RECINAS

Cite as 

 (BIA 2002)                                    Interim Decision #3479




  In re Ariadna Angelica Gonzalez RECINAS, et al., Respondent
                           File A75 696 573 - Los Angeles
                             Decided September 19, 2002
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) The respondent, a single mother who has no immediate family remaining in Mexico,
provides the sole support for her six children, and has limited financial resources, established
eligibility for cancellation of removal under section 240A(b) of the Immigration and Nationality
Act, 8 U.S.C. § 1229b(b) (2002), because she demonstrated that her United States citizen
children, who are 12, 11, 8, and 5 years old, will suffer exceptional and extremely unusual
hardship upon her removal to her native country.
(2) The factors considered in assessing the hardship to the respondent’s children include the
heavy burden imposed on the respondent to provide the sole financial and familial support for
her six children if she is deported to Mexico, the lack of any family in her native country, the
children’s unfamiliarity with the Spanish language, and the unavailability of an alternative
means of immigrating to this country.
FOR RESPONDENTS: German T. Flores, Esquire, Orem, Utah

BEFORE: Board En Banc: SCIALABBA, Chairman; DUNNE, Vice Chairman; SCHMIDT,
HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, GUENDELSBERGER,
ROSENBERG, GRANT, MOSCATO, MILLER, BRENNAN, ESPENOZA, OSUNA,
OHLSON, HESS, and PAULEY, Board Members.
VILLAGELIU, Board Member:

  The respondents have appealed from the decision of an Immigration Judge
dated December 18, 2000, denying their application for cancellation of
removal pursuant to section 240A(b) of the Immigration and Nationality Act,
8 U.S.C. § 1229b(b) (2000). The appeal will be sustained.
                          I. FACTUAL BACKGROUND
   The adult respondent is a 39-year-old native and citizen of Mexico. She
is the mother of four United States citizen children, aged 12, 11, 8, and 5, and
the two minor respondents, aged 15 and 16, both of whom are natives and
citizens of Mexico. Her parents are lawful permanent residents and her five
siblings are United States citizens. She is divorced and has no immediate
family in Mexico.


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   The three respondents entered the United States in 1988 on nonimmigrant
visas and stayed longer than authorized. Except for a brief absence in 1992,
they have remained in this country since their initial entry.
                                       II. ISSUE
   The sole issue on appeal is whether the Immigration Judge erred in finding
that the respondent failed to demonstrate that her removal would result in
exceptional and extremely unusual hardship to her four United States citizen
children and/or her lawful permanent resident parents.1 See section 240A(b)
of the Act.
                                   III. ANALYSIS
   Congress created the relief of cancellation of removal under section
240A(b)(1) of the Act as part of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Division C of 

 Stat.
3009-546. Cancellation of removal is available to an alien who has been
physically present in the United States for at least 10 years, has been a person
of good moral character, has not been convicted of a specified criminal
offense, and has established that removal would result in exceptional and
extremely unusual hardship to the alien’s spouse, parent, or child, who is a
United States citizen or lawful permanent resident. This case requires us to
interpret the “exceptional and extremely unusual hardship” standard.
        A. Exceptional and Extremely Unusual Hardship Standard
   In Matter of Monreal, 

 (BIA 2001), we first considered the
“exceptional and extremely unusual” hardship standard in a precedent
decision in the case of a 34-year-old Mexican national who was the father of
three United States citizen children. We held that to establish exceptional and
extremely unusual hardship under section 240A(b) of the Act, an alien must
demonstrate that his or her spouse, parent, or child would suffer hardship that
is substantially beyond that which would ordinarily be expected to result from
the person’s departure. We specifically stated, however, that the alien need
not show that such hardship would be “unconscionable.” 

. We also
noted that, in deciding a cancellation of removal claim, consideration should
be given to the age, health, and circumstances of the qualifying family
members, including how a lower standard of living or adverse country
conditions in the country of return might affect those relatives. 

.


1
  As the Immigration Judge noted, the minor respondents do not have a qualifying relative for
purposes of cancellation of removal. See section 240A(b)(1)(D) of the Act.

