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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virgm1a 22041

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Jbara, Jamal OHS/ICE Office of Chief Counsel - NYC
Jamal Jbara Attorney at Law PC 26 Federal Plaza, 11th Floor
45-18 Court Square, Suite 400 New York, NY 10278
Long Island City, NY 11101

Name: B M ,J J A 282
Riders: 283

Date of this notice: 3/9/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

ll
I , J
u. v

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Greer, Anne J.
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: J-J-B-M-, AXXX XXX 282 (BIA March 9, 2017)


" " .
U.S. Department of Justice Decision of the Board of Immigration Appeals
xecutive.Office for Immigration Review

Falls Church, Virginia 22041

Files: 282 - New York, NY Date:


283 MAR - 9 2017

In re: J J B M

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M C C

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jamal Jbara, Esquire

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] -


Present without being admitted or paroled (conceded)

APPLICATION: Cancellation of removal under section 240A(b)(l) of the Act

The respondents,1 natives and citizens of Mexico, appeal the Immigration Judge's March 1,
2016, decision denying their applications for cancellation of removal under section 240A(b)(l)
of the Immigration and Nationality Act, 8 U.S.C. 1229b(b)(l). The Department of Homeland
Security (OHS) has not responded to the appeal. The respondents' appeal will be sustained, and
the record will be remanded for further proceedings.

On June 6, 2012, the Immigration Judge set June 2, 2014, as the date by which documents in
support of the respondents' applications for cancellation of removal had to be filed (Tr. at 7;
see also Notice of Hearing in Removal Proceedings, dated June 6, 2012). The respondents,
through their counsel, submitted their supporting documents on June 24, 2014 (see Exh. 3(0)-(L)
(marked for identification only)). 2 The respondents' merits hearing was conducted on
July 28, 2014. At beginning of the hearing, the Immigration Judge questioned the respondents'
counsel as to the late-filed documents and he explained that he noted an incorrect filing deadline
in error (I.J. at 4; Tr. at 11-14). The Immigration Judge determined that since there was no
excuse asserted for the untimeliness, the documents were not admitted into evidence and were
marked for identification only (l.J. at 4).

1 The respondents are husband and wife (l.J. at 1). The record reflects that the lead respondent
is the husband and the wife is a derivative on the lead respondent's application. The wife will
hereinafter be referred to as "the female respondent."

2 We note that the record reflects that the respondents submitted copies of the filing receipts for
their applications for cancellation of removal on August 4, 2014, as requested by the
Immigration Judge (l.J. at 3; see Unmarked Exh. (referred to as "Exh. 40" in the Immigration
Judge's decision), dated August 4, 2014). The Immigration Judge's decision reflects that these
documents were also marked for identification only (l.J. at 4).

Cite as: J-J-B-M-, AXXX XXX 282 (BIA March 9, 2017)


,.

.. 282 et al.

On appeal, the respondents argue that the Immigration Judge erred by not admitting the
respondents' late-filed supporting documentation into evidence, particularly the medical records
of the respondents' United States citizen child, which show that the child suffers from numerous
serious medical problems, including, inter alia, Goldenhar's syndrome, Diamond Blackfan
syndrome, hepatic and cardiac dysfunction, cleft palate, fused kidney, and a webbed neck

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(Respondents' Brief at 2, 7-8). The respondents also argue that the supporting documentation
3
was filed 34 days prior to their merits hearing and as such, the Immigration Judge and the DHS
had an appropriate period of time in which to review the documents before the hearing
(Respondents' Brief at 5, 7-8). Further, the respondents assert that the Immigration Judge's
rejection of the untimely documents violated their due process rights (Respondent's Brief at 5-6).

The federal regulations expressly authorize an Immigration Judge to set and extend time
limits for the filing of applications and related documents. See 8 C.F.R. 1003.3 l(c). Although
the Immigration Judge concluded that the respondents proffered no excuse for the late filing, she
noted that the respondents believed that the documents were timely filed based upon their
attorney's representations (l.J. at 4).

