U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virg1ma 22041

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Ostrovskaya, Marina OHS/ICE Office of Chief Counsel - NYC
Law Office of Arcia & Associates 26 Federal Plaza, 11th Floor
82-17 Roosevelt Avenue New York, NY 10278
2nd Floor
Jackson Heights, NY 11372

Name: Y ,E A A 858
Riders:

Date of this notice: 5/25/2017

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Grant, Edward R.
Adkins-Blanch, Charles K.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: E-A-Y-, AXXX XXX 858 (BIA May 25, 2017)
 --- - - ---- --- ----

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: 858 - New York, NY Date:

MAY 2 5 2017
In re: 'E Y

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IN REMOVAL PRO CEEDING S

APPEAL

ON BEHAL F O F RE SPONDENTS: Marina Ostrovskaya, Esquire

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. l 182(a)(6)(A)(i)] -

Present without being admitted or paroled (both respondents)

APPLI CATION: Remand; cancellation of removal

The respondents are natives and citizens of Ecuador. The lead respondent is the husband of
the co-respondent. The respondents appeal the May 18, 2016, denial of their applications for
cancellation of removal under section 240A{b) of the Immigration and Nationality Act, 8 U.S.C.
l 229(b). The record will be remanded.

The Board reviews an Immigration Judge's findings of fact for clear error. 8 C.F.R.
1003.l (d)(3)(i). We review issues of law, discretion, or judgment de novo. 8 C.F.R.
1003.l (d)(3)(ii).
The Immigration Judge held that the respondents did not demonstrate that their removal would
result in exceptional and extremely unusual hardship to a qualifying relative (I.J. at 5-8). See
section 240A(b)( l ){D) of the Act; 8 C.F.R. 1240.8(d). As relevant to this issue, the Immigration
Judge found certain supporting evidence to be untimely filed and admitted it for identification
pwposes only (1.J. at 2-4; EJchs. 3-4). On appeal, the respondents argue that the record should be
remanded for the Immigration Judge to evaluate the excluded evidence and redetermine whether
they have shown the necessary hardship to a qualifying relative. We agree.

In general, non-detained aliens must file supporting documents at least 15 days in advance of
their individual hearing. Immigration Court Practice Manual, 3.l {b)(ii)(A). In his discretion,
the Immigration Judge required the respondents to file their supporting documentation on or before
May 1, 2013, 40 days before the individual hearing (l.J. at 2; Tr. at 6). See Immigration Court
Practice Manual, 3.l (c)(ii)(A). The respondents submitted two letters from a doctor regarding
the co-respondent's parents on the day of the hearing (l.J. at 3; Exh. 4, Tab 0). This filing was
clearly late. On the other hand, a date stamp shows that the lead respondent filed supporting
hardship evidence with the Department of Homeland Security ("OHS") in person, at 3 :59 p.m., on
May I, 2013 (l.J. at 4; Exh. 3). Similarly, a date stamp reflects that the co-respondent filed the

Cite as: E-A-Y-, AXXX XXX 858 (BIA May 25, 2017)
. . .

'
858 et al.

same evidence with the OHS in person, at 4:00 p.m., on May 1, 2013 (l.J. at 4; Exh. 3).1 However,
the respondents assert that because the court filing window closes at 4:00 p.m., they were unable
to file the same evidence with the Immigration Judge until the following day despite their best
efforts (l.J. at 4).

The excluded evidence includes medical documentation regarding the respondent's two United

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States citizen children and the co-respondent's lawful permanent resident mother, who are
qualifying relatives under section 240A(b)(l)(D) of the Act (Exh. 3, Tabs F-G, L, and N). We
agree with the respondents that this evidence is highly relevant and should be considered with
respect to the question of whether they have demonstrated that their removal would cause
exceptional and extremely unusual hardship to a qualifying relative (l.J. at 7-8). See Burger
v. Gonzales, 498 F.3d 131, 134 (2d Cir. 2007) (a due process violation may be found where an
alien was denied a "full and fair opportunity" to present a claim or otherwise did not receive
"fundamental fairness"). Therefore, we will remand for the Immigration Judge to assess this
evidence and newly determine whether the respondents have established eligibility for relief. See
8 C.F.R. l003.l(d)(3)(iv) (the Board may remand when additional fact-finding is needed in a
particular case).

