Matter of Andazola, 23 I&N Dec. 319 (BIA 2002)

Cite as 23 I&N Dec. 319 (BIA 2002) Interim Decision #3467

In re Martha ANDAZOLA-Rivas, Respondent

File A91 431 733 - Phoenix

Decided April 3, 2002

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The respondent, an unmarried mother, did not establish eligibility for cancellation of

removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C.

§ 1229b(b) (2000), because she failed to demonstrate that her 6- and 11-year-old United

States citizen children will suffer exceptional and extremely unusual hardship upon her

removal to Mexico.

(2) The factors considered in assessing the hardship to the respondent’s children include the

poor economic conditions and diminished educational opportunities in Mexico and the fact

that the respondent is unmarried and has no family in that country to assist in their

adjustment upon her return.

FOR RESPONDENT: Christopher J. Stender, Esquire, Phoenix, Arizona

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Barry O’Melinn,

Appellate Counsel

BEFORE: Board En Banc: SCIALABBA, Acting Chairman; DUNNE, Vice Chairman;

HOLMES, HURWITZ, FILPPU, COLE, GRANT, MILLER, OHLSON, HESS,

and PAULEY, Board Members. Dissenting Opinions: ESPENOZA, Board

Member, joined by ROSENBERG, Board Member; OSUNA, Board Member,

joined by SCHMIDT, VILLAGELIU, GUENDELSBERGER, ROSENBERG,

MOSCATO, and

BRENNAN, Board Members.

HURWITZ, Board Member:

In a decision dated March 16, 2000, an Immigration Judge granted the

respondent’s application for cancellation of removal under section 240A(b)

of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) (2000), and

certified his decision to us for review. In addition, the Immigration and

Naturalization Service filed an appeal from the Immigration Judge’s grant of

relief. Oral argument was heard before a panel of the Board on June 22,

2001. The Service’s appeal will be sustained and the respondent will be

granted voluntary departure in lieu of removal.

The parties in this case agree that the respondent has both the continuous

physical presence and the good moral character required for cancellation of

removal under section 240A(b) of the Act. The only issue on appeal is

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whether her removal from the United States would result in “exceptional and

extremely unusual hardship” to her two United States citizen children, which

is also required for relief under that section. The Immigration Judge found

that the necessary hardship had been shown, but the Service disagrees.

The record reflects that the respondent is a 30-year-old native and citizen

of Mexico who entered the United States without inspection in August 1985.

She has two United States citizen children, aged 11 and 6. The respondent

has had the same employment for 4 years with a company that provides health

insurance for her and her family, as well as a 401K retirement savings plan.

The respondent bought her own house, valued at $69,000, in 1998. She owns

two vehicles, with a combined value of about $12,000. According to her

testimony, she also has savings of about $7,000.

The respondent testified that she has no relatives in Mexico who could help

her with the children, should she be forced to return there. She further stated

that her mother takes the children to school and looks after them while she

works. All of the respondent’s siblings live in this country, without valid

immigration status, as do her aunts and uncles. The respondent’s older child

testified to her very close relationship with her grandmother. She did not

indicate that she is close to any other relatives in this country.

Although the respondent is not married, when asked at the hearing about the

father of her children, she replied, “We’re okay, we just live together.” She

indicated that he has “some form of temporary permit” in this country. Asked

if he contributes to the household, the respondent said, “He’s working

construction so sometimes he does have a job, sometimes he doesn’t.”

The respondent described the children’s health as “fine.” She stated that

she has had problems with asthma, which is under control, but that this

condition would prevent her from working in the fields in Mexico. She also

does not believe she could get an office job in Mexico, as she has only a sixth

grade education. She is concerned that she would not be able to obtain any

employment in Mexico that would be comparable to the job she has here.

The respondent also stated that the schools are better in this country than

in Mexico, with better facilities and supplies, and access to computers. She

is afraid that her children would not be able to get much education in Mexico,

especially when they get older and reach the point where she would have to

pay for it.

The respondent testified that the main focus of the family’s social life is

the church they attend every week. She also stated that she helps out twice

a month at her younger child’s Head Start program.

Following the removal hearing, the Immigration Judge entered his decision

granting the respondent’s application for cancellation of removal. The

Immigration Judge concluded, after a lengthy discussion, that the “United

States citizen children, particularly Tanya [the 11-year-old], would suffer

hardship of an emotional, academic and financial nature.” This hardship

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“would be of a daunting level.” The Immigration Judge noted that the

children would be uprooted from their current “nurturing environment” and

from their support system. He also stated that they would face discrimination

in Mexico because they are children of a single mother. The Immigration

Judge emphasized the fact that Tanya has little knowledge of “academic

Spanish” and might therefore be placed in a lower grade in school in Mexico.

In addition, he expressed concern that the children may not be able to stay in

school, but rather may have to work to help support the family. He noted that

the respondent has a steady, full-time job here, with good benefits.