The record reflects that at the time of their last hearing, the respondents had resided in the
United States for over 14 years (I.J. 1, 5; Exh. 2(A)). The Immigration Judge noted that the
record also reflects that the respondents have several United States citizen and legal permanent
resident relatives, including their two United States citizen children, the female respondent's four
siblings and the lead respondent's five siblings (l.J. at 2; Exh. 2(A)). The Immigration Judge
also noted that the respondents testified that their daughter suffers from numerous medical
problems (l.J. at 6). Thus, as the respondents meet the threshold requirements for cancellation of
removal and were prima facie eligible for such relief on the date of their merits hearing, they had
4
every incentive to timely file documents in support of their applications for relief.

Moreover, the DHS trial attorney indicated by his responses that the DHS had no objection to
accepting the late filing of the respondents' supporting documentation (Tr. at 14; see Tr. 10-11
(noting the DHS's objection insofar as it concerned foreign documents and persons who were
unavailable for cross-examination)). The respondents' attorney, whom they retained to represent
them, has explained and documented his specific failure to provide effective assistance to his
clients by untimely filing their supporting documents (Respondent's Brief at 8). Consequently,
upon de novo review, we conclude that the respondents have shown sufficient prejudice. See
Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir. 2008) (stating that to prevail on a due
process claim, the alien must establish "some cognizable prejudice fairly attributable to the
challenged process" that affected the outcome of the proceedings).

3
The respondents' counsel claims that he believed that the deadline for submission was 30 days
prior to the merits hearing - not 60 days (Respondents' Brief at 8).

4
We note that although the Immigration Judge found that she was unable to assess the lead
respondent's good moral character due to the untimely submission of supporting documentation,
in light of our disposition, we decline to reach the merits of this issue (I.J. at 5).

2
Cite as: J-J-B-M-, AXXX XXX 282 (BIA March 9, 2017)
('

282 et al.

Considering the totality of circwnstances in this case, we find that the respondents should be
afforded an opportunity to pursue their applications for cancellation of removal. See generally
Matter of C-V-T-, 22 I&N Dec. 7 (BIA 1998). In light of the foregoing, the record is remanded
to the Immigration Judge for further proceedings consistent with this opinion and for the entry of
a new decision following a hearing on the respondents' eligibility for relief from removal.

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Accordingly, the following orders are entered.

ORDER: The appeal is sustained, and the decision of the Immigration Judge is vacated.

FURTHER ORDER: The record is remanded for further proceedings consistent with this
decision and for the entry of a new decision.

3
Cite as: J-J-B-M-, AXXX XXX 282 (BIA March 9, 2017)
(

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK

--- - ---- - ----


- -- - --- --
--- - ---- ---- ---- -- )(
-----

In the Matters of March 1, 2016

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J J B M (husband),
282, REMOVAL PROCEEDING

M C C (wife),
283,

Respondents.
- ----- ----- - ---- -
- -- -- - ------- ---- ---------- )(
- -

On behalf of Respondents On behalf of OHS


Jamal Jbara, Esq. L. Arturo, Esq.
lh Drive, 1st floor Assistant Chief Attorney
21-52 44
Jackson Heights, NY 11372 New York District, ICE

CHARGES: Section 212(a)(6)(A)(i) of the Immigration & Nationality Act, as


amended, ("INA") (Both Respondents).

APPLICATIONS: Request for Cancellation of Removal pursuant to 240A(b)( l ) of the INA


(Both respondents).

Request for Voluntary Departure pursuant to 240B(a)(l)

DECISION OF THE IMMIGRATION JUDGE

The respondents are natives and citizens of Mexico and are husband and wife. Both
respondents admitted to the truth of the factual allegations contained in paragraphs 1, 2 & 4 in
their respective Notices to Appear ("NTA"). See Exh. 1 in each.file. In response to paragraph 3
the wife alleged she arrived in the United States ("US") since 2000 and the husband alleged he
arrived in 2000. Both respondents conceded that they are removable from the US under section
212(a)(6)(A)(i) of the INA. Therefore, the court finds that the respondents are removable from
the US, as charged in the NTA and that such finding is supported by clear and convincing
evidence. 8 C.FR. 1240.8.