On remand, the Immigration Judge should further evaluate the supporting evidence that the
respondents filed on the day of the hearing (Exh. 4). The parties should also be permitted to submit
additional evidence and argument.

Accordingly, the following order is entered.

ORDER: The record is remanded for further proceedings and the entry of a new decision
consistent with this opinion.

1 The individual exhibits in the respondents' separate cases are both marked as "Exhibit 3."

Cite as: E-A-Y-, AXXX XXX 858 (BIA May 25, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
X
E ECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK

---------------------------------------------X
In the Matters of May 18, 2016

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E A Y (husband},
858, REMOVAL PROCEEDING

Respondents.
----------------------------------------------X
On behalf of Respondents On behalf of DHS
Arcia & Associates, Esqs. F. Prieto, Esq.
82- 17 Roosevelt A venue, 2d floor Assistant Chief Attorney
Jackson Heights, NY 11372 New York District, ICE

CHARGES: Section 212(a)(6)(A)(i) of the Immigration & Nationality Act, as

amended, ("INA") (Both Respondents).

APPLICATIONS: Request for Cancellation of Removal pursuant to 240A(b)(l ) of the INA

(both).

Waived a request for Voluntary Departure pursuant to 240B(a)(l)

DECISION OF THE IMMIGRATION JUDGE

The respondents are natives and citizens of Ecuador and are husband and wife. Both
respondents admitted to the truth of the factual allegations contained in paragraphs 1, 2 & 4 in
their respective Notices to Appear (NTA). See Exh. 1 in each file.

In response to paragraph 3 the wife alleged she was has lived in the US for ten (10) years
and the husband alleged he arrived in 1999. Both respondents conceded that they are removable
from the United States ("US") under 212(a)(6)(A)(i) of the INA.

Therefore, the court finds that the respondents are removable from the US, as charged in
the NTA and that such finding is supported by clear and convincing evidence. 8 C.F.R. 1240.8.

1
 . .

. The respondents declined to indicate a country in the event of removal. The Bureau of
Immigration and Customs Enforcement (ICE) directed respondents' removal to Ecuador.

As relief from removal, the respondents filed applications for cancellation of removal and
adjustment of status under 240A(b)(l) of the INA. The respondents submitted cancellation
a pplications and supporting documents which are contained in their respective records of
Proceedings. See Exh. 2A in each file.

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FINDINGS OF FACT

The court makes the following findings of fact. The respondents are husband and wife
and are natives and citizens of Ecuador. The respondents admitted to the truth of the factual
allegations contained in paragraphs 1, 2 & 4 in their respective Notices to Appear. The
respondents both conceded that they are removable from the US, as charged. Exhs I in each file.

Both respondents seek cancellation of removal and adjustment of status pursuant to

section 240A(b)(l) of the INA. Exhs 2A in each.file. The respondents did not seek any other
forms of relief and at the conclusion of the hearing, the respondents affirmatively waived a
request for voluntary departure.

The wife has a lawful permanent resident ("LPR") mother that lives with the respondents.

At the conclusion of testimony and presentation of all evidence on June 10, 2014 at 12:55
pm, the parties rested and the court advised the parties that it will take the matter under
advisement to issue a determination in the future as the available visa numbers for cancellation
of removal ("COR") relief are presently unavailable. !NA 240A(e)(I). The court has been
recently advised by the Court Administrator that numbers are available. This written decision
follows.

LATE FILED DOCUMENTS

During the proceedings on May 16, 2012 the court put parties on oral and written notice
that pursuant to US Immigration Court Practice Manual ("CPM") to submit any and all
materials, motions, papers and supporting documents to the court no later than before close of
business ("COB") on May l, 2013. The respondent failed to submit supporting documents in a
timely manner, as such, the late submitted materials were only marked for identification as
Exhibits 3F-ID to 3M-ID & Exh. 40-ID. The filing receipts for the cancellation applications
were marked into evidence as Exh. 4N. The late submitted materials were not placed into
evidence and were marked for identification purposes only.