Based on these considerations, the Immigration Judge found that the

children “face complete upheaval in their lives and hardship that could

conceivably ruin their lives.” He concluded that such hardship would be

“unconscionable,” and he therefore concluded that the respondent had met the

exceptional and extremely unusual hardship requirement.

After the Immigration Judge rendered his decision in this case, but before

oral argument was held, we issued a precedent decision addressing the

meaning of the term “exceptional and extremely unusual” hardship as used in

the cancellation of removal statute. In Matter of Monreal, 23 I&N Dec. 56,

65 (BIA 2001), we held that an applicant for cancellation under section

240A(b) of the Act must demonstrate that his or her removal would cause

hardship to his or her qualifying relatives that is “substantially different from,

or beyond, that which would normally be expected from the deportation of an

alien with close family members here.”

In Matter of Monreal, supra, the respondent was a 34-year-old man from

Mexico who had lived in this country since 1980. He had three United States

citizen children. The two older children were 12 and 8 years old, and they

lived with the respondent in the United States. His youngest child, an infant,

had returned to Mexico with the respondent’s undocumented wife shortly

before his removal hearing. The respondent’s lawful permanent resident

parents also lived near him.

We concluded that the respondent in Matter of Monreal, supra, had not

shown that his children or his lawful permanent resident parents would suffer

exceptional and extremely unusual hardship if he was removed from the

United States. We recognized that the respondent’s children would suffer

some hardship if they accompanied their father to Mexico, and that they

would likely have fewer opportunities there. However, emphasizing the high

bar Congress had imposed in enacting the “exceptional and extremely unusual

hardship” requirement, we concluded that the bar had not been reached.

The respondent asserts that her case is “completely distinguishable from

Monreal.” She argues that, unlike the respondent in Monreal, she is a single

mother who is the sole support of her United States citizen children. She has

no family able to help her in Mexico. She claims that single mothers face

discrimination in Mexico that will make it even more difficult for her to

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provide a decent life for her children in that country. The respondent argues

that women do not enjoy equal rights in Mexico. They are paid less and

generally hold lower level jobs. There is “institutionalized discrimination

against women,” and a single mother returning to this environment would face

a particularly difficult time trying to support her children. She also points out

that in Monreal, the respondent’s deportation to Mexico was actually going

to reunite him with his family, as his wife and one of his children had already

moved there.

The respondent further argues that the Board should not approach this case

with the assumption that there are many other Mexicans whose situation is

similar to hers, and that the hardship she presents therefore does not rise to

the level of “exceptional and extremely unusual.” The respondent asserts that

her case, like all others, must be decided on its particular facts.

The Service, on the other hand, argues that the instant case is “squarely

governed” by Matter of Monreal, supra. If anything, the Service claims, this

case is weaker than that in Monreal because the respondent’s United States

citizen children are younger and would therefore have an easier time adapting

to life in Mexico. The Service also asserts that this respondent’s return to

Mexico would be somewhat easier because she is not penniless, but has some

assets that would enable her to “set up a better life for her children than many

returnees.”

The Service contends that the hardship presented by the respondent is

similar to that of many Mexican nationals who sought suspension of

deportation under the previous law, and who were found not to have met even

the former “extreme hardship” standard. Finding nothing “unusual, unique, or

exceptional” in this case, the Service asserts that the respondent is in the

same position as hundreds, if not thousands, of other Mexican nationals who

have spent a considerable period of time in this country. According to the

Service, the Immigration Judge’s decision granting cancellation of removal

should therefore be overturned.

We are sympathetic to the respondent’s case and to her situation. We have

no doubt that she and her children will suffer some hardship upon moving to

Mexico. Indeed, as with Matter of Monreal, supra, we believe that, were this

a suspension of deportation case, where only “extreme hardship” must be

shown, we might well grant relief. In this regard, we note that the cases cited

by the respondent at oral argument, and in her brief, address the meaning of

“extreme hardship,” not “exceptional and extremely unusual hardship.” See,

e.g., Salcido-Salcido v. INS, 138 F.3d 1292 (9th Cir. 1998); Gutierrez-

Centeno v. INS, 99 F.3d 1529 (9th Cir. 1996); Casem v. INS, 8 F.3d 700 (9th

Cir. 1993). However, Congress has now imposed a standard of hardship that

is significantly more burdensome than the former “extreme hardship”

standard. We simply cannot find that she has met the very high standard of

the current law.

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We also accept the respondent’s contention that her case must be

considered on its own individual facts. We note, however, that the relative

level of hardship a person might suffer cannot be considered entirely in a

vacuum. It must necessarily be assessed, at least in part, by comparing it to

the hardship others might face.

We have considered the evidence in the record regarding the poor

economic conditions in Mexico, and the respondent’s claim that her

deportation would result in drastic economic consequences to her and her

children. We do not dispute the fact that economic conditions in Mexico are

worse than those in this country. However, it has long been settled that

economic detriment alone is insufficient to support even a finding of extreme

hardship. See Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), and cases cited

therein.

