Background
Petitioner Licel Tobon-Garcia, a native and citizen of Mexico, sought review of an order by the Board of Immigration Appeals dismissing his appeal of an immigration judge’s denial of cancellation of removal. The immigration judge denied the request after finding that Tobon-Garcia’s wife and son would not suffer exceptional and extremely unusual hardship resulting from his removal.
The court’s reasoning
The court reviewed the agency’s determination for substantial evidence, noting that the hardship must be out of the ordinary and exceedingly uncommon. The immigration judge considered the wife’s medical, emotional, and financial needs, finding her medical conditions did not affect her day-to-day life and she had employer health insurance. The judge also found her financial hardship mitigated by her self-support and family assistance with mortgage payments. Regarding the son, the judge found he lived with the petitioner only on weekends and would remain in the United States with his mother and stepfather, continuing to receive financial support and health insurance. The court concluded that while family separation might cause emotional hardship, it was not unusual enough to warrant cancellation of removal.
the hardship must be out of the ordinary and exceedingly uncommon
Gonzalez-Juarez, 137 F.4th at 1006
What it means going forward
The denial of the petition for review affirms the Board of Immigration Appeals’ decision to dismiss the appeal, leaving the immigration judge’s denial of cancellation of removal in effect.