The CPM states as follows:

Filing with the Immigration Court

3.1 (b) Timing ofsubmissions. Filing deadlines depend on the stage of

-

2
 . proceedings and whether the alien is detained. Deadlines for filings
submitted while proceedings are pending before the Immigration Court
(for example, applications, motions, responses to motions, briefs, pre-trial
statements, exhibits, and witness lists) are as specified in subsections (i),
(ii), and (iii), below, unless otherwise specified by the Immigration Judge.

3. 1 (c)(ii)(A) Deadlines on specific dates. - A filing may be due by a

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specific date.

3.1 (d)(ii) Untimelyfilings. - The untimely submission of a filing may have

serious consequences. The Immigration Judge retains the authority to
determine how to treat an untimely filing. Accordingly, parties should be
mindful of the requirements regarding timely filings.

Untimely filings, if otherwise properly filed, are not rejected by

Immigration Court staff. However, parties should note that the
consequences of untimely filing are sometimes as follows:

if an application for relief is untimely, the alien=s interest in that

relief is deemed waived or abandoned

if a motion is untimely, it is denied

if a brief or pre-trial statement is untimely, the issues in question

are deemed waived or conceded

if an exhibit is untimely, it is not entered into evidence or it is

given less weight

if a witness list is untimely, the witnesses on the list are barred

from testifying

if a response to a motion is untimely, the motion is deemed

unopposed

The CPM indicates that the Immigration Judge can specify a specific deadline date for
submission of evidence, motions, documents and supporting materials. Notices of the
requirements of the CPM provisions before its effective date were also prominently displayed
throughout the courthouse and written notices were provided to the public when the court
conducted business before and during the one year period education after the effective date. The
CPM is also accessible on the EOIR website.

The respondents submitted documents after the deadline date (Exhs 3F-ID to 3M-ID) and
on the date of the hearing (Exh. 40-ID).
3
 The respondent's counsel initially believed that the docwnents were timely submitted as
n oted by the May 1, 2014 time stamp regarding service of the materials upon the DHS-ICE
General Counsel's Office. However, counsel then noted that the documents were served at 4:00
upon DHS-ICE and since the court filing window closes for business at 4:00 pm, the documents
were submitted the next day on May 2, 2014, after the court imposed deadline date.

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The court did not find it to be reasonable why respondents waited so long to gather their
supporting materials after being placed on notice of the submission deadline date on May 16,
2012. The respondent was accorded more than two (2) years to obtain and submit supporting
docwnentation before close of business (COB). See Notice of Hearing notice dated May 16,
2012 in each file.

In addition, the respondent failed to submit a timely motion for an extension of time and
failed to indicate with any specificity what docwnents were forthcoming and the importance of

the materials in respondent's case.

The respondent has the burden to establish eligibility for the relief he seeks and their
failure to file supporting documents in a timely manner does not advance their claims Therefore,
Exhibits 3F-ID to 3M-ID & 40-ID were not admitted into evidence and respondent's ability to
submit the materials is deemed waived. 8 C.FR. 1003. 31(c); Matter ofInteriano-Rosa, 25 l&N
Dec.264 (BIA 2010).

CANCELLATION OF REMOVAL
(BOTH RESPONDENTS)

In a cancellation request, each respondent must prove that he or she has been
continuously present in the United States for a period of at least 10 years, that he or she is a
person of good moral character, and that his or her removal would result in exceptional and
extremely unusual hardship to the spouse, parent, or child, who is a United States citizen or
lawful permanent resident of the US. As of May l , 1997, 240A Cancellation of Removal and
Adjustment of Status was added to the Act by 304 of IIRIRA. The provision states as follows:

(b) Cancellation of Removal and Adjustment of Status for Certain

Nonpermanent Residents.
(1) In general. The Attorney General may cancel removal
of, and adjust to the status of an alien lawfully admitted for
permanent residence, an alien who is inadmissible or
deportable from the United States if the alien
(A) has been physically present in the United States for a
continuous period of not less than 10 years immediately preceding
the date of such application;
(B) has been a person of good moral character during such period;

4
 (C) has not been convicted of an offense under section 212(a)(2),
237(a)(2), or 237(a)(3); and
(D) establishes that removal would result in exceptional and
extremely unusual hardship to the alien's spouse, parent, or child,
who is a citizen of the United States or an alien lawfully admitted
for permanent residence.