We have also considered the respondent’s claims regarding educational

opportunities for her children. She stated that until 1995, the Mexican

Government did not authorize undocumented aliens to attend their schools,

and that even now the availability of education to undocumented aliens varies

from state to state. She noted further that although the Mexican Government

aspires to provide 9 years of education to every child, it has not actually been

able to implement this goal. Again, we recognize that Mexico likely will not

provide the respondent’s children with an education equal to that which they

might obtain in the United States. However, the respondent has not shown

that her children would be deprived of all schooling or of an opportunity to

obtain any education.

The fact that the respondent has no family to help her in Mexico will likely

make her adjustment to a new life there more difficult. However, we note

that, with the exception of her mother, who appears to have temporary

resident status under the Special Agricultural Worker program, her siblings

are undocumented. In assessing hardship, we should not consider the fact

that the respondent’s extended family is here illegally, rather than in Mexico,

as a factor that weighs in her favor. Further, there is nothing to prevent the

respondent’s family members from sending financial support to her in Mexico,

should it be needed.

We note Board Member Espenoza’s comment in her dissenting opinion that our findings

regarding educational opportunities in Mexico are “internally inconsistent.” We do not find it

inconsistent to recognize that educational opportunities are likely to be fewer in Mexico than

in the United States, while also stating that there has been no showing that the respondent’s

children would be unable to obtain any education in Mexico. Further, we are fully aware of

the importance of education to any child’s future. However, a finding that diminished

educational opportunities result in “exceptional and extremely unusual hardship” would mean

that cancellation of removal would be granted in virtually all cases involving respondents from

developing countries who have young United States citizen or lawful permanent resident

children. This view is not consistent with congressional intent.

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In addition, the respondent testified that the father of her children lives with

her, and that he works in construction and sometimes contributes to the

family’s support. Although the respondent characterizes herself as a single

mother, her testimony reflects that her children’s father has not abandoned

them, but lives with the family. As it is clear that the father has been a part

of the children’s lives, it is also certainly possible that he could provide them

some support in Mexico, if necessary.

We also consider it significant that the respondent has accumulated some

assets in this country. She owns a home and two vehicles, has participated

in a retirement plan, and has savings of about $7,000. Although the house

presumably carries a mortgage, the respondent and her children would not be

penniless upon her return to Mexico. The money she does have would surely

help her in establishing a new life in Mexico.

Finally, we do not doubt that the respondent and her children may face

some special difficulties in Mexico, because she is an unmarried mother.

The evidence presented does suggest that women still do not have equal

opportunities in Mexico, and it may be that the respondent will encounter

some discrimination as an unmarried mother, in addition to the challenges that

unmarried parents everywhere face. However, even considering the potential

hardship caused by the respondent’s status as an unmarried mother, together

with the other hardships described above, we must conclude that she has not

met her burden of establishing that her children will suffer exceptional and

extremely unusual hardship if she is removed to Mexico.

The respondent in this case is young and able to work. Although she

reports suffering from asthma, that condition is apparently under control. She

has developed some job skills. She does have some financial assets that will

aid her in establishing a new life in Mexico. Her children are still relatively

young and are in good health. While they certainly will face some problems

in adapting to life outside the United States, they will likely be able to make

the necessary adjustments.

In sum, we cannot meaningfully distinguish this case from that of Matter

of Monreal, supra. While almost every case will present some particular

hardship, the fact pattern presented here is, in fact, a common one, and the

hardships the respondent has outlined are simply not substantially different

from those that would normally be expected upon removal to a less

developed country. Although the hardships presented here might have been

adequate to meet the former “extreme hardship” standard for suspension of

deportation, we find that they are not the types of hardship envisioned by

Congress when it enacted the significantly higher “exceptional and extremely

unusual hardship” standard. Accordingly, we will sustain the Service’s

appeal from the Immigration Judge’s grant of cancellation of removal. There

being no adverse factors present, we will grant the respondent a period of

voluntary departure in lieu of an order of removal.

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ORDER: The appeal of the Immigration and Naturalization Service is

sustained.

FURTHER ORDER: The decision of the Immigration Judge is vacated.

FURTHER ORDER: In lieu of an order of removal, the respondent is

allowed to voluntarily depart from the United States, without expense to the

Government, within 30 days from the date of this order or any extension

beyond that time as may be granted by the district director. In the event the

respondent fails to so depart, the respondent shall be ordered removed from

the United States.

NOTICE: If the respondent fails to depart the United States within the

time period specified, or any extensions granted by the district director, the

respondent shall be subject to a civil penalty of not less than $1,000, and not

more than $5,000, and shall be ineligible for a period of 10 years for any

further relief under section 240B and sections 240A, 245, 248, and 249 of the

Immigration and Nationality Act. See section 240B(d) of the Act.

DISSENTING OPINION: Cecelia M. Espenoza, Board Member, in

which Lory Diana Rosenberg, Board Member, joined

I join the dissenting opinion of Board Member Osuna. I write separately

to address the reasons why Congress’ mandate that hardship is to be

determined only by looking at the effect on qualifying relatives who are

United States citizens or lawful permanent residents reflects Congress’

principal concern with the impact on stakeholders in United States society.