The respondents declined to nominate a country in the event of removal. The Bureau of
Immigration and Customs Enforcement ("ICE") directed respondents' removal to Mexico.
1
'

As relief from removal, the respondents filed applications for cancellation of removal and
adjustment of status under 240A(b)(1) of the INA. The respondents submitted cancellation
applications and supporting documents which are contained in their respective records of
Proceedings. See Exh. 2A in eachfile. The respondents were instructed to file a copy of the filing
receipts, but despite claiming they had a copy of receipts, they never filed it with the court.

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FINDINGS OF FACT

The court makes the following findings of fact. The respondents are husband and wife
and are natives and citizens of Mexico. The respondents married in Mexico and came to the US
independently. The respondents admitted to the truth of the factual allegations contained in
paragraphs 1, 2 & 4 in their respective Notices to Appear. The respondents both conceded that
they are removable from the US, as charged. Exhs I in each file.

Both respondents seek cancellation of removal and adjustment of status pursuant to


section 240A(b)(l) of the INA . Exhs 2A in each file. The respondents did not seek any other
forms of relief and at the conclusion of the hearing, the respondents affirmatively waived a
request for voluntary departure.

The respondents have two US citizen born daughters. The wife has relatives in Mexico,
to wit: mother, sister and two brothers. The wife has four (4) brothers that live in the US. Three
brothers are lawful permanent residents ("LPR") and the fourth brother is a US citizen. The
husband has five siblings that live in the US and his parents and five additional siblings live in
Mexico.

At the conclusion of testimony and presentation 9f all evidence on July 28, 2014 at 10:30
am, the parties rested and advised the court that respondents were not seeking the relief of
voluntary departure.

The court advised the parties that it will take the matter under advisement to issue a
determination in the future as the available visa numbers for cancellation of removal ("COR")
relief are presently unavailable. INA 240A(e)(l).

The court has been recently advised by the Court Administrator that numbers are
available. This written decision follows.

A. Late Filed Documents


During the proceedings on June 6, 2012, the court put the parties on oral and written
notice that pursuant to US Immigration Court Practice Manual ("CPM") they were required to
submit any and all materials, motions, papers and supporting documents to the court no later
close of business ("COB") on June 2, 2014. See Court's Hearing Notice June 6, 2012 in each
file.

2
The respondents failed to submit supporting documents in a timely manner and the late
submittea materials were only marked for identification as Exhibits 3D-ID to 3L-ID.

Further, the respondents never filed copies of the filing receipts for the cancellation
applications, despite being advised that respondents possessed copies of the filing receipts, they
were never produced and placed into the Record of Proceedings ("ROP"). The late submitted
materials were not placed into evidence and marked for identification purposes only.

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The CPM states as follows:

Filing with the Immigration Court

3.J(b) Timing ofsubmissions. - Filing deadlines depend on the stage of proceedings and
whether the alien is detained. Deadlines for filings submitted while proceedings are
pending before the Immigration Court (for example, applications, motions, responses to
motions, briefs, pre-trial statements, exhibits, and witness lists) are as specified in
subsections (i), (ii), and (iii), below, unless otherwise specified by the Immigration Judge.

3.1 (c)(ii)(A) Deadlines on specific dates. A filing may be due by a specific date.
-

3.1 (d)(ii) Untimelyfilings. The untimely submission of a filing may have serious
-

consequences. The Immigration Judge retains the authority to determine how to treat an
untimely filing. Accordingly, parties should be mindful of the requirements regarding
timely filings.

Untimely filings, if otherwise properly filed, are not rejected by Immigration Court staff.
However, parties should note that the consequences of untimely filing are sometimes as

follows:

if an application for relief is untimely, the alien=s interest in that relief is deemed
waived or abandoned

if a motion is untimely, it is denied

if a brief or pre-trial statement is untimely, the issues in question are deemed


waived or conceded

if an exhibit is untimely, it is not entered into evidence or it is given less weight

if a witness list is untimely, the witnesses on the list are barred from testifying

if a response to a motion is untimely, the motion is deemed unopposed

The CPM indicates that the Immigration Judge can specify a specific deadline date for
3
. .

submission of evidence, motions, documents and supporting materials. This has been the court's
practice that was adopted after a one year education process after the effective date of the CMP
requirements. Also, notices of the requirements of the CPM provisions were also prominently
displayed throughout the courthouse and written notices were provided to the public when the
court conducted business before and during the one year period after its effective date. The CPM
is also accessible on the EOIR website.

