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.        Review the documents, affidavits, and witness testimony. Enter credibility findings and determine what weight to give to the evidence.

 

2.         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 Campos-Torres, 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. Ibarra-Flores 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 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).

 

                                    (6)       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.

 

            c.         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); 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 only.

 

            e.         Moreover, as a matter of proof / evidence, the respondent:

 

                        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.

 

            f.         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):

 

                        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.]

 

5.         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); Ramirez-Durazo 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.       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:

 

            b.         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.         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)

 

            b.         Breakup of community ties causing emotional strain on parents or children:

 

                        i.         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.

 

            c.         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):

 

                                    (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,

 

                        ii.        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




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