See section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C.

§ 1229b(b)(1) (2000).

Taking the majority opinion to its inevitable conclusion, it appears that no

United States citizen child of a Mexican national will be able to demonstrate

exceptional and extremely unusual hardship because he or she is deprived of

educational opportunities for financial reasons. In fact, under the

interpretation announced today, it is more than likely that no respondent from

Mexico will qualify for cancellation unless the qualifying relative has severe

medical problems. I do not believe that was the directive of Congress. Nor

is it consistent with our decision in Matter of Monreal, 23 I&N Dec. 56, 60

(BIA 2001), in which we rejected an “unconscionable standard” as higher than

required.

At the same time that Congress heightened the hardship standard from

“extreme hardship” to “exceptional and extremely unusual hardship,” it added

additional restrictions.

In light of these other restrictions, implementing

It is beyond dispute that cancellation of removal is governed by a new standard, which

requires a showing that the undocumented alien (1) has been physically present in the United

States for a continuous period of not less than 10 years immediately preceding the date of

(continued...)

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Congress’ intent need not be accomplished solely by imposing the most

narrow reading of the exceptional and extremely unusual hardship standard.

Although Congress said that the change was made “to emphasize that the alien

must provide evidence of harm to his spouse, parent, or child substantially

beyond that which ordinarily would be expected to result from the alien’s

deportation,” H.R. Conf. Rep. No. 104-828, at 213 (1996), Congress did not

enact provisions to categorically preclude any nationality from this relief.

Thus, our construction of this provision should not result in categorical

exclusion of any nationality.

The majority opinion appears to measure the hardship prong as if that were

the only way in which Congress restricted eligibility for relief. In doing so,

the majority fails to acknowledge the significance of the statutory language

that directs us to focus on the hardship to qualifying relatives. The issue is

whose hardship Congress has directed us to examine and under what

circumstances that hardship rises to a level substantially beyond that which

ordinarily would be expected to result from the alien’s deportation.

By eliminating the relevance of hardship to the respondent, Congress

directed us to focus on the exceptional and extremely unusual hardship to the

United States citizen or lawful permanent resident who would be affected by

the removal of the alien. In determining exceptional and extremely unusual

hardship, our assessment of the hardship to United States citizen children

must take into account both the present and the future impact that ordinarily

would be expected to result from their accompanying the respondent upon

removal. The repercussions that emerge as a consequence of the deprivation

of the opportunity to receive an education in the United States should not be

diminished when evaluating the United States citizen children’s forcible return

to Mexico.

(...continued)

application; (2) has been a person of good moral character during such period; (3) has not been

convicted of specified criminal offenses; and (4) establishes that removal would result in

exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a

citizen of the United States or an alien lawfully admitted for permanent residence. Section

240A(b)(1) of the Act; see also 8 C.F.R. § 240.20 (2001). It is also generally accepted that

Congress enacted the standard it did in response to Matter of O-J-O-, 21 I&N Dec. 381 (BIA

1996); see also H.R. Conf. Rep. No. 104-828 (1996).

Congress knows how to define relief in ways that advantage or disadvantage certain

nationalities. See, e.g., Nicaraguan Adjustment and Central American Relief Act, Pub. L. No.

105-100, tit. II, 111 Stat. 2193, amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997)

(“NACARA”) (providing adjustment of status only for Nicaraguan and Cuban immigrants, and

extending eligibility for suspension of deportation only for certain nationalities); Immigration

Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (disadvantaging certain nationalities in the

allocation of diversity visas); Immigration Reform and Control Act of 1986, Pub. L. No.

99-603, 100 Stat. 3359 (including special provisions for Cuban and Haitian immigrants); cf.

Act of Oct. 3, 1965, 79 Stat. 911 (eliminating the national origins quota system, which had

precluded immigration from Asia and Latin America).

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To adequately address whether the respondent’s United States citizen

children will face exceptional and extremely unusual hardship, we must look

at both the conditions of the educational opportunities in Mexico and the loss

of educational opportunities in the United States. The majority has failed to

properly evaluate the differences in educational opportunities.

In Plyler v. Doe, 457 U.S. 202, 221-22 (1982), the United States Supreme

Court acknowledged the importance of the United States educational process.

In Plyler, the Court refused to deny public education to undocumented alien

children, acknowledging the critical importance of “education in maintaining

our basic institutions, and the lasting impact of its deprivation on the life of

the child.” Id. at 221 (distinguishing education as more than merely a public

benefit). As the Court recognized, “‘[A]s . . . pointed out early in our history,

. . . some degree of education is necessary to prepare citizens to participate

effectively and intelligently in our open political system if we are to preserve

freedom and independence.’” Id. (quoting Wisconsin v. Yoder, 406 U.S. 205,

221 (1972)). The Court concluded that

education provides the basic tools by which individuals might lead economically productive

lives to the benefit of us all. In sum, education has a fundamental role in maintaining the

fabric of our society. We cannot ignore the significant social costs borne by our Nation

when select groups are denied the means to absorb the values and skills upon which our

social order rests.