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The respondents submitted documents after the deadline date. The respondent stated that
they had no excuse and believed that the materials were submitted timely based upon counsel's
notes. However, counsel admits that the written Notice of Hearing dated June 6, 2012 had a
specific court notation as to the deadline date for submission of all materials. The court did not
find respondents' reason for their late submission to be reasonable or excusable. The respondents
were accorded almost two (2) years to obtain and submit supporting documentation. See Notice
ofHearing notice dated June 6, 2012 in each.file. In addition, the respondents failed to submit a
timely motion for an extension of time and failed to indicate with any specificity what
documents were forthcoming and the importance of the materials in respondents' case.

The respondents have the burden to establish eligibility for the relief they seek, and the
failure to file supporting documents in a timely manner does not advance their claim for relief
Therefore, Exhibits 30-ID to 3L-ID & 40-ID were not admitted into evidence and respondents'
ability to submit the materials is deemed waived. 8 C.FR. 1003.31(c); Matter ofInteriano
Rosa, 25 I&N Dec.264 (BIA 2010).

CANCELLATION OF REMOVAL
(BOTH RESPONDENTS)

In a cancellation request, each respondent must prove that he or she has been
continuously present in the United States for a period of at least 10 years, that he or she is a
person of good moral character, and that his or her removal would result in exceptional and
extremely unusual hardship to the spouse, parent, or child, who is a United States citizen or
lawful permanent resident of the US. As of May 1, 1997, 240A Cancellation of Removal and
Adjustment of Status was added to the Act by 304 of IIRIRA. The provision states as follows:

(b) Cancellation of Removal and Adjustment of Status for Certain


Nonpermanent Residents.
(1) In general. The Attorney General may cancel removal
of, and adjust to the status of an alien lawfully admitted for
permanent residence, an alien who is inadmissible or
deportable from the United States if the alien
(A) has been physically present in the United States for a
continuous period of not less than 10 years immediately preceding

the date of such application;


(B) has been a person of good moral character during such period;

4
. .

(C) has not been convicted of an offense under section 212(a)(2),


237(a)(2), or 237(a)(3); and
(D) 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.

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A. Continuous Presence
While the DHS-ICE representative did not seriously challenge the respondents
assertion of when they came into the US, with the exception to show that the husband
came to the US previously and was arrested in 1993 for DWI and cited for bail jumping
in 1995. Nevertheless, the DHS-ICE attorney did not present any adverse evidence to
show that the respondents did not have the requisite continuous residence in the US for
cancellation consideration.

The respondents presented sufficient testimonial evidence in support of their


continuous presence in the US since their respective arrivals in the US.

B. Good Moral Character


There was no adverse evidence relating to the wife's moral character. The DHS
did not challenge her statement that she was never arrested in the US or in Mexico.
However, the DHS-ICE did challenge the wife claim that the husband had only been
arrested once in the US.

The husband contradicted the wife's testimony that he was arrested once and
stated that he was arrested twice. The husband confirmed a he was arrested in 2003 for
DWI. He also claimed that he purchased a bicycle on the street and failed to appear in
court to answer a summons he received regarding the incident. The respondent left the
disposition of the failure to appear matter unanswered.

The DHS-ICE attorney asked the respondent about an earlier arrest on Aug 14,
1993 by the New Rochelle, NY police for driving while intoxicated ("DWI"). The
respondent admitted that he was arrested for such an incident. Aside from respondent's
assertion that he was forgetful about the amount of times he was arrested, he also left the
disposition of the 1993 incident unanswered with the court.

Based upon the respondent's three arrests and his failure to present sufficient
evidence regarding their dispositions, the court is unable to properly assess if the husband
possesses good moral character. The burden is upon him to do so. Therefore, the court
finds that the male respondent failed to show that he possess the requisite good moral
character for cancellation consideration.

