Matter of Recinas: BIA Clarifies Hardship Standard for Non-LPR Cancellation of Removal

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

MATTER OF RECINAS: BIA CLARIFIES HARDSHIP STANDARD FOR NON-LPR CANCELLATION OF REMOVAL
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

The Board of Immigration Appeals has issued an en banc precedent decision that clarifies the "exceptional and extremely unusual" hardship standard that is a requirement for cancellation of removal for non-lawful permanent residents under section 240A(b) of the Immigration and Nationality Act. The unanimous opinion sustains the appeal of a Mexican woman who is the sole support of her six children, four of whom are U.S. citizens, and who was denied cancellation by an immigration judge. The decision distinguishes the BIA's prior ruling in Matter of Andazola, 23 I. & N. Dec. 319 (BIA 2002), where the BIA had found the standard not met by a single Mexican mother of two U.S. citizen children (for more information regarding that decision, see "BIA Rules on Standard for Non-LPR Cancellation," Immigrants' Rights Update, July 29, 2002, p. 6).

The adult respondent in this case, a Ms. Recinas, is a 39-year-old Mexican national who has lived in the U.S. since 1988. She has two older children, ages 15 and 16, who are Mexican nationals, and four U.S. citizen children, ages 12, 11, 8, and 5. Her parents are both LPRs, and her five siblings are U.S. citizens. She is divorced and has no immediate family living in Mexico.

At her removal hearing, the IJ found that Recinas did not meet the "exceptional and extremely unusual" hardship standard for cancellation. The IJ also found that the two non-U.S. citizen children did not qualify for cancellation because they have no "qualifying" relative (a spouse, parent, or child who is a U.S. citizen or LPR and who would suffer hardship as a result of a respondent's removal). Recinas appealed from the IJ's ruling, resulting in this decision of the BIA.

On appeal, the BIA found that this case "presents a close question" but concluded that it is "on the outer limit of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard" is met. The BIA noted that "the hardship standard is not so restrictive that only a handful of applicants, such as those with a serious medical condition, will qualify for relief." "Keeping in mind that this hardship standard must be assessed solely with regard to the qualifying relatives in this case," the BIA found the following factors relevant:

Recinas raised her family in the U.S. since 1988, and the four U.S. citizen children do not speak Spanish well and cannot read or write in Spanish.
The citizen children are solely dependent on Recinas for their support, unlike the respondent in Andazola.
Recinas's ability to work and support her children depends upon the assistance her mother has provided in caring for the children, and with no family in Mexico she would have an especially difficult time finding employment and providing a safe home for her children.

In addition to these factors, the BIA also considered that factors relating to hardship to Recinas herself "may also be considered to the extent that they affect the potential level of hardship to her qualifying relatives." One factor is that Recinas and all the children would lose the support of their strong family ties to the various family members with U.S. citizen or LPR status. The BIA noted that, in addition to her citizen children, Recinas's LPR parents are "qualifying relatives" for her under the statute. While the BIA did not address the hardship that Recinas's removal would cause her parents, the BIA did note that they "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." The BIA also noted that the non-U.S. citizen children, although without a qualifying relative, "also cannot be ignored." "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," the BIA held. The BIA also found it relevant that Recinas has no prospects for lawful immigration through her U.S. citizen siblings or LPR parents because of the backlog on visa availability for Mexican nationals for these visa categories.

The BIA concluded that, while the kinds of hardship factors in this case "are more different in degree than in kind" from those in Andazola, the total level of hardship in this case is greater and satisfies the standard.

With respect to the two minor respondents, the BIA found that the IJ was correct in finding that they do not have a qualifying relative. However, the BIA also noted that this decision will result in Recinas receiving cancellation and adjusting to LPR status, and that it is likely that soon she will constitute a qualifying relative for these children. Because the children soon will have a qualifying relative, the BIA remanded their cases to the IJ, to be held in abeyance pending a disposition of Recinas's status.

Matter of Recinas, 23 I. & N. Dec. 467, Int. Dec. 3479 (BIA Sept. 19, 2002).