Plyler v. Doe, supra, at 221.

The Court emphasized that “‘education prepares individuals to be

self-reliant and self-sufficient participants in society.’” Id. at 222 (quoting

Wisconsin v. Yoder, supra, at 221). Nevertheless, under the majority

opinion, the loss of such an education is insufficient to constitute exceptional

and extremely unusual hardship. The future cost, however, will be a citizen

who is permanently handicapped and thus less capable than others of

engaging in the political process.

I do not contend that the Plyler Court’s evaluation of the significance of an

American public education in insuring acculturation to the American ideals

trumps the language used by Congress in section 240A(b) of the Act and

requires a grant of cancellation of removal in the case of every Mexican

national having school-age children. However, the critical importance of such

an education cannot be ignored. The rationalization that a United States

citizen child can always return to the United States when he or she reaches the

age of majority begs the question.

In the case before us, the Immigration Judge found explicitly that “[the

child’s] education would either terminate due to her insufficient knowledge

of Spanish or she would struggle academically in a school which is far

inferior to that she is currently attending.” The Immigration Judge

specifically ruled that “either way, this U.S. citizen child would be denied

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significant educational opportunities which could secure a decent future . . .

[and] such a denial would greatly limit [her] employment and educational

options if she decided to return to the United States.”

Nothing in the majority opinion reflects that the majority properly

considered or weighed the detailed factual findings relating to the children’s

loss of educational opportunities that were made by the Immigration Judge.

Rather, without identifying any error in the findings of the Immigration Judge,

the majority substituted its own factual findings that the educational

opportunities would be diminished but not eliminated altogether.

Moreover, even if it were proper for us to make findings de novo on

appeal, the majority opinion is internally inconsistent. One the one hand, the

majority states that “the respondent has not shown that her children will be

deprived of all schooling or of an opportunity to obtain any education.”

Matter of Andazola, 23 I&N Dec. 319, 323 (BIA 2002). On the other hand,

the majority acknowledges that “until 1995, the Mexican Government did not

authorize undocumented aliens [such as the respondent’s children] to attend

their schools” and that “although the Mexican Government aspires to provide

9 years of education to every child, it has not actually been able to implement

this goal.” Id.

In Plyler v. Doe, supra, at 222 n.20, the Court recognized that the

possibility that only a small proportion of the undocumented children would

become citizens “is not decisive, even with respect to the importance of

education to participation in core political institutions.” As United States

citizens, the children in this case have an unquestionable stake in obtaining an

education that will allow them to participate meaningfully in their country of

citizenship. Thus, the majority’s conclusion that the children’s loss of

educational opportunities is a hardship that is not “substantially different from

those that would normally be expected upon removal to a less developed

country” blatantly disregards the critical importance of an American

education and the future consequences to these children that flow from the

deprivation of such an education. Matter of Andazola, supra, at 324. In

reaching such a conclusion, the majority has overlooked the specific language

used by Congress, which zeroes in specifically on the impact of removal on

the stakeholders.

The decision to remove these citizen children will undoubtedly diminish

their ability to be self-reliant and self-sufficient. Whatever the educational

opportunity that might exist in Mexico, it will be substandard to that which

would exist here. Indeed, “it is doubtful that any child may reasonably be

expected to succeed in life if he is denied the opportunity of an education.”

Plyler v. Doe, supra, at 223. In short, the removal of the United States

citizen children in this case is not merely a return to a country with a lower

standard of living and a poor educational system. It is, in essence, a method

of depriving the citizen children of the valued education that they currently

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enjoy in the United States. This, in turn, is likely to result in a lifetime

hardship that deprives the children of an opportunity to obtain the skills

necessary to meaningfully participate “effectively and intelligently in our

open political system.” Wisconsin v. Yoder, supra, at 221.

The Immigration Judge correctly aggregated the economic, educational, and

emotional consequences to the United States citizen children to find

exceptional and extremely unusual hardship that would be unconscionable in

the event of their mother’s removal. I agree, and note that hardship that is

unconscionable is a greater degree of hardship than we interpreted the statute

to require in Matter of Monreal, supra. Therefore, I dissent.

DISSENTING OPINION: Juan P. Osuna, Board Member, in which Paul

W. Schmidt, Gustavo D. Villageliu, John Guendelsberger, Lory Diana

Rosenberg, Anthony C. Moscato, and Noel Ann Brennan, Board

Members, joined

I respectfully dissent. While this is a close case, in my view the

respondent has shown that her United States citizen children would suffer

exceptional and extremely unusual hardship if she is removed from this

country. I would dismiss the Immigration and Naturalization Service’s appeal

and affirm the Immigration Judge’s grant of cancellation of removal.

This case requires us to apply the “exceptional and extremely unusual

hardship” standard that Congress created as part of section 304 of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, Division C

of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-594, and codified at

section 240A(b)(1) of the Immigration and Nationality Act, 8 U.S.C.

§ 1229b(b)(1) (2000). That provision allows cancellation of removal for 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 specific criminal offenses, and who establishes 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 an alien lawfully admitted for

permanent residence.

