In Precedent Decision, Board of Immigration Appeals Reverses Immigration Judge and Finds Requisite L

In a recent precedent decision, In re Recinas, the Board of Immigration Appeals (“BIA”) reversed an Immigration Judge’s denial of Cancellation of Removal for a single mother of six, and found that “exceptional and extremely unusual hardship” existed in her application for such relief from deportation.

As discussed in earlier articles in this column, “Cancellation of Removal” (COR) is a form of relief from removal (deportation) that Congress created as part of the Illegal Immigration and Immigrant Responsibility Act (IIRIRA) of 1996. COR 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, and has not been convicted of specified criminal offense. Persons seeking COR must also show that their removal would result in “exceptional and extremely unusual hardship” to their U.S. citizen or lawful permanent resident (LPR) spouse, child, or parent; unlike the former Suspension of Deportation, which COR replaced, hardship to the alien does not count in determining hardship.

The conclusion reached in In re Recinas, 23 I&N Dec. 467 (BIA 2002), is a positive precedent in BIA jurisprudence because prior decisions that examined the kind of circumstances that could constitute “exceptional and extremely unusual hardship” for COR applications did not bode well for aliens who had been ordered deported. In its two previous seminal cases of Matter of Monreal, 23 I&N Dec. 56 (BIA May 4, 2001), and Matter of Andazola, 23 I&N Dec. 319 (BIA 2002), the BIA did not find that “exceptionally and extremely unusual hardship” existed, in spite of the presence of compelling equities such as U.S. citizen children and economic hardship. These two BIA decisions demonstrated that it has become more difficult in the past several years for aliens to obtain relief from removal, in keeping with Congress’ intent when creating COR.

In re Recinas finally sheds some light on the type of hardship that the BIA considers “exceptional and extremely unusual.” In this case, the respondent was a single mother of six children (four U.S. citizens, two without status), who raised and supported the children on her own. The U.S. citizen children could not speak Spanish well and had never been to Mexico, the mother’s native country. All of the respondent’s parents and siblings were all either U.S. citizens or LPR’s, and the respondent had no immediate family in Mexico to return to or help her. The BIA also recognized that the respondent would have no means of immigrating to the United States in the foreseeable future, since there is a huge backlog in visa numbers in the family preference categories for Mexico.

All of these factors, analyzed cumulatively, moved the BIA to find that the respondent had a heavy burden as the sole financial and familial support for her six children, and that upon her removal to Mexico, her U.S. citizen children “would suffer hardship that is substantially beyond that which would ordinarily be expected to result from the person’s departure.”
Consulting a knowledgeable and experienced immigration attorney is critical to ensuring a successful defense against an order of removal.

Brief synopsis of case
In a recent precedent decision, the Board of Immigration Appeals reversed an Immigration Judge and found that “exceptional and extremely unusual hardship” existed in a case for Cancellation of Removal.