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. .

C. Exceptional And Extremely Unusual Hardship


The court finds that the respondents have not presented sufficient evidence to
demonstrated eligibility for Cancellation of Removal that their removal back to Mexico
would be an exceptional and extremely unusual hardship to their US citizen children.

A respondent applying for cancellation bears the burden of establishing statutory


eligibility for the relief as well as showing that he or she warrants a favorable exercise of

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discretion. See 240(A)(b) of the INA. Hardship is not a definable term of fixed and
inflexible meaning, and the elements to establish exceptional and extreme hardship would
most certainly be dependent upon the facts and circumstances of each case. See Matter of
Recinos, 23 I&N Dec. 467 (BIA 2002); Matter of Andazola, 23 l&N Dec. 319 (BIA
2002) and Matter of Monreal, 2 3 I&N Dec 56 (BIA 200 I).

The relevant factors that would be relevant to the issue of the hardship
determination would include the demonstration that the qualifying relative would suffer
hardship that is substantially beyond that which would ordinarily be expected to result
from the applicant's departure. Matter ofMonreal, supra.

The BIA has also indicated that consideration should be given to the following
factors in assessing the hardship to the respondent's child include whether there is a
heavy burden imposed on the respondent to provide the sole financial and familial
support for the child, if deported; the lack of any family in his native country; the
children's unfamiliarity with the language; and the unavailability of an alternative means
of immigrating to this country. Matter of Recinos, supra.

1. Extreme Hardship of the US Children


As the law only considers the hardship to qualifying relatives, the court is limited
in its hardship evaluation to the US citizen born children. While both respondents have
siblings in the US that are either LPRs or US citizens, they are not defined by the relevant
provision to be considered qualifying relatives for cancellations purposes.

Generally, the fact that the respondents have US citizen born children does not of
itself justify cancellation. An alien illegally in the United States does not gain a favored
status by the birth of a child in this country.

Even though a child may face difficulties adjusting to life in the parent's
homeland, these problems do not materially differ from those encountered by other
children who relocate with their parents, especially at a young age.

The respondent's daughters are at the time of the hearing are nine (9) and four (4)
years of age respectively. The respondents contend that the oldest child: Yoana, suffers
from a variety of medical problems. As noted above, the respondent failed to submit
supporting materials in a timely manner and they were not considered by the court.

6
. .

However, when the wife was asked what she knew about available medical
treatment in her home country pertaining to her daughters, she testified primarily she
would not be able to find employment and pay for the medication. Essentially, the wife
intimated that the medication and treatment would be available, but it would be too
expensive for her or husband to afford. But, the respondents failed to provide any proof
of the costs or expenses for the medication and treatment.

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With respect to educational services, the wife testified that did not think it would
be available. When asked by the court how she knew that it would not be available, the
wife testified it was based upon information during the time she lived there. The court
gave the wife's unsubstantiated testimony about the lack of learning services very little
evidentiary weight, especially since it was based upon conditions in 2000, when she
departed her home country.

The fact that economic and educational opportunities for the children are better in
the United States than in the applicant's homeland does not establish exceptional and
extremely unusual hardship.

The respondents also have families that reside in their home country that can
provide help and assistance in re-adjusting.

The court finds that the respondents have not established the exceptional and
extremely unusual hardship to their US citizen daughters, as required by the law.

CONCLUSION

The court finds that the respondents have not presented sufficient evidence or
factors to demonstrate exceptional and extremely unusual hardship to their US citizen
children. The court finds that the requirement of significant hardships over and above the
normal economic and social disruptions involved in removal have not been met in order
to warrant a finding of exceptional and extremely unusual hardship.

The respondent indicated to the court at the end of the hearing that they waived a
request for voluntary departure.

Accordingly, the following orders will be entered:

ORDER

IT IS ORDERED that the respondents' request for Cancellation of Removal and

7
(

' . ..

Adjustent of Status for nonpermanent residents under 240A(b)(l) of the INA is


dened;

IT IS FURTHER ORDERED that the respondents shall be removed from the US to


Mexico pursuant to section 212(a)(6)(A)(I) of the INA.

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