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Immigrant & Refugee Appellate Center, LLC | www.irac.net/unpublished/index

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

Falls Church, Virginia 22041

File: ,AJ~b_l<5_l --~I- Los Angeles, CA Date: OCT 2 6 2022

....b_l<5_l _ _ _ _ _ _ _ _ _ _~
In re: l<

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Tania M. Guerrero, Esquire

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

The United States Court of Appeals for the Ninth Circuit has remanded this matter to the Board
for further consideration ofthe respondent's appeal ofthe decision of the Immigration Judge, dated
June 11, 2019, denying his application for cancellation of removal under section 240A(b)( l) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l), and ordering his removal from the
United States. 1 Upon further consideration, we will sustain the respondent's appeal. Concluding
that the respondent is eligible for cancellation of removal under section 240A(b)(l) of the Act and
warranting such relief as a matter of discretion, the record will be remanded for the purposes of
updating the required background checks and the entry of a new decision.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003. l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F .R. § 1003 .1 (d)(3 )(ii). It is the respondent's burden to establish eligibility for relief from
removal. Section 240(c)(4)(A) of the Act, 8 U.S.C. § 1229a(c)(4)(A); 8 C.F.R. § 1240.8(d).

We conclude that the respondent is statutorily eligible for cancellation of removal. He has
established that his removal from the United States would result in exce tional and extremely
unusual hardship to his United States citizen child, born on (bl(6l See section
240A(b)(l)(D) of the Act. The respondent contends that, upon his removal from the United States,
his child will remain in this country with said child's mother. See Matter ofCalderon-Hernandez,
25 I&N Dec. 885, 886 (BIA 2012) (holding that an affidavit is not required where an alien
expresses an intention to leave a child in this country with a parent). Generally, under such
circumstances, "[i]t is reasonable in such cases to assume that the child will be cared for and
1
It is undisputed that the respondent is subject to removal from the United S~tes (IJ at 1-2; Exh.
1). See section 212(a)(6)(A)(i) of the Act, 8 U.S.C. § l 182(a)(6)(A)(i). In a prior decision, issued
on November 1, 2019, this Board agreed with the Immigration Judge's decision to deny his claims
to asylum, withholding of removal, and protection under the Convention Against Torture. Such
claims are not further pursued in a meaningful manner in the respondent's most recent appeal brief.

Cite as: Appeal ID 5330457 (BIA Oct. 26, 2022)

 Immigrant & Refugee Appellate Center, LLC | www.irac.net/unpublished/index
supported by the parent who remains here, absent evidence to the contrary." Id. However, in the
instant case, the mother of the respondent's child will be required, as a single parent, to care for
several children upon his removal. Furthermore, the respondent's child, due to autism, requires a
significant level of care. We have considered, among other claims, that the child receives special
education, experiences various developmental challenges, and is incapable of stringing words
together to fonn a sentence (Respondent's Br. at 15-16).

There can be little dispute that, upon an alien's removal from this country, a remaining parent
is often tasked with the difficult position of having to juggle impossible schedules while
simultaneously struggling economically to simply survive and attend to all the needs of the
children (Respondent's Br. at 14). Often, as is here, the remaining parent has limited financial
resources, a less than optimal housing situation, and multiple children. However, considering the
totality of the circumstances, particularly the significant medical issues of the qualifying relative
and specific and unique need for the support of a second parent, we conclude that the hardship in
this case is on the "outer limit of the narrow spectrum of cases in which the exceptional and
extremely unusual hardship standard will be met." Matter ofRecinas, 23 I&N Dec. 467,470 (BIA
2002). Accordingly, as the evidence does not indicate that there are otherwise grounds for
mandatory denial ofthe application for relief, we conclude that the respondent is statutorily eligible
for cancellation of removal.

We also conclude that the respondent warrants cancellation of removal as a matter of

discretion. See generally Matter of C-V-T-, 22 I&N Dec. 7, 8-10 (BIA 1998) (discussing the
standards for exercising discretion for cancellation of removal under section 240A(a) of the Act).
We do not condone the respondent's criminal history. Nonetheless, in light of his rehabilitation
efforts, positive work history, and evidence that the prior protective order has been lifted, we
conclude that, upon a balancing of the appropriate factors, cancellation of removal is warranted as
a matter of discretion.

For the reasons set forth above, we will ·sustain the respondent's appeal as he has established
eligibility for cancellation of removal under section 240A(b)( 1) of the Act and warrants such relief
as a matter of discretion. Upon remand, upon successful completion of the required background
checks, the Immigration Judge should enter an order granting the application. The following
orders are entered.

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.l(d)(6), the record is remanded to the

Immigration Judge for the purpose of ·allowing the Department of Homeland Security the
opportunity to complete or update identity, law enforcement, or security investigations or
examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8
C.F.R. § 1003.47(h).

Cite as: Appeal ID 5330457 (BIA Oct. 26, 2022)

U.S. Department of Justice Decision of the Board of Immigration Appeals

Immigrant & Refugee Appellate Center, LLC | www.irac.net/unpublished/index

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: Aj.C_b_lc5_l _ __.I- Los Angeles, CA Date: OCT 2 6 2022

In re: ~fb_lc5_l_ _ _ _ _ _ _ _ _ _ ___,

DISSENTING OPINION: V. Stuart Couch, Appellate Immigration Judge

I respectfully dissent.

I agree with the Immigration Judge that the respondent has not established that his removal
from the United States would result in exceptional and extremely unusual hardship to his United
States citizen child. See section 240A(b)(l)(D) of the Immigration and Nationality Act, 8 U.S.C.
§ 1229b(b)(l)(D). The hardship present in this case is consistent with other cases where a United
States citizen child remains in this country with a parent upon the other parent' s removal. For
example, in Matier of J-J-G-, 27 l&N Dec. 808, 814-15 (BIA 2020), we concluded that, even
though the alien testified his five United States citizen children would remain in this country if he
was removed, he did not establish exceptional and extremely unusual harcjship. The alien in Matter
of J-J-G- testified that, among other factors, one child required medication for hypothyroidism,
two of his children received counseling for behavioral issues, and his partner was unemployed at
the time of removal hearing.

As demonstrated in this case and Matier ofJ -G-G-, parents are often tasked with being the sole
caretaker for children, including children with significant medical and emotional issues, upon an
alien's removal from this country. A mere showing that it is in the child's best interests for the
respondent to remain in this country, as opposed to being removed to Guatemala, is insufficient,
in itself, to establish the requisite level of hardship demanded by section 240A(b)(l)(D) of the Act.
See Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1013 (9th Cir. 2005).

Cite as: Appeal ID 5330457 (BIA Oct. 26, 2022)