CASES OF INTEREST
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IMMIGRATION:REMOVAL ISSUES
Issue: Cancellation of removal/ eligibility under INA § 240A(a)
 
Issue: Proper Notice of Removal Hearing under INA§ 239(a)(1)
 
Issue: Cancellation of Removal/ exceptional and extremely unusual hardship/ 3 BIA Cases under INA §240A(b)(1)(D)
 

Issue: Cancellation of removal eligibility under INA 240A(a)/ fraud
In re Siaosi Fisiimaile KOLOAMATANGI, Respondent 23 I&N Dec. 548 (BIA 2003) Interim Decision #3486

Q. Can an alien who obtained permanent residence through fraud or misrepresentation be eligible for cancellation of removal?

A: No . Respondent contracted a bigamous marriage to the citizen, by whom he had a US-born child and also obtained permanent residence in 1985. The BIA in part:
INA 101(a)(20) defines "lawfully admitted for permanent residence." to mean "the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed." The BIA upheld the Immigration Court's denial of the alien's motion to reopen on this ground because:
(a)the alien acquired permanent resident status a bigamous marriage, which constituted fraud or misrepresentation. The alien could not be considered to have been "lawfully admitted for permanent residence" and was ineligible for cancellation of removal under INA 240A(a);
The Immigration Judge denied voluntary departure because the respondent knew His fraudulent bigamous marriage constituted an impediment to his adjustment of status in 1985 and continued to maintain the deception for many years. However, the BIA remanded the matter back to the Immigration Court to consider a waiver under INA 237(a)(1)(H) because the respondent, had a United States citizen child or for cancellation of removal under INA 240A(b).

 

Issue: Proper Notice of Removal Hearing under INA 239(a)(1)
In re M-D-, Respondent , 23 I&N Dec. 540 (BIA 2002)

Q: Can an alien be charged with receipt of a notice to appear and notice of the hearing date, under INA 239(a), where the notice is sent by certified mail to the respondent's correct address, but is returned by the United States Postal Service marked "unclaimed."

A: Yes. INA 239(a)(1) 8 C.F.R. § 3.13 requires written notice in person to the alien (or, if not practicable, service by mail to the alien or to the alien's counsel of record . Regular mailing, as opposed to certified mail, is not specified. The BIA upheld the IJ's order of removal in absentia because:
(a).The alien had received adequate notice and opportunity to contest removability and to apply for relief from removal.
(b). Certified mail has always carried inherent reliability, and its use by other Federal Government agencies has been upheld.
(c) Proof that the notice was sent by certified mail creates a rebuttable presumption of adequate notice, which an alien may overcome through evidence that the Post Office had not attempted delivery or had conducted delivery improperly.
(d) Under 8 C.F.R. § 3.26(c) , an alien will be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the alien is removable and that written notice of the time and place of proceedings and of the consequences of failure to appear were provided to the alien or to counsel of record.
 
 
Issue: Cancellation of Removal/ exceptional and extremely unusual hardship/ 3 BIA Cases under INA § 240A(b)(1)(D) 8 C.F.R. § 240.20 (2001).
Standard INA 240A(b)(1)(D) ; 8 U.S.C. § 1229b(b);8 U.S.C. § 1229(b) (2002), 8 C.F.R. § 240.20 (2001).
Three BIA cases :
A)
In re Francisco Javier MONREAL-Aguinaga, Respondent, 23 I&N Dec. 56 (BIA 2001)

Q.Why did petitioner, who had lived in the US for 20 years and was of good moral character, fail to meet the "exceptional and extremely unusual hardship” standard to qualify for cancellation of removal?

The alien must demonstrate that his deportation would result in exceptional and extremely unusual hardship to the citizen or permanent resident spouse, parent, or child because of their age, health or circumstances. The hardship should be substantially beyond that which would ordinarily be expected to result from the alien's deportation. For example: elderly parents in the U.S who are solely dependent upon the alien for support or a qualifying child with very serious health issues, or compelling special needs in school.
Hardship factors relating to the alien may be considered only insofar as they might affect the hardship to a qualifying relative. The burden of proof and persuasion rests on the alien.
A lower standard of living or adverse country conditions in the country of return are factors to consider only insofar as they may affect a qualifying relative, but generally will be insufficient
The alien’s appeal was denied because:

(a) his wife and minor child had returned to Mexico

(b) his two oldest children were in good health, bilingual and would likely relocate to Mexico with him.

(c) He was young, in good health and able to work support his United States citizen children in Mexico.



B)
In re Ariadna Angelica Gonzalez Recinas et al 23 I&N December 467(BIA2002)

Q. What were the cumulative factors the BIA considered in finding the alien met the exceptional and extremely unusual hardship standard for granting cancellation of removal?
(a) The alien, who has been living in the U.S since 1988, is a single mother with no immediate family remaining in Mexico who can help care for her six children.

(b) she is the sole financial and emotional support for her four United States citizen children, ages 12, 11, 8, and 5 years and two minor children born in Mexico.

(c) her children are unfamiliar with the Spanish language

(d) the U.S born children would suffer 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.

(e) her ex-husband is currently out of status and was in immigration proceedings in Denver as of the date of the respondent’s last
hearing.

(f) her ex-husband has little connection with the children.

(g) her parents are lawful permanent residents and her five
siblings are United States citizens, who assist her in caring for her six children and are unlikely to return to Mexico.

(h) she has little alternative means of immigrating to the U.S. due to the backlog of visa availability for Mexican nationals with preference classification

(i) the two Mexican- born minor children do not have a qualifying relative for purposes of cancellation of removal.

C)
Matter of Andazola, 23 I&N Dec. 319 (BIA 2002).

Q. What were the cumulative factors the BIA considered in finding the alien did not meet the exceptional and extremely unusual hardship standard and, therefore, denied cancellation of removal?

The alien was a single Mexican woman with two United States citizen children, who were 11 and 6 years old. However:

(a) the children’s father (who had authorization to remain in the United States) contributed financially to the family, lived with the alien and the children, and could continue to help support the family upon their return to Mexico.

(b) all of the respondent’s siblings were living in the United States, but were without documentation.

(c) the alien had not shown that her United States citizen children would be deprived of all schooling, or of an opportunity to obtain any education.

(d) the alien’s claim of poor economic conditions in Mexico, and drastic economic consequences to her and her children. is insufficient to support even a finding of extreme hardship.

(e) the alien is young, able to work and has developed some job skills.

(f) her children are young and in good health.

(g) the alien had accumulated assets which could help ease the family’s transition to Mexico.