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   After reviewing the case, we dismissed the respondent’s appeal, finding
that he had not satisfied the new hardship standard. We noted that the
respondent had been working for 10 years at his uncle’s business, but had a
brother living in Mexico who also worked for the same business. Our
decision emphasized that the respondent was in good health and would be
able to work and support his United States citizen children in Mexico. We
further found that, upon his return to Mexico, the respondent would be
reunited with family members, including his wife (the mother of their three
children), who had already returned to Mexico with one of the children. Id.
at 64. Finally, we noted that the respondent’s children were in good health
and that the eldest, who was 12 years old, could speak, read, and write
Spanish. Id.
   We revisited the issue in Matter of Andazola, 

 (BIA
2002), finding that the exceptional and extremely unusual hardship standard
was not met in the case of a single Mexican woman. The respondent had two
United States citizen children, who were 11 and 6 years old. Their father
(who apparently had authorization to remain in the United States) contributed
financially to the family, was a presence in the lives of the children, and could
continue to help support the family upon their return to Mexico. All of the
respondent’s siblings were living in the United States, but were without
documentation. The respondent had not shown that her United States citizen
children would be deprived of all schooling, or of an opportunity to obtain
any education. In denying relief, we considered it “significant” that the
respondent had accumulated assets, including $7,000 in savings and a
retirement fund, and owned a home and two vehicles. 

. We noted
that these assets could help ease the family’s transition to Mexico.
Accordingly, we found that the case presented a common fact pattern that was
insufficient to satisfy the exceptional and extremely unusual hardship
standard. 

   While any hardship case ultimately succeeds or fails on its own merits and
on the particular facts presented, Matter of Andazola and Matter of Monreal
are the starting points for any analysis of exceptional and extremely unusual
hardship. Cancellation of removal cases coming before the Immigration
Judges and the Board must therefore be examined under the standards set
forth in those cases.
                              B. Hardship Factors
  In the present case, the adult respondent is a single mother of six children,
four of whom are United States citizens. The respondent and her children
have no close relatives remaining in Mexico. Her entire family lives in the
United States, including her lawful permanent resident parents and five United
States citizen siblings. As in Matter of Andazola, the respondent’s mother

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serves as her children’s caretaker and watches the children while the
respondent manages her own motor vehicle inspection business.
   The respondent is divorced from the father of her United States citizen
children. Although the respondent’s former husband at one point was paying
$146.50 per month in child support, there is no indication that he remains
actively involved in their lives. He is currently out of status and was in
immigration proceedings in Denver as of the date of the respondent’s last
hearing.
   The respondent has been operating her own business performing vehicle
inspections for 2 years. The business has two employees. She reported
having $4,600 in assets, which is apparently the value of an automobile she
owns. The respondent testified that after 2 months in business her proceeds
were $10,000 a month, but she was also repaying her mother and brother
money that she and her former husband had borrowed from them. After
meeting expenses, her net profits were $400-500 per month.
   The respondent’s four United States citizen children have all spent their
entire lives in this country and have never traveled to Mexico. She and her
family live 5 minutes away from her mother, with whom they have a close
relationship. According to the respondent, her children, particularly two of
her United States citizen children, experience difficulty speaking Spanish and
do not read or write in that language.
   Finally, the respondent has no alternative means of immigrating to the
United States in the foreseeable future. There is a significant backlog of visa
availability to Mexican nationals with preference classification. Therefore,
the respondent has little hope of immigrating through her United States citizen
siblings, or even her parents, should they naturalize.
                         C. Assessment of Hardship
   While this case presents a close question, we find it distinguishable from
both Matter of Monreal, supra, and Matter of Andazola, supra. As we noted
in those decisions, the exceptional and extremely unusual hardship standard
for cancellation of removal applicants constitutes a high threshold that is in
keeping with Congress’ intent to substantially narrow the class of aliens who
would qualify for relief. Matter of Andazola, supra, at 324; Matter of
Monreal, supra, at 59-60. Nevertheless, the hardship standard is not so
restrictive that only a handful of applicants, such as those who have a
qualifying relative with a serious medical condition, will qualify for relief.
We consider this case to be on the outer limit of the narrow spectrum of cases
in which the exceptional and extremely unusual hardship standard will be met.
Keeping in mind that this hardship standard must be assessed solely with
regard to the qualifying relatives in this case, we find the following factors to
be significant.

