense under”
that section and therefore is not barred from establishing
eligibility for cancellation of removal by section 240A(b)(1)(C)
(2000). Matter of Gonzalez-Silva, 24 I&N Dec. 218 (BIA 2007).
D. Exceptional and Extremely Unusual Hardship
No one questions the respondent’s motivation or desire to remain in the United States.
However, the context for cancellation of removal cases includes the fact that many
individuals are waiting in line for their legal opportunity to come to the United States
through a family or employment-based visa. Many, particularly in countries like
______, where the respondent is from, have been waiting for years for their visa number
to become available. They had and still have the same hopes and dreams of living in the
United States as does the respondent. The respondent here however, and many others
with cancellation requests, in effect did not wait in the line, but simply bypassed the
line, and arguably have been living for years off the opportunities that rightfully belong
to those waiting in line.
So, out of fairness and justice to all those persons waiting in line, but also out of
sympathy for the truly exceptional case, Congress has fashioned the relief of
cancellation which requires that those who came illegally or stayed illegally many years
ago now return except in the rare case where return would cause an exceptional and
extremely unusual hardship to a qualifying family member. Cancellation is not lawfully
appropriate upon a showing of normal hardship, that is, hardship to family which would
be expected upon return by most respondents after living many years in the United
States. Cancellation is not even appropriate upon a showing of extreme hardship to a
family member upon the respondent’s removal. It is only lawfully appropriate where the
facts demonstrate an “exceptional and extremely unusual hardship” to a qualifying
family member.
The Court has compared the facts of this case with the facts of Matter of Recinas,
Matter of Andazola, and Matter of Monreal supra. The closest analogy to the case here
is the case of _________.
Matter of Recinas, supra, involved a 39 year old single mother with 6 children to care
for, 4 of whom were United States citizens aged 12, 11, 8, 5. All of her remaining
immediate family members were in the United States legally including her lawful
permanent resident parents and 5 United States citizen siblings. She had no family
remaining in Mexico. The Board of Immigration Appeals granted the case finding it to
be on the “outer limits” of the narrow spectrum of cases in which the exceptional and
extremely unusual hardship standard will be met.
Matter of Monreal, supra, involved a 34 year old Mexican national who had been in the
United States for 20 years. He had come to the United States at the young age of 14. He
had 3 United States citizen children ages 12, 8, and an infant. His wife’s application for
cancellation had been denied, and she had returned to Mexico with the infant. The
respondent was gainfully employed, supporting his children here, and his wife and child
in Mexico. His parents were lawful permanent residents of the United States. There was
no question that the children had a close relationship with these grandparents and with
other family members in the United States. The BIA found no exceptional or extremely
unusual hardship to any of the respondent’s 5 qualifying relatives.
Matter of Andazola, supra involved a 30-year-old female, native and citizen of Mexico.
She was not married, but she was living with the father of her children. She had entered
in 1985, and so considering the date that the Board rendered its decision, she had
entered approximately at age 14 and had been in the United States for 16 years. She had
two United States children, ages 11 and 6. She was employed and she was receiving the
benefits of a 401K plan as well as medical insurance, through her employment. She had
purchased a home. She had two automobiles and $7,000 in cash. She claimed that she
had no close relatives in Mexico. Her mother was in the United States as well as
siblings, but they were not of a lawful status. The respondent had a sixth grade
education, so she was concerned that she would not be able to obtain adequate
employment were she to return to Mexico. The respondent had asthma, although her
children’s health was fine. The Board of Immigration Appeals in the case noted that
there would be reduced economic and educational opportunities for the children in
Mexico, but the Board found that the respondent had failed to establish exceptional and
extremely unusual hardship to either of her two children.
This Court has weighed all the evidence of record both individually and cumulatively on
the issue of exceptional and extremely unusual hardship. [The key questions to be asked
are: What hardship would ordinarily be expected to result from the alien’s deportation?
And: Is the hardship here substantially different from or beyond that ordinarily
expected? In defining the terms the BIA did say that they expected the “exception to the
norm to be very uncommon,” see Monreal, supra, at 59 or “limited to ‘truly exceptional’
situations,” Id. at 62.]
