TO GENERIC ORAL DECISION FORMAT
REAL ID - 240A(b)(1)
STATES DEPARTMENT OF JUSTICE
OFFICE FOR IMMIGRATION REVIEW
No: A________ Date:
the Matter of )
IN REMOVAL PROCEEDINGS
Section 212(a)( )( ) [Or 237(a)( )( )] of the Immigration and Nationality
Cancellation of removal for non-permanent resident; voluntary departure
BEHALF OF RESPONDENT: ON
BEHALF OF DHS:
Attorney at Law ________________________
DECISION AND ORDER OF THE IMMIGRATION JUDGE
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
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
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 –
[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.
[for section 237 charges:] by the INS by clear and convincing
evidence. Section 240(c)(3) of the Act.
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
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.
be eligible for cancellation of removal under section 240A(b)(1) an
applicant must prove that she (the applicant):
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;
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);
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);
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.
this case the respondent has ___ (number) qualifying relatives. LIST
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).
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
(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
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.
did the respondent begin continuous physical presence?
is a factual question: The REAL ID expects the applicant to present
evidence that is reasonably obtainable.
the documents, affidavits, and witness testimony. Enter credibility
findings and determine what weight to give to the evidence.
if alien established entry by 10 years prior to service of NTA, is
there proof of continuous physical presence since that time?
terminates continuous physical presence?
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 Campos-Torres,
22 I&N Dec. 1289 (BIA 2001).
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.
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).
breaks continuous physical presence?
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.
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.
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).
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. Ibarra-Flores
v. Gonzales, 439 F.3d 614 (9th Cir. 2006).
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).
it may be found that a presence-breaking 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).
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.
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.
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).
Moral Character is defined in Section 101(f) of the Act.
bars involve criminal convictions, engaging in alien smuggling, and
false testimony under oath.
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).
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).
Bars under 240A(b)(1)(C):
the respondent been convicted of an offense barring him from cancellation
under section 240A(b)(1)(C) of the Act?
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).”
is no time limit.
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.
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).
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
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 _________.
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.
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.
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.
Court has weighed all the evidence of record both individually and
cumulatively on the issue of exceptional and extremely unusual hardship.
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
at 59 or “limited to ‘truly exceptional’ situations,”
Id. at 62.]
Upon examination, the
Court concludes that there are:
facts to meaningfully distinguish this case from the result in [Matter
of Monreal], [Matter
of Andazola]. OR,
are a number of distinguishing factors that warrant a favorable finding
to the respondents.
of a few potential distinguishing factors to watch for:
from different countries
number of siblings - primarily as an economic factor
separation - (if a natural outcome, not if manufactured separation)
substantially older - fewer job possibilities
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.
respondents have grandchildren
unavailability of 212(a)(9)(C)(v) waiver to reenter.
of respondent and any witnesses:
means: The respondent expressed concern that if deported his
economic circumstances may result in exceptional and extremely unusual
hardship to his qualifying relatives.
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
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.
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
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); Ramirez-Durazo
v. INS, 794 F.2d 491 (9th Cir. 1986); Mejia-Carrillo
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
as a matter of proof / evidence,
not inquired as to possibility of employment in home country.
employment skills which would transfer.
not shown the ownership of a business or home that would have to be
sold, much less sold at a loss.
are investments that she made (after service of NTA) or (with full
knowledge that she had no status in this country).
whether, if respondent sold his assets, he would be going returning
with sufficient funds to aid in readjustment.
from other financial obligations: Support payments / “particular
or unusual psychological hardship” - Tukhowinich)
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).
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.
in the United States: (If children are staying in United
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.
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
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.]
in the United States: (If children are going to parent’s
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); Ramirez-Durazo
v. INS, 794 F.2d 491 (9th Cir. 1986) (all suspension of deportation
cases cited for comparison purposes only).
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.
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).
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:
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).
factors reflecting children in good health vs. health problems
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.
The separation of the children from the grandparents and friends was
not found to be sufficient.
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).
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).
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
respondent did / did not investigate the possibility of her employer
filing a visa petition on her behalf.
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)
of community ties causing emotional strain on parents or children:
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.
mitigating weight of claim of immersion into United States
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):
non-fraudulent tax forms
with a valid license and car insurance
the required licenses for doing business,
factors do undercut the respondent’s claim of acculturation
and membership in this society.
The respondents here, like in Monreal,
seem to be “really good people.” But that is not the standard
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.
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
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
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.
TO GENERIC ORAL DECISION FORMAT