Matter of Andazola-Rivas: BIA Rules on Standard for Non-LPR Cancellation

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

MATTER OF ANDAZOLA-RIVAS: BIA RULES ON STANDARD FOR NON-LPR CANCELLATION
Immigrants' Rights Update, Web Edition, July 15, 2002

The Board of Immigration Appeals has issued an en banc precedent decision interpreting the hardship standard that applies to applications for cancellation of removal under section 240A(b) of the Immigration and Nationality Act. Section 240A(b) requires that applicants establish that they have been continuously physically present in the United States for at least 10 years, that they have good moral character, and that their removal would cause "exceptional and extremely unusual hardship" to a U.S. citizen or lawful permanent resident parent, spouse, or child. The decision finds that the cancellation hardship standard requires a showing of harm that is less than "unconscionable." However, under the decision a respondent must establish that the qualifying relative would suffer hardships "substantially different from those that would normally be expected upon removal to a less developed country."

The respondent in this case, a Ms. Andazola-Rivas, is a Mexican national who entered the U.S. without inspection in 1985. She was placed in removal proceedings, and at her hearing in 2000 the immigration judge granted her application for cancellation of removal. Among the factors on which the IJ based his decision were the following: Andazola is a 30-year-old single mother of two U.S. citizen children who are 11 and 6 years old. For the last four years she has worked for the same company, which provides health insurance for her family and a 401K retirement savings plan. She owns her own house, valued at $69,000, as well as two vehicles, and she has about $7,000 in savings. She has no relatives in Mexico who could help take care of her children, and all of her siblings, aunts, and uncles live in the U.S., albeit without status. The older child testified that she has a very close relationship with her grandmother. The family is active in their church, and Andazola helps out twice a month at her younger child's Head Start program. Andazola also testified that she has asthma and would not be able to work in the fields in Mexico, and that, because she has only a sixth grade education, she would not be able to get an office job or any job comparable to the one she has in the U.S. She also testified that her children would not be able to get a good education in Mexico.

Based on all of these factors, the IJ concluded that Andazola's removal would cause exceptional and extremely unusual hardship to her citizen children. The Immigration and Naturalization Service appealed this ruling, and the BIA has now sustained the appeal.

A majority of the BIA concluded that this case is controlled by its prior ruling in Matter of Monreal, 23 I. & N. Dec. 56 (BIA 2001). In Monreal, the BIA held that an applicant for cancellation under INA section 240A(b) must show that his or her removal would cause harm 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." Id. at 65. The respondent in Monreal was a 34-year-old Mexican national with three U.S. citizen children, the oldest of whom was 12 years old. His parents were lawful permanent residents residing near him, but his wife was undocumented and had returned to Mexico at the time of the hearing. The BIA concluded that the harms faced by his relatives were not sufficient to meet the cancellation standard (for more on Monreal, see "BIA Issues Decisions Interpreting Hardship Standards in Suspension and Cancellation Cases," Immigrants' Rights Update, June 29, 2001, p. 7).

Andazola contended that her case was completely distinguishable from Monreal, pointing to the fact that she is a single mother and the sole support of her children and that she has no relatives in Mexico to help her family there. She also contended that women in Mexico face discrimination in employment and that this would make it particularly difficult as a single mother to support her family.

The BIA majority rejected these contentions, noting that were this a suspension of deportation case they "might well grant relief" but that Andazola did not meet the higher standard for cancellation. The BIA also questioned Andazola's status as a single mother, pointing to testimony that indicated that the children's father may at times live with the family and sometimes contributes to their support. And the BIA concluded that although it is likely that Mexico will not provide the citizen children with an education equal to that which they might obtain in the U.S., Andazola had not shown that the children "would be deprived of all schooling or of an opportunity to obtain any education."

Board Member Osuna filed a dissent that was joined by Members Schmidt, Villageliu, Gundelsberger, Rosenberg, Moscato, Brennan, and Espenoza. The dissent would find that, while it is a close case, the respondent established that her U.S. citizen children would suffer exceptional and extremely unusual hardship were she removed to Mexico. The dissent criticized the majority's ruling on the grounds that it failed to adequately consider the individual facts presented by this case. Board Member Espenoza, joined by Member Rosenberg, filed a separate dissenting opinion, asserting that under the majority's reasoning, "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 or for financial reasons." Such a result is contrary to Congress's intent, in making the hardship inquiry in cancellation cases focus on the harm likely faced by the qualifying relatives.

In sustaining the appeal, the BIA denied cancellation and granted Andazola voluntary departure. She has filed a petition for review of the decision with the U.S. Court of Appeals for the Ninth Circuit.

Matter of Andazola-Rivas, 23 I. & N. Dec. 319, Int. Dec. 3467 (BIA Apr. 3, 2002).