Determining what constitutes “exceptional and extremely unusual hardship”

presents a challenge for adjudicators. Reasonable persons can differ on

whether a given set of circumstances rises to the requisite hardship. What is

clear, however, is that each hardship case, to a large extent, succeeds or fails

on its own merits and on whether an applicant for relief is able to present

testimony and documentation that is sufficiently compelling to demonstrate

exceptional and extremely unusual hardship. For the reasons set forth below,

I believe that the respondent in this case has succeeded in doing so.

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I. MATTER OF MONREAL AND THE PRESENT CASE

In Matter of Monreal, 23 I&N Dec. 56 (BIA 2001), we considered for the

first time in a precedent decision the exceptional and extremely unusual

hardship standard, by examining the application for cancellation of removal

of a 34-year-old Mexican national who was the father of three United States

citizen children. In that decision, 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 of such magnitude that his or her

deportation would be “unconscionable” in its effect on a qualifying relative.

Matter of Monreal, supra, at 60. After reviewing the case, we dismissed the

respondent’s appeal from an Immigration Judge’s finding that he had not

satisfied the new hardship standard. The majority finds that the present case

cannot be meaningfully distinguished from Matter of Monreal, supra. I find,

to the contrary, that this case is wholly distinguishable from Matter of

Monreal.

In Matter of Monreal, the respondent was the father of three citizen

children, the oldest two being 12 and 8 years of age. The respondent had

been working for 10 years for his uncle’s business, but acknowledged that he

had a brother living in Mexico who also worked for the uncle’s business. Our

decision emphasized that the respondent was in good health, was able to

work, and would, in fact, be reunited with family members upon his return to

Mexico. Most significantly, we noted that the respondent’s wife, the mother

of the three children, had already returned to Mexico, and the respondent

would be joining her there if removed. Matter of Monreal, supra, at 64.

In the present case, by contrast, the respondent is a single mother who has

no close relatives remaining in Mexico.

In this country, she owns her own

The majority casts doubt on whether the respondent truly is a single mother, pointing to an

exchange during the testimony indicating that the children’s father may at times be a presence

in their lives. However, the Immigration Judge, as the fact finder in this case, determined that

the respondent is a single mother. Nowhere in his decision is there any indication that the

Immigration Judge found the children’s father to be a significant presence in their lives.

Moreover, during the hearing the Immigration Judge repeatedly referred to the respondent as

a “single mother,” and supporting documents in the record confirm that status. In both its

pretrial and appellate briefs, the Service makes no mention of a father, and on the Notice of

Appeal (Form EOIR-26) it mentions the presence of “many uncles and cousins in the Phoenix

area” and a “maternal grandmother,” but not the father. In fact, it was only at oral argument

that the Service argued that the father is a “continuing and real presence” in the lives of the

children.

Despite the Immigration Judge’s findings, and the factual weight of the record, the majority

speculates that the father’s presence is such that the respondent is not truly a single mother.

(continued...)

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home and has steady employment with good benefits, including a retirement

plan and health insurance for herself and her children. She depends on the

help of her mother to look after the children when she works. With only a

sixth grade education and a history of asthma, the respondent quite reasonably

fears that she will be unable to find employment in Mexico that will enable

her to support her children by herself. While I do not minimize the difficulties

that the family in Matter of Monreal will face in Mexico, they are in my view

vastly different from the difficulties that this respondent and her children will

face upon their return there.

I am of course cognizant of the fact that, unlike the former “extreme

hardship” standard for suspension of deportation, which was discussed most

recently in Matter of Kao and Lin, 23 I&N Dec. 45 (BIA 2001), under the

cancellation statute we can consider only the hardship to the respondent’s

qualifying relatives, and not to the respondent herself. Some factors that we

may have considered under the extreme hardship standard as pertaining solely

to an applicant for suspension of deportation may not be relevant for

cancellation of removal purposes. However, as we recognized in Matter of

Monreal, supra, other factors may be considered if they affect the hardship

of the qualifying relative, and assessment of which factors are relevant and

which are not must be undertaken on a case-by-case basis.

In many cases, it is artificial and defies logic to attempt to consider the

relatives’ hardship without some consideration of the hardship to the

respondent. In a family unit, hardship on a parent essentially translates to

hardship on the rest of the family. This is particularly true where the

respondent is the parent of minor children. The hardship is further magnified

when, as here, the family has only one parent, who must shoulder the burden

of caring and providing for the children by herself. In the present case, we

would be removing a single mother with no significant job skills to a poor,

developing country where she has no family to help her. The hardships she

will encounter will most certainly accrue to her children. For example, the

respondent’s difficulties in finding a place to live and finding the type of

employment that will enable her to support her children will greatly add to the

hardships the children will already face in adjusting to an unknown country.