Upon examination, the Court concludes that there are:
1.
Insufficient facts to meaningfully distinguish this case from the
result in [Matter of Monreal], [Matter of Andazola]. OR,
2.
There are a number of distinguishing factors that warrant a
favorable finding to the respondents.
a.
Examples of a few potential distinguishing factors to
watch for:
i.
Parents from different countries
ii.
The number of siblings - primarily as an economic
factor
iii.
Sibling separation - (if a natural outcome, not if
manufactured separation)
iv.
Respondent substantially older - fewer job
possibilities
v.
Teenager who spent formative years in the United
States. See Matter of OJO, 21 I&N Dec. 381 (BIA
1996) where the BIA gave great weight to the
alien’s having spent his formative years here in the
US.
vi.
If respondents have grandchildren
vii.
The unavailability of 212(a)(9)(C)(v) waiver to
reenter.
CONSIDERATIONS:
1.
Credibility of respondent and any witnesses:
2.
Financial means: The respondent expressed concern that if
deported his economic circumstances may result in exceptional
and extremely unusual hardship to his qualifying relatives.
a.
The respondent is ____ years old and in good health. Like
in Monreal, there is “nothing to show that he would be
unable to work and support his United States citizen
children in Mexico.” This exact finding was made in
Monreal even though the applicant had been here 20 years
since the young age of 14, and even though only one of
the two parents earned a wage through employment.
b.
Came at early age: Like Monreal, the respondent has been
in the United States for many years since a very early age.
But this fact was found insufficient in Monreal to
establish the requisite hardship to the children.
c.
Came as adult: The respondent came as an adult. Thus,
this is not a case where the respondent does not bear
responsibility for the choice to enter the United States
illegally, or stay in the United States illegally, or where
she has spent her critical formative years in the United
States. Contrast Matter of O-J-O-, 21 I&N Dec. 381 (BIA
1996). The respondent collected equities in this country
knowing full well she may be required to leave at any
time.
d.
Also, economic detriment due to adverse conditions in the
home country, loss of employment or employment
benefits in the United States, even the loss of a business or
the pursuit of a chosen profession in the United States,
and projected difficulty in finding employment in the
home country are normal occurrences of deportation and
do not justify a grant of cancellation in the absence factors
substantially different from or beyond that normally
expected to result from the alien’s deportation. Compare
Perez v. INS, 96 F.3d 390 (9th Cir. 1996); RamirezDurazo v. INS, 794 F.2d 491 (9th Cir. 1986); MejiaCarrillo v. United States, 656 F.2d 520 (9th Cir. 1981);
Santana-Figueroa v. INS, 644 F.2d 1354 (9th Cir. 1981);
Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Matter of
Anderson, 16 I&N Dec. 596 (BIA 1978). All suspension
of deportation cases cited for comparison purposes only.
e.
Moreover, as a matter of proof / evidence, the respondent:
f.
i.
Has not inquired as to possibility of employment in
home country.
ii.
Has employment skills which would transfer.
iii.
Has not shown the ownership of a business or
home that would have to be sold, much less sold at
a loss.
iv.
These are investments that she made (after service
of NTA) or (with full knowledge that she had no
status in this country).
v.
Consider whether, if respondent sold his assets, he
would be going returning with sufficient funds to
aid in readjustment.
Burden from other financial obligations: Support payments
/ “particular or unusual psychological hardship” Tukhowinich)
i.
Financial obligations to other family members may
impact ability to support qualifying family
members. Cf. Ramirez-Gonzalez v. INS, 695 F.2d
1208 (9th Cir. 1983), and Tukhowinich v. INS, 64
F.3d 460 (9th Cir. 1995).
3.
Presence of children in home country: Here, like in Monreal and
in Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), a suspension of
deportation case, the respondent has a child or children in the
home country and therefore already has immediate family
member obligations in the home country that must be attended to.
4.
Children in the United States: (If children are staying in United
States):
5.
i.
The respondent testified that her children would
not be going with her if she were required to leave
the United States. Thus I do not consider societal
or physical detriment to the child in the parent’s
native country, such as fewer economic
advantages or educational opportunities. I do
however consider the hardship from emotional
separation to both the parents and the children.
ii.