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A. Continuous Presence
While the OHS-ICE hinted that the respondents' documentary submission was
deficient, the court finds that the respondents are entitled to consideration of Cancellation
of Removal as they have independently and credibly shown that they each have the
requisite ten (10) years of continuous residence in the US before the service of the NTA.
The respondents presented sufficient evidence in support of their continuous presence in
the US since their respective arrivals in the US. The OHS-CE representative did not
seriously challenge the respondents' documentary or testimonial evidence.

B. Good Moral Character

There was no adverse evidence relating to the respondents' moral character. The
OHS did not challenge the respondents' testimony that respondents have never been
arrested while in the US or any place else. The OHS did not offer any evidence to
challenge the respondents' testimony. Therefore, the court concludes that the respondents
possess the requisite good moral character for cancellation consideration.

C. Exceptional And Extremely Unusual Hardship

The court finds that the respondents have not presented sufficient evidence to
demonstrate their removal back to Ecuador would be an exceptional and extremely
unusual hardship to their US citizen children or wife's LPR mother.

A respondent applying for cancellation bears the burden of establishing statutory

eligibility for the relief as well as showing that he or she warrants a favorable exercise of
discretion. See 240(A)(b) ofthe !NA. Hardship is not a definable term of fixed and
inflexible meaning, and the elements to establish exceptional and extreme hardship would
most certainly be dependent upon the facts and circumstances of each case. See Matter of
Recinas, 23 l&N Dec. 467 (BIA 2002); Matter of Andazola, 23 l&N Dec. 3 19 (BIA
2002) and Matter of Monreal, 23 I&N Dec 56 (BIA 2001 ).

The relevant factors that would be relevant to the issue of the hardship
determination would include the demonstration that the qualifying relative would suffer
hardship that is substantially beyond that which would ordinarily be expected to result
from the applicant's departure. Matter ofMonreal, supra.

The BIA has also indicated that consideration should be given to the following
factors in assessing the hardship to the respondent's child. The factors include whether

5
 the respondent is the sole financial and familial support for the child, if deported. The
.
court should also assess the lack of any family in their native country; the children's
unfamiliarity with the language; and, the unavailability of an alternative means of
immigrating to this country. Matter ofRecinas, supra.

1. Extreme Hardship of the US Children and LPR Mother

As the law only considers the hardship to qualifying relatives, the court is limited

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in its hardship evaluation to the US citizen born children and LPR mother.

Generally, the fact that the respondents have US citizen born children does not of
itself justify cancellation. An alien illegally in the United States does not gain a favored
status by the birth of a child in this country. Even though a child may face difficulties
adjusting to life in the parent's homeland, these problems do not materially differ from
those encountered by other children who relocate with their parents, especially at a young
age. The respondent's sons are at the time of the hearing are eight (8) and eleven (l l)
years of age, respectively. The respondents contend that Tommy suffers from asthma and
has been using a nebulizer since a year old. The respondents indicate James suffers from
attention deficient disorder ("ADHD") and has been diagnosed about two and half years
ago. James is presently taking 40 milligrams ofMethyphenidatelacer. The wife presented
a refill bottle indicating that it was filled on 5/5/14.

However, when the respondent was asked what she knew about asthma

medication in Ecuador and the wife stated she did not know if it was available or not.

Since taking the medication for his ADHD, James has performed better in school.
Dr. Serruya's letter was not helpful as it failed to inform the court of the degree of James'
ADHD and his prognosis. When asked if the wife knew if the medication is available in
Ecuador, she stated that she did not know. The wife stated that she learned that the
medication, if available, is expensive and that she cannot afford it. The wife's
information is based upon information that her sister-in-law is unable to afford mediation
for her arthritis.

The court gave very little evidentiary weight to what the wife was told about the
cost of medication and the availability of the medication for her children based upon the
cost to her sister-in-law medication for an unrelated medical problem.