I emphasize that, unlike many other cases, we are not talking here about a

two-parent family where at least one of the parents has a professional,

university, or even secondary level of education. Here, the respondent is a

(...continued)

In my view, the more appropriate course is to rely on the Immigration Judge’s fact finding that

the father is not a significant presence and that this respondent is a single mother responsible

for two United States citizen children. According to the Immigration Judge, “The Court shares

the respondent’s concern and finds it unlikely that the respondent, a single mother in Mexico,

would be able to adequately provide for her United States citizen children.” (Emphasis added.)

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single mother who was forced to leave school when she was 13 years of age,

and who consequently has only been able to work in relatively low-paying

jobs. Such jobs in the United States may provide enough income and benefits

to support a family of three. In Mexico, it is much harder or even impossible

to do so. It is not a stretch to find that a family placed in that position would

face “exceptional and extremely unusual hardship,” especially where there is

no evidence that they could rely on a family structure already in place in

Mexico.

II. NINTH CIRCUIT CASE LAW

It is also significant that this case arises within the jurisdiction of the

United States Court of Appeals for the Ninth Circuit, whereas Matter of

Monreal, supra, arose in the Fifth Circuit. The Ninth Circuit has made it

clear that in assessing hardship, we are required to consider all factors

presented, including economic conditions and lack of family ties in the

country of return. I recognize that Ninth Circuit case law involves the

extreme hardship requirement under the former suspension of deportation

statute, not the present exceptional and extremely unusual hardship standard

for cancellation of removal. However, because assessments of “hardship” are

essentially factual, it is appropriate to look to similar contexts for factors to

consider. See generally Osuchukwu v. INS, 744 F.2d 1136, 1140 (5th Cir.

1984).

It is therefore proper to look to Ninth Circuit precedent for guidance

on how to weigh hardship generally, in cases arising in that circuit.

In Gutierrez-Centeno v. INS, 99 F.3d 1529 (9th Cir. 1996), the respondents

were a single mother and her two minor children. The court chastised the

Board for not adequately considering the fact that the respondents had

significant family ties in the United States and no real ties remaining in their

native Nicaragua. The court emphasized that the adult respondent was a

single mother supporting two children who would be returning to an

economically deprived country. The court also held that the Board should

have considered the fact that the children (who were also suspension

applicants, not United States citizens or lawful permanent residents) would

likely face difficulty in adjusting to life in Nicaragua. In facts reminiscent of

those in the present case, the court was particularly concerned about the

children’s education, especially the younger child who could barely read or

write Spanish.

In Tukhowinich v. INS, 64 F.3d 460 (9th Cir. 1995), the court found that

the Board failed to consider political unrest in Thailand, again emphasizing

that conditions in the country of return are important in assessing hardship.

In that case, the court also noted that it was not necessary for the respondent

Once the hardship factors are identified, a separate assessment must follow as to whether

they rise to the required hardship level.

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to show that she would be completely unemployable in Thailand. It pointed

out that with her good job in the United States, the respondent had become the

sole support of her parents and other family members in Thailand. It found

that her inability to continue to fulfill her duty of supporting her family would

be a severe psychological hardship resulting from the economic loss. In so

finding, the court noted that “‘the personal hardships that flow from the

economic detriment,’” id. at 463 (quoting Ramirez-Gonzalez v. INS, 695 F.2d

1208, 1211 (9th Cir. 1983)), are a factor to consider in assessing hardship,

and the Board “should have considered the implications of her economic

loss.” Id. at 464. As in Tukhowinich, the respondent in this case would face

devastating economic detriment in Mexico, and that factor, because it also

affects the citizen children, needs to be carefully considered.

The Ninth Circuit has also consistently held that although the birth of

United States citizen children is not sufficient in itself to warrant a finding of

extreme hardship, the effect of deportation on citizen children must be very

carefully considered. See, e.g., Casem v. INS, 8 F.3d 700 (9th Cir. 1993),

and cases cited therein. In that case, the court also noted the difference

between the adjustments required by very young children accompanying their

parents to a new country and the adjustments faced by children already in

school. Both of the citizen children in this case are now of school age, and

the Immigration Judge noted, as the court did in Gutierrez-Centeno v. INS,

supra, that they have little knowledge of “academic Spanish.”

III. CONGRESSIONAL INTENT

I recognize that, in enacting the cancellation statute, Congress intended to

substantially narrow the class of aliens who would qualify for cancellation of

removal, as opposed to those who qualified under the prior suspension

statute. At oral argument in this case, the Service argued that the term

exceptional and extremely unusual hardship should be strictly defined to

fulfill Congress’ intent in this regard, i.e., to make the class of aliens that

would benefit from cancellation of removal much smaller than the class that

benefited from suspension of deportation. See H.R. Conf. Rep. No. 104-828

(1996); Matter of Monreal, supra, at 59. The Service’s argument has merit,

and I agree that because the exceptional and extremely unusual hardship

standard is more demanding than the old extreme hardship standard, fewer

aliens will be able to meet the standard and thereby qualify for cancellation.

I do not believe, however, that Congress intended to make the standard so

demanding that it becomes a bar to all but the rarest of cases.