If a young child were to be separated from his or
her parents due to the parents’ deportation,
hardship to the family members due to separation
must be considered. Perez v. INS, 96 F.3d 390 (9th
Cir. 1996). In Matter of Ige, 20 I&N Dec. 880
(BIA 1994), it was stated that “Where an alien
alleges extreme hardship will be suffered by his
United States Citizen child were the child to
remain in the United States upon his parent’s
deportation, the claim will not be given significant
weight absent an affidavit from the parent stating
that it is his intention that the child remain in this
country, accompanied by evidence demonstrating
that reasonable provisions will be made for the
child’s care and support.” The court in Perez v.
INS, supra, found this to be a valid evidentiary
requirement. Here the respondent has not
submitted the required Ige affidavit.
iii.
[Following part of Ige was overruled by Perez v.
INS: “Assuming a United States Citizen child
would not suffer extreme hardship if he
accompanies his parent abroad, any hardship the
child might face if left in the United States is the
result of parental choice, not of the parent’s
deportation.” Attributing separation hardship to
parental choice as was done in Ige was found in
Perez v. INS to be a per se rule and therefore
inappropriate.]
Children in the United States: (If children are going to parent’s
homeland):
a.
Economic and Educational Opportunities: The fact that
economic and educational opportunities for the child
might be better in the United States than in the parent’s
homeland does not itself establish the requisite hardship.
See Matter of Kim, 15 I&N Dec. 88 (BIA 1974); see also
Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); RamirezDurazo v. INS, 794 F.2d 491 (9th Cir. 1986) (all
suspension of deportation cases cited for comparison
purposes only).
i.
In Monreal the oldest child, 12, had classes in both
English and Spanish and could speak, read, and
write in both languages. The BIA did not even
mention facts relating to the 8 year old. In this case
while English is the child’s (childrens’) primary
language, the record does reflect that child speaks
and understands Spanish and there is no reason to
conclude that she could not progress sufficiently in
her Spanish skills to maintain her level of school
by the time she accompanied her parents once their
appeal rights have been exhausted. Again, this
situation is common in cancellation cases, not
exceptional or extremely unusual.
ii.
Precedent suggests that the readjustment of
children to a new country may be easier when the
children are still very young as in this case. Even
so, while the children may face difficulties
adjusting to life in the parent’s homeland, the
problems in this case do not materially differ from
those encountered by other children who relocate
as a consequence of their parents’ deportation.
Marquez-Medina v. INS, 765 F.2d 673 (7th Cir.
1985); Matter of Pilch, 21 I&N Dec. 627 (BIA
1996) (suspension of deportation cases cited for
comparison purposes only).
iii.
b.
Special Education classes. It is not uncommon that
a respondent points to special education classes for
one or more of the qualifying relative children as a
factor to be considered in assessing hardship.
There are understandably many different variables
in these cases including: the age of the child
currently, the age and grade when the child entered
special education, the reason for the classes, and
the number of classes the child attends. There are
many different reasons offered as to why a
particular child is referred to special education
classes. Some of the reasons appear to include
environmental factors including the level of
English language abilities the child possessed
when the child entered public school. Sometimes
the placement in special education classes is
related to a child suffering from attention deficit
disorder. Sometimes a child is referred to special
education due to a learning disability such as a
disability in auditory processing. Sometimes the
reason for placing a child in special education is
more severe such as mild mental retardation, or
psychological or behavioral problems. The Board
of Immigration Appeals would know better the
percentage of cancellation cases in which special
education is advanced as a hardship factor, and
also the extent of the variables involved, as they
receive all the appeals from all the Immigration
Courts throughout the nation. I find that the facts
concerning special education in this case should be
weighed as follows:
Medical facilities: The fact that medical facilities in the
alien’s homeland may not be as good as they are in this
country does not itself establish exceptional and extremely
unusual hardship to the child. See Matter of Correa, 19
I&N Dec. 130 (BIA 1984) (a suspension of deportation
case cited for comparison purposes only).
i.
Consider factors reflecting children in good health
vs. health problems
6.
Separation from family:
a.
Family ties: Note and describe family ties / immigration
status / degree of closeness / special emotional and
financial concerns / emotional impact on respondent of
taking children to native country or leaving them in the
United States.
b.
