CALDERON-HERNANDEZ
FOR RESPONDENT: Jeremiah W. Stuchiner, Esquire, Las Vegas, Nevada
FOR THE DEPARTMENT OF HOMELAND SECURITY: An Mai Nguyen, Assistant Chief Counsel
BEFORE: Board Panel: MILLER and GREER, Board Members; KENDALL CLARK, Temporary Board Member.
KENDALL CLARK, Temporary Board Member:
In a decision dated April 14, 2011, an Immigration Judge denied the respondent’s application for cancellation of removal under
To establish eligibility for relief under
The sole issue on appeal is whether the respondent established that any of his three United States citizen children would suffer exceptional and
We have held, in the context of an application for suspension of deportation, that where an alien alleges that extreme hardship will be suffered by his United States citizen child were the child to remain in the United States upon the parent’s or parents’ deportation, the claim will not be given significant weight absent “an affidavit from the parent or parents stating that it is their intention that the child remain in this country, accompanied by evidence demonstrating that reasonable provisions will be made for the child’s care and support.” Matter of Ige, 20 I&N Dec. 880, 885 (BIA 1994). The United States Court of Appeals for the Ninth Circuit, in whose jurisdiction this case arises, upheld our decision in Matter of Ige and concluded that “this is a valid evidentiary requirement.” Perez v. INS, 96 F.3d 390, 393 (9th Cir. 1996).
Citing both Matter of Ige and Perez v. INS, the Immigration Judge stated that because the respondent did not submit an affidavit, he would analyze the hardship issue only under the premise that the respondent’s three United States citizen children would accompany him to Mexico upon his removal. The Immigration Judge found that under that scenario, the respondent did not establish that any of his children would suffer exceptional and extremely unusual hardship in Mexico upon his removal.
However, in Matter of Ige and Perez v. INS, both parents were in removal proceedings. We noted in Matter of Ige, 20 I&N Dec. at 885-86, that a claim that the children would remain in the United States “can easily be made for purposes of litigation,” and we emphasized that “it is generally preferable for children to be brought up by their parents.” We imposed a requirement that where the parents intend for their United States citizen child to remain in this country upon their deportation, they must provide both an affidavit stating that intention and accompanying evidence to demonstrate who would care for and support the child.
In this case, by contrast, only one parent is in proceedings. Where both parents are living in the United States and the parent who is in proceedings indicates an intention that a child will remain in the United States upon his or her removal, an affidavit and other documentary evidence regarding the care and support of the child is not required. This is so even if the alien intends to leave the child with a parent who is not lawfully in this country. It is reasonable in such cases to assume that the child will be cared for and supported by the parent who remains here, absent evidence to the contrary. Where the remaining parent is not here lawfully but is not in proceedings,
Accordingly, we find that a remand is warranted for further consideration of the respondent’s application for cancellation of removal. On remand, the Immigration Judge should also consider the hardship to the respondent’s United States citizen children if they remain in this country with their mother.
ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.