In this regard, Congress accomplished its goal of narrowing the class of

aliens eligible for nonpermanent resident cancellation of removal in a number

of ways, before the hardship standard is even assessed. An applicant for

cancellation of removal must have 10 years of physical presence in the

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United States, as opposed to only 7 years under the suspension statute.

Section 240A(b)(1) of the Act. He or she must satisfy the physical presence

requirement prior to the issuance of a Notice to Appear. Section 240A(d) of

the Act. There is an overall cap of 4000 cancellation grants per year.

Section 240A(e) of the Act. Further, as already noted, only hardship to

qualifying family members of the cancellation applicant can be considered.

In all these ways, the number of aliens for whom cancellation of removal can

be granted has already been greatly narrowed. We do not need, in addition,

a strict and narrow reading of the exceptional and extremely unusual hardship

standard to further Congress’ goal of reducing the number of aliens eligible

for relief.

In fact, adopting an overly strict reading of the statute carries the

danger of rendering cancellation of removal meaningless for all but a very

small number of aliens. I do not believe that is what Congress intended.

IV. IMMIGRATION JUDGE’S DECISION

The determination of whether an alien has satisfied the exceptional and

extremely unusual hardship requirement is inherently fact specific and

requires substantial and careful weighing of all the hardship factors presented.

For this reason, an Immigration Judge’s factual findings are particularly

important in a cancellation of removal case, especially a close case like this

one. Here, unlike in Matter of Monreal, supra, the Immigration Judge found

that the respondent had shown the requisite level of hardship. Indeed, the

Immigration Judge made this finding even after first concluding that the

hardship to the respondent’s children had to be “unconscionable” to meet the

exceptional and extremely unusual hardship standard. In Matter of Monreal,

supra, we specifically rejected an unconscionable standard as too high. Now,

the majority rejects the Immigration Judge’s finding that the hardship the

In my view, nonpermanent resident cancellation of removal cases are different from many

other cases coming before the Immigration Judges and the Board. This applicant, like many

cancellation applicants, entered the United States illegally. While I do not condone this and

believe in the strong enforcement of our laws against illegal entry, I also believe that this

respondent’s case, and those of persons like her, should be considered in a different light from

the cases of criminal or other undesirable aliens. This respondent and her family exhibit many

of the values that we, as a society, purport to value. They are hardworking, law-abiding

people with strong family values. They pay taxes, are active in their schools and churches,

own their own homes, and do not depend on public assistance. We have always required

extraordinary equities from criminal aliens before allowing them to stay. Within the confines

of the cancellation of removal statute that we are bound to apply, we should not require the

same when confronted with individuals such as this respondent. See generally Eric Schmitt,

U.S.-Mexico Talks Produce Agreement on Immigration Policy, N.Y. Times, Aug. 10, 2001,

at A4 (quoting United States Secretary of State Colin L. Powell as stating that Mexicans living

in the United States illegally but who have jobs, pay taxes, and are raising United States citizen

children would be included in policy initiatives designed to promote legal residency in this

country).

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respondent’s children would face if removed to Mexico would meet that high

standard and concludes that the hardship would not even meet the somewhat

lower standard we set forth in Matter of Monreal.

As the fact finder in this case, the Immigration Judge was meticulous in

reviewing the record and in attempting to assess the hardship issue. The

Immigration Judge recounted the respondent’s testimony about the hardship

that her oldest child, 11-year-old Tanya, would face in Mexico. For example,

in the United States, Tanya’s school classes are conducted in English, and she

is performing very well in school. In Mexico, Tanya would suffer

academically since she has limited knowledge of “academic” Spanish; she

would be unable to keep up with her peers and would probably be forced to

enroll at a lower grade level, in addition to being placed in an educational

system that is substandard when compared to that in the United States. The

Immigration Judge supported his findings with documentary evidence in the

record pertaining to Mexico’s educational system.

The Immigration Judge concluded that the citizen children would suffer

exceptional and extremely unusual hardship if they accompany their mother

to Mexico. Again, the Immigration Judge supported this decision with

documentary evidence highlighting the difficulties that persons in the

respondent’s position face in Mexico. In considering all of the factors in this

case, the Immigration Judge applied a “totality of the circumstances” test to

find it appropriate to grant cancellation of removal. That is a reasonable

approach. Indeed, each one of the factors considered by the Immigration

Judge individually may not be enough to meet the exceptional and extremely

unusual hardship standard. Taking those factors together, however, I agree

with the Immigration Judge that with this family’s particular set of

circumstances, the citizen children would suffer exceptional and extremely

unusual hardship if the respondent is removed to Mexico.

The Immigration Judge thoughtfully considered this case, and I find

inadequate reasons for reversing his decision. The standard set forth in

Matter of Monreal, supra, at 65, is that a cancellation applicant must show

hardship to qualifying relatives that is “substantially different from, or

beyond, that which would normally be expected from the deportation of an

alien with close family members here.” For the reasons discussed above, I

believe that the respondent has made such a showing, and that the Immigration

Judge’s grant of cancellation should be upheld and the Service’s appeal

dismissed.

Accordingly, I respectfully dissent.

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