Monreal: The separation of the children from the
grandparents and friends was not found to be sufficient.
c.
Separation from friends and family members in the United
States is a common result of deportation. Matter of Pilch,
21 I&N Dec. 627 (BIA 1996).
d.
Respondent would be reunited with other family members
in her native country. These family members may be able
to provide financial base of support as they (own their
own homes; have jobs; etc). If not more, these family
members may be able to provide an emotional base of
support during the respondent’s time of readjustment.
Matter of Pilch, 21 I&N Dec. 627 (BIA 1996).
7.
Parents as qualifying relatives: In Monreal the parents of the
respondent had been LPRs for 3 years; they had no special health
concerns; and the BIA noted that the respondent had siblings in
Dallas who “presumably” could help parents if necessary.
8.
Other factors:
a.
b.
Other Adjustment possibilities
i.
The respondent did / did not investigate the
possibility of her employer filing a visa petition on
her behalf.
ii.
The respondent is the beneficiary of an approved
visa petition. Although not currently available, the
respondent then does have the potential for
returning to the United States as an immigrant in
the not too distant future. (If waiver to 10 year bar
is available)
Breakup of community ties causing emotional strain on
parents or children:
i.
c.
The respondent’s ties to her church and
community, and her volunteer activities are
evidence of involvement and contribution to the
community and there will be emotional hardship
upon having to separate from these ties. Such ties,
however, can be established in the respondent’s
native country and the emotional hardship upon
separation does not amount to an exceptional and
extremely unusual hardship.
Factors mitigating weight of claim of immersion into
United States society
i.
The respondent claims she is fully integrated,
immersed, or acculturated to this society but has
not demonstrated a willingness or ability to follow
certain of this society’s basic requirements such as
(for example):
ii.
(1)
obeying criminal code
(2)
paying taxes owed
(3)
filing non-fraudulent tax forms
(4)
driving with a valid license and car
insurance
(5)
no welfare fraud
(6)
obtaining the required licenses for doing
business,
These factors do undercut the respondent’s claim
of acculturation and membership in this society.
Summary: The respondents here, like in Monreal, seem to be “really good people.” But
that is not the standard for cancellation. The bottom line is that the types of hardships
presented by the respondent, although without question significant to him, are the types
of hardships expected by most aliens who now face the prospect of return after living in
the United States for many years. Like in Monreal, the respondent “has not provided
evidence to establish that his qualifying relatives would suffer hardship that is
substantially different from, or beyond, that which would normally be expected from the
deportation of an alien with close family members here.” Accordingly, on consideration
of all the factors of record both individually and cumulatively, the application for
cancellation of removal must be denied.
ORDERS
IT IS HEREBY ORDERED that the respondent’s application for cancellation of
removal be granted / denied.
IT IS FURTHER ORDERED that the respondent’s request for voluntary departure in
lieu of removal be denied. (OR)
IT IS FURTHER ORDERED that the respondent be granted voluntary departure, in lieu
of removal, and without expense to the United States Government on or before
_____________ (maximum 60 calendar days from the date of this order).
IT IS FURTHER ORDERED that the respondent shall post a voluntary departure bond
in the amount of $_______________ with the Department of Homeland Security on or
before ______________ (five business days from the date of this order).
IT IS FURTHER ORDERED that, if required by the DHS, the respondent shall present
to the DHS all necessary travel documents for voluntary departure within 60 days.
IT IS FURTHER ORDERED that, if the respondent fails to comply with any of the
above orders, the voluntary departure order shall without further notice or proceedings
vacate the next day, and the respondent shall be removed from the United States to
__________ on the charge(s) contained in the Notice to Appear.
WARNING TO THE RESPONDENT: Failure to depart as required means you could be
removed, you may have to pay a civil penalty of $1000 to $5000, and you would
become ineligible for voluntary departure, cancellation of removal, and any change or
adjustment of status for 10 years to come.
APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any
appeal is due in the hands of the Board of Immigration Appeals on or before 30 calendar
days from the date of service of this decision.
_____________________________
Immigration Judge
RETURN TO GENERIC ORAL DECISION FORMAT