In re Recinas
| Citation | 23 I&N Dec. 467 |
| Decision Date | 19 September 2002 |
| Docket Number | File A75 696 573.,Interim Decision Number 3479 |
| Parties | In re Ariadna Angelica Gonzalez RECINAS, et al., Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondents have appealed from the decision of an Immigration Judge dated December 18, 2000, denying their application for cancellation of removal pursuant to section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2000). The appeal will be sustained.
The adult respondent is a 39-year-old native and citizen of Mexico. She is the mother of four United States citizen children, aged 12, 11, 8, and 5, and the two minor respondents, aged 15 and 16, both of whom are natives and citizens of Mexico. Her parents are lawful permanent residents and her five siblings are United States citizens. She is divorced and has no immediate family in Mexico.
The three respondents entered the United States in 1988 on nonimmigrant visas and stayed longer than authorized. Except for a brief absence in 1992, they have remained in this country since their initial entry.
The sole issue on appeal is whether the Immigration Judge erred in finding that the respondent failed to demonstrate that her removal would result in exceptional and extremely unusual hardship to her four United States citizen children and/or her lawful permanent resident parents.1 See section 240A(b) of the Act.
Congress created the relief of cancellation of removal under section 240A(b)(1) of the Act as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546. Cancellation of removal is available to an alien who has been physically present in the United States for at least 10 years, has been a person of good moral character, has not been convicted of a specified criminal offense, and has established that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a United States citizen or lawful permanent resident. This case requires us to interpret the "exceptional and extremely unusual hardship" standard.
In Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), we first considered the "exceptional and extremely unusual" hardship standard in a precedent decision in the case of a 34-year-old Mexican national who was the father of three United States citizen children. We held that to establish exceptional and extremely unusual hardship under section 240A(b) of the Act, an alien must demonstrate that his or her spouse, parent, or child would suffer hardship that is substantially beyond that which would ordinarily be expected to result from the person's departure. We specifically stated, however, that the alien need not show that such hardship would be "unconscionable." Id. at 60. We also noted that, in deciding a cancellation of removal claim, consideration should be given to the age, health, and circumstances of the qualifying family members, including how a lower standard of living or adverse country conditions in the country of return might affect those relatives. Id. at 63.
After reviewing the case, we dismissed the respondent's appeal, finding that he had not satisfied the new hardship standard. We noted that the respondent had been working for 10 years at his uncle's business, but had a brother living in Mexico who also worked for the same business. Our decision emphasized that the respondent was in good health and would be able to work and support his United States citizen children in Mexico. We further found that, upon his return to Mexico, the respondent would be reunited with family members, including his wife (the mother of their three children), who had already returned to Mexico with one of the children. Id. at 64. Finally, we noted that the respondent's children were in good health and that the eldest, who was 12 years old, could speak, read, and write Spanish. Id.
We revisited the issue in Matter of Andazola, 23 I&N Dec. 319 (BIA 2002), finding that the exceptional and extremely unusual hardship standard was not met in the case of a single Mexican woman. The respondent had two United States citizen children, who were 11 and 6 years old. Their father (who apparently had authorization to remain in the United States) contributed financially to the family, was a presence in the lives of the children, and could continue to help support the family upon their return to Mexico. All of the respondent's siblings were living in the United States, but were without documentation. The respondent had not shown that her United States citizen children would be deprived of all schooling, or of an opportunity to obtain any education. In denying relief, we considered it "significant" that the respondent had accumulated assets, including $7,000 in savings and a retirement fund, and owned a home and two vehicles. Id. at 324. We noted that these assets could help ease the family's transition to Mexico. Accordingly, we found that the case presented a common fact pattern that was insufficient to satisfy the exceptional and extremely unusual hardship standard. Id.
While any hardship case ultimately succeeds or fails on its own merits and on the particular facts presented, Matter of Andazola and Matter of Monreal are the starting points for any analysis of exceptional and extremely unusual hardship. Cancellation of removal cases coming before the Immigration Judges and the Board must therefore be examined under the standards set forth in those cases.
In the present case, the adult respondent is a single mother of six children, four of whom are United States citizens. The respondent and her children have no close relatives remaining in Mexico. Her entire family lives in the United States, including her lawful permanent resident parents and five United States citizen siblings. As in Matter of Andazola, the respondent's mother serves as her children's caretaker and watches the children while the respondent manages her own motor vehicle inspection business.
The respondent is divorced from the father of her United States citizen children. Although the respondent's former husband at one point was paying $146.50 per month in child support, there is no indication that he remains actively involved in their lives. He is currently out of status and was in immigration proceedings in Denver as of the date of the respondent's last hearing.
The respondent has been operating her own business performing vehicle inspections for 2 years. The business has two employees. She reported having $4,600 in assets, which is apparently the value of an automobile she owns. The respondent testified that after 2 months in business her proceeds were $10,000 a month, but she was also repaying her mother and brother money that she and her former husband had borrowed from them. After meeting expenses, her net profits were $400-500 per month.
The respondent's four United States citizen children have all spent their entire lives in this country and have never traveled to Mexico. She and her family live 5 minutes away from her mother, with whom they have a close relationship. According to the respondent, her children, particularly two of her United States citizen children, experience difficulty speaking Spanish and do not read or write in that language.
Finally, the respondent has no alternative means of immigrating to the United States in the foreseeable future. There is a significant backlog of visa availability to Mexican nationals with preference classification. Therefore, the respondent has little hope of immigrating through her United States citizen siblings, or even her parents, should they naturalize.
While this case presents a close question, we find it distinguishable from both Matter of Monreal, supra, and Matter of Andazola, supra. As we noted in those decisions, the exceptional and extremely unusual hardship standard for cancellation of removal applicants constitutes a high threshold that is in keeping with Congress' intent to substantially narrow the class of aliens who would qualify for relief. Matter of Andazola, supra, at 324; Matter of Monreal, supra, at 59-60. Nevertheless, the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief. We consider this case to be on the outer limit of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard will be met. Keeping in mind that this hardship standard must be assessed solely...
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