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   The respondent has raised her family in the United States since 1988, and
her four United States citizen children know no other way of life. The
respondent’s children do not speak Spanish well, and they are unable to read
or write in that language.
   Unlike the children in Monreal and Andazola, the respondent’s four United
States citizen children are entirely dependent on their single mother for
support. The respondent is divorced from the children’s father, and there is
no indication that he remains involved in their lives in any manner. This
increases the hardship the children would face upon return to Mexico, as they
would be completely dependent on their mother’s ability, not only to find
adequate employment and housing, but also to provide for their emotional
needs.
   The respondent has been able to leave her children in the care of her lawful
permanent resident mother while she attended courses to obtain a vehicle
inspector’s certificate and established a business. This assistance from her
mother has enabled her to support her children within a stable environment.
The respondent’s ability to provide for the needs of her family will be
severely hampered by the fact that she does not have any family in Mexico
who can help care for her six children. As a single mother, the respondent
will no doubt experience difficulties in finding work, especially employment
that will allow her to continue to provide a safe and supportive home for her
children.
   From the perspective of the United States citizen children, it is clear that
significant hardship will result from the loss of the economic stake that their
mother has gained in this country, coupled with the difficulty she will have in
establishing any comparable economic stability in Mexico. We emphasize
that the respondent is a single parent who is solely responsible for the care of
six children and who has no family to return to in Mexico. These are critical
factors that distinguish her case from many other cancellation of removal
claims.
   In addition to the hardship of the United States citizen children, factors that
relate only to the respondent may also be considered to the extent that they
affect the potential level of hardship to her qualifying relatives. Matter of
Monreal, supra, at 63. In Andazola we found that similar factors were not
sufficient to meet the high standard of exceptional and extremely unusual
hardship. However, in this case, there are additional factors that we find raise
the level of hardship, by a close margin, to that required to establish
eligibility for relief.
   The respondent’s lawful permanent resident parents also are qualifying
relatives. While we have not considered their hardship in assessing the
respondent’s claim, her parents form part of the strong system of family
support that the respondent and the minor qualifying relatives would lose if
they are removed from the United States.

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   Although the minor respondents lack a qualifying relative for purposes of
cancellation of removal, their existence also cannot be ignored. In a family
such as this, headed by a single parent, the hardship of their parent inherently
translates into hardship on the rest of the family, in this case to all six
children. In considering the hardship that the United States citizen children
would face in Mexico, we must also consider the totality of the burden on the
entire family that would result when a single mother must support a family of
this size. See generally Gutierrez-Centeno v. INS, 

 (9th Cir.
1996).      Unlike the situation in Monreal and Andazola, all of the
respondent’s family, including her siblings, reside lawfully in the United
States. We find this significant because they are unlikely to be subject to
immigration enforcement and will probably remain in the United States
indefinitely. The respondent’s family members are very close and have been
instrumental in helping her raise her children and obtain the necessary funds
to establish her business. The loss of this support would further increase the
hardship that she, and therefore her United States citizen children, would
suffer if they are compelled to return to Mexico, where no support structure
exists.
   Finally, we note that the respondent’s prospects for lawful immigration
through her United States citizen siblings or lawful permanent resident parents
are unrealistic due to the backlog of visa availability for Mexican nationals
with preference classification. There are no other apparent methods of
adjustment available to any of the respondents. These are factors we have
previously found to be significant when considering an identical hardship
standard for suspension of deportation. See Matter of B-, 

(BIA; A.G. 1955); Matter of W-, 

 (BIA 1953); Matter of M-,

 (BIA 1953); Matter of U-, 

 (BIA 1953).
   The hardship factors present in this case are more different in degree than
in kind from those present in Monreal and Andazola. For this reason, we see
no need to depart from the analysis set forth in those cases. Part of that
analysis requires the assessment of hardship factors in their totality, often
termed a “cumulative” analysis. Here, the heavy financial and familial
burden on the adult respondent, the lack of support from the children’s father,
the United States citizen children’s unfamiliarity with the Spanish language,
the lawful residence in this country of all of the respondent’s immediate
family, and the concomitant lack of family in Mexico combine to render the
hardship in this case well beyond that which is normally experienced in most
cases of removal. The level of hardship presented here is higher than that
established in either Monreal or Andazola and, in our view, is sufficient to be
considered exceptional and extremely unusual.
   We emphasize, in conclusion, that this decision cannot be read in isolation
from Monreal and Andazola. Those cases remain our seminal interpretations
of the meaning of “exceptional and extremely unusual hardship” in section

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240A(b)(1)(D) of the Act. The cumulative factors present in this case are
indeed unusual and will not typically be found in most other cases, where
respondents have smaller families and relatives who reside in both the United
States and their country of origin.
                             IV. CONCLUSION
   Given the unusual facts presented in this case, we find that the adult
respondent has shown that her United States citizen children will suffer
exceptional and extremely unusual hardship if she is removed from the United
States. Accordingly, her appeal will be sustained and she will be granted
cancellation of removal.
   As the adult respondent has been granted relief and appears to have no
impediment to adjusting her status, the minor respondents are likely to soon
have a qualifying relative for purposes of establishing eligibility for
cancellation of removal. Given this fact, we find it appropriate to remand
their records to the Immigration Judge for their cases to be held in abeyance
pending a disposition regarding the adult respondent’s status.
   ORDER: The appeal of the adult respondent is sustained.
   FURTHER ORDER: The decision of the Immigration Judge is vacated,
and the adult respondent is granted cancellation of removal.
   FURTHER ORDER: The records of proceedings for the minor
respondents are hereby returned to the Immigration Court for further
proceedings consistent with the foregoing decision.




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