25 I. & N. Dec. 885
BIA2012Background
- IJ denied cancellation of removal under INA 240A(b)(1) to Calderon-Hernandez, a native/m citizen of Mexico.
- Applicant must show 10 years physical presence, good moral character, no disqualifying offense, and hardship to a US citizen/perm-resident relative.
- Respondent testified his three US citizen children would remain in the United States with their mother, who is unlawfully present and not in proceedings.
- Matter of Ige requires an affidavit and evidence when a child is to remain in the US, to show care and support arrangements.
- Here, only one parent is in proceedings; the court found the affidavit rule may not apply, but remanded for hardship analysis.
- The Board remands to consider hardship to the respondent’s US citizen children if they remain in the United States.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal would cause exceptional hardship to respondent's US citizen children | Calderon-Hernandez contends children would remain in US with mother; hardship present | IJ applied Ige and required affidavit only if both parents in proceedings; scenario supports remand | Remand for further hardship consideration |
Key Cases Cited
- Matter of Ige, 20 I&N Dec. 880 (BIA 1994) (affidavit and care/support evidence required when child remains in US)
- Perez v. INS, 96 F.3d 390 (9th Cir. 1996) (affidavit evidentiary requirement supported)
- Salcido-Salcido v. INS, 138 F.3d 1292 (9th Cir. 1998) (affidavit not required where child left with remaining parent in US)