Further, the two children visited Ecuador in 2012 for three weeks and visited the
paternal grandparents. The children did not suffer any medical complications during their
visit. As of the date of the hearing, the sons have not suffered any serious physical or
mental disabilities. The sons are not suffering from any mental or psychological
difficulties.

The wife also stated that the education is not very good and that children are

6
abducted for organs. However, the court gave the wife's testimony very little evidentiary
weight as it was based upon information told to the wife by others.

The fact that economic and educational opportunities for the children are better in
the United States than in the applicant's homeland does not establish exceptional and
extremely unusual hardship.

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The wife claims that her LPR mother is ill and suffering from diabetes, high blood
pressure and has a heart condition from cholesterol. However, the respondent failed to
timely submit supporting documentation to corroborate the claim. The court gives the
wife's testimony about her LPR mother's medical conditions very little evidentiary
weight.

The wife alleges that her LPR mother picks up the children and the wife stated
she pays the mother about$200 per week for her services. Later, the respondent altered
her testimony to state that she did not pay her mother any money until they started their
own business. Therefore, for much of the wife's LPR mother's presence in the US, the
respondents have not provided any support and only recently paid the mother for child
care services. The LPR mother is also a receiving publicly subsidized health insurance as
the respondents have not provided any health care benefits to the wife's LPR mother.

The respondents' testimony about the quality of the schools in Ecuador based
upon phone conversations with relatives in Ecuador was given very little evidentiary
weight.

Additionally as an adverse discretionary factor, the court did not find the
respondents' to be contributing members of society. The court questioned the respondent
regarding their tax return for 2012 and 2013 (Hearing held on June 10, 2014). For 2012
the respondents filed a joint tax return claiming total income of$10,470.00. However
upon closer examination, the wife testified that she earned about$320.00 to 400,00 per
week and the husband earned$200.00 to 300.00 per week. Taking the lowest estimates
provided, the total would amount to$26,000 per year. The wife also testified that they
rented part of the house about$1,000 per month. This would increase their total income
to about$38,000 per year. The testimony and the tax returns are significantly
inconsistent. When asked for an explanation, the wife response was not convincing or
persuasive as she explained they began operating their new business in Feb 2012 and it
was not profitable. When confronted with the testimonial and documentary
inconsistencies, the wife changed her testimony to say they started their company in Feb
2013 and that she was confused about the dates.

The sons have not suffered any serious physical or mental disability. The sons are
not suffering from any mental or psychological difficulties. The respondents admit that
the son is not seeing or being treated by any psychologists or psychiatrist. The court gave

7
Drs. Corozo letter and Reich's Report very little evidentiary weight as they did not
appe in court to testify and were not subject to cross-examination. The sons also visited
the respondents' home country and experienced no problems or difficulties.

The court finds that the respondents have not established with sufficient evidence
that the wife's LPR mother or their US citizen born children will suffer exceptional and
extremely unusual hardship, as required by the law.

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Finally, the court closed the Record of Proceedings for additional evidence when
it took the matter under advisement to issue its determination and to await the availability
of a Cancellation of Removal number. INA 240A(e)(J). However, the respondents
attempted today to submit additional materials for the court's consideration, but the
respondents failed to submit a timely motion to the court explaining why the materials
were not submitted timely in accord with the court's submission deadline date. See
Court's written Notice ofhearing dated May 16, 20 1 2. The court did not accept the
untimely submission.

CONCLUSION

The court finds that the respondents have not presented sufficient factors to
demonstrate exceptional and extremely unusual hardship to their US citizen children or to
the wife's LPR mother.
The court finds that the requirement of significant hardships over and above the
normal economic and social disruptions involved in removal have not been met in order
to warrant a finding of exceptional and extremely unusual hardship.

Accordingly, the following orders will be entered:

ORDER

IT IS ORDERED that the respondents' request for Cancellation of Removal and

Adjustment of Status for nonpermanent residents under 240A(b)(l) of the INA is
Denied:

IT IS FURTHER ORDERED that the respondents be removed from the United

States pursuant to 212(a)(6)(A)(i) of the Immigration & Nationality Act, as amended.