Petitioners, a husband and wife from Mexico, were denied cancellation of removal by the immigration judge for failure to demonstrate that their U.S. citizen children would suffer “exceptional and extremely unusual hardship” as required by INA §240A(b)(1)(D). The is known as a hardship waiver.
The BIA affirmed the denial but granted Petitioners voluntary departure. This means you can post a bond, and are given up to 120 days to depart the US and the bond money is returned upon your departure. By the time the Board’s decision was issued, the female petitioner had become seriously ill. The couple failed to voluntarily depart the U.S. and instead filed a motion to reopen with the BIA, attaching new evidence of hardship in light of the female petitioner’s illness. Specifically, Petitioners submitted a letter from the wife’s doctor, which explained that the nature of her illness “may be, in fact, life threatening” and that “it is essential that [she] be allowed to remain in the area and receive . . . proper medical care.” The BIA denied the motion to reopen.
The court found that the BIA did not even mention the female petitioner’s medical problems when it explained its reason for denying the motion. The court held that “[t]he BIA’s failure to identify and evaluate the favorable factors was an abuse of discretion.” The ninth circuit court granted the petition for review and remanded the case to the BIA for further proceedings consistent with its opinion.
Franco-Rosendo v. Gonzales (9th Cir. July 18, 2006)
Doc. No. 06092146 (posted Sep. 21, 2006)–