MONREAL
23 I. & N. Dec. 56 (2001)
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Rule of Law:
To establish eligibility for cancellation of removal under INA § 240A(b), an applicant must demonstrate that their qualifying relative would suffer 'exceptional and extremely unusual hardship,' which is a standard substantially beyond the ordinary hardship of deportation, but not so high as to be 'unconscionable.' Only hardship to the qualifying relative may be considered, not hardship to the applicant, except as it affects the relative.
Facts:
- Francisco Javier Monreal-Aguinaga, a native of Mexico, entered the United States in 1980 at the age of 14.
- He has lived in the U.S. continuously for approximately 20 years and has been gainfully employed, providing sole financial support for his family.
- Monreal-Aguinaga's wife and their infant U.S. citizen child voluntarily departed for Mexico shortly before his removal hearing.
- He has two older children, aged 12 and 8, who are United States citizens and have remained with him in the U.S.
- The older child is bilingual and testified that he would prefer to stay in the U.S. but would go to Mexico with his father.
- Monreal-Aguinaga's parents lawfully immigrated to the U.S. in 1995 and are lawful permanent residents.
- He also has seven siblings who lawfully reside in the United States.
Procedural Posture:
- The Immigration and Naturalization Service (INS) initiated removal proceedings against Francisco Javier Monreal-Aguinaga in an Immigration Court.
- Monreal-Aguinaga conceded removability and applied for cancellation of removal under INA § 240A(b), or alternatively, voluntary departure.
- On May 19, 1998, the Immigration Judge (the trial court) issued a decision finding Monreal-Aguinaga removable, denying his application for cancellation of removal, and granting his request for voluntary departure.
- Monreal-Aguinaga (appellant) filed a timely appeal to the Board of Immigration Appeals, challenging only the denial of his application for cancellation of removal. The INS was the appellee.
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Issue:
Does the hardship that Francisco Javier Monreal-Aguinaga's United States citizen children and lawful permanent resident parents would suffer if he were removed from the United States meet the 'exceptional and extremely unusual hardship' standard required for cancellation of removal under INA § 240A(b)?
Opinions:
Majority - Holmes, Board Member
No. The hardship that Monreal-Aguinaga's qualifying relatives would suffer does not meet the 'exceptional and extremely unusual hardship' standard. Congress intentionally raised the hardship standard from 'extreme hardship' to 'exceptional and extremely unusual hardship,' requiring a showing of harm to qualifying relatives that is 'substantially beyond that which ordinarily would be expected to result from the alien's deportation.' This standard is higher than the previous one but less than 'unconscionable.' Here, while the respondent's U.S. citizen children would face hardship and reduced opportunities in Mexico, these consequences are within the ordinary range of difficulties expected from a parent's deportation. The children are healthy, one is bilingual, and they would be reunited with their mother in Mexico. The record also lacks evidence of any particular health issues or unusual factors that would cause exceptional hardship to his lawful permanent resident parents. The applicant's own significant equities, such as his long residence since childhood, cannot be directly considered under the statute.
Concurring and dissenting - Rosenberg, Board Member
No, but the case should be remanded. While concurring that Congress intended a higher hardship standard, the dissent argues that because the Board is articulating the interpretation of this standard for the first time, fairness and due process require remanding the case. This would give the respondent an opportunity to present evidence specifically tailored to meet the newly clarified, heightened standard. The majority unfairly applies this new interpretation retroactively without giving the respondent notice. Furthermore, the majority improperly rejects the Board's entire body of precedent interpreting the phrase 'exceptional and extremely unusual hardship' from prior statutes and underestimates the potential hardship to U.S. citizen children who are being uprooted from the only country they have ever known.
Analysis:
This is a landmark Board of Immigration Appeals (BIA) decision interpreting a key provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). It establishes that the hardship standard for cancellation of removal is significantly more stringent than the 'extreme hardship' standard for the prior relief of suspension of deportation. The decision clarifies that the focus must be exclusively on the hardship to qualifying U.S. citizen or LPR relatives, rendering the applicant's own equities legally irrelevant except as they impact the relatives. By defining the standard as 'substantially beyond' ordinary hardship, the Board created a demanding, fact-intensive inquiry that has made it much more difficult for long-term undocumented residents to obtain relief from removal, significantly narrowing its availability.
