Pierre, Janeen Jihan Hicks, Esq.

Rawls, Scheer, Foster & Mingo, PLLC

1011 East Morehead Street, Suite 300
Charlotte, NC 28204
Name: C , K
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Of fice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls C111rch, Virginiq 20530
OHS/ICE Ofice of Chief Counsel - CHL
5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212
A 101
Date of this notice: 6/23/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Miller, Neil P.
Greer, Anne J.
Sincerely,
Donna Carr
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: K-C-, AXX XXX 101 (BIA June 23, 2014)
'
<.
U.S. Department of Justice
Executive Ofce fr Iigrtion Review
Falls Church Virginia 20530
File: 101 -Charlotte, NC
I re: C
IN RMOVAL PROCEEDINGS
APPEAL
Decision of the Boad of Iigration Appeals
Date:
[.UN 2 3
2014
ON BEHALF OF RESPONDENT: Janeen Jiha Hicks Piere, Esquire
ON BEHALF OF DHS:
CHARGE:
Lisa P. Durant
Assistant Chief Counsel
Notce: Sec. 237(a)(l)(B), l&N Act [8 U.S.C. 1227(a)(l)(B)] -
I te Unite States in violation of law
APPLICATION: Asylum; with olding of reoval; Convention Against Tortue;
cacellation of reoval under section 240A(b) of the Act; voluntary deare
The respondent, a native and citzen of Senega, appeals the Immigation Judge's October 10,
2012, decision denying her application fr cacellation of removal under section 240A() of the
Immigation and Nationality Act, 8 U.S.C. 1229b(b), ad deying her application fr asylum,
withholding of removal, and protection under the Convention Against Tortue ("CAT"). See
sections 208, 241(b)(3) of the Act, 8 U.S.C. 1158, 123l(b)(3); 8 C.F.R. 1208.13,
1208.16-1208.18. Te appeal will be sustained in par and te record will be remanded as set
frth below.
We review fr clea eror the fndings of fct, including te deterination of credibility,
made by the Immigation Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all othe issues,
including whete the paties have met te relevat burden of proof, and isses of discretion.
8 C.F.R. 1003.l(d)(3)(ii). The respondent's applications were fled afer May 11, 2005, and
teefre ae goveed by the provisions of te REAL I Act. Mater of S-B-, 24 l&N Dec. 42
(BIA 2006).
The respondent was admitted to te United States on May 21, 1998, as a nonimmigant
visitor. The respondent fled an application fr asylum and witholding of reova (For 1-589)
with te United States Citizenshp and Imigation Services ("USCIS") on Januay 25, 2011.
The respondent's applicaton was referred to te Imigation Court and she was issued a.otice
to Appear (''NTA") initiating removal proceedings. The respondent admitted te fctal
allegations and conceded reovability; therefre, removability has been established by ce and
convincing evidence (Tr. at 8; l.J. at 1). The respondent has two United States citizen daughters,
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Cite as: K-C-, AXX XXX 101 (BIA June 23, 2014)
101
ages 9 and 7, and a 22-year old daugte who was bor in Senegal.
1
All of te respondet's
children reside with her in te United States. The respondent's husband, who is te fther of he
two youngest chldren, lives in Senegal. Te respondent clams tat if she and her daugters
ret to Senegal, the two youngest children will experience excetional and extemely unusual
hardship, as it is likely they will be subjected to fmale genita mutlation ("FGM") by the
respondent's husband's family.
To qualif fr cancellation of removal, te respondent must demonstate that he "remova
would result in exceptional and extemely unusua hardshp to [he] spouse, paent or child, who
is a citizen of the United States or a alien lawflly admitted fr peranent residence." See
section 240A(b)(l)(D) of the Act. O appeal, te respondet challenges te Imigaton Judge's
deternaton that she did not establish the requisite level of hardship to her United States citizen
children (Respondent's Br. at unnumbeed 6-8).
Upon de novo review, we conclude that the respondent established tat he reoval would
result in excetiona and extemely unusual hardship to her Unted States citize daugters. The
Imigaton Judge noted tat the fcus of the hadship inquiry was te potentia han to te
respondet's daugters, based on the fa tat her daugtes would be subjected to FGM in
Senegal (I.J. at 7-8). The Imigation Judge concluded that he was "not persuade tat te
respondet's daugtes will be subject to FGM in Senegal" (I.J. at 8). Howeve, when
consideing al hadship fctors cumulatively, including the stong evidence relating to te
likelihood of FGM, we conclude tat te respondent has shown tat he daugtes will
expeence exceptional ad extemely unusua hadship in Seegal. See Mater of Monreal,
23 I&N Dec. 56, 64 (BIA 2001) ("[A]ll hadship fctors should be considered in te aggegate
when assessing exceptional ad extemely unusual hardship.").
The respondent has presented evidence, in the fr of her testimony and a siged afdavit,
that the women in her husband's faily have undegone FGM and that her mote-in-law sougt
to circumcise te respondent's daugters when tey visited family in Senega (Tr. at 28-29,
33-35). The respondet also provided an eal fom he husband's fiend tat discussed her
mothe-in-law's stong felings tat her gaddaugters undergo FGM (Ex. 2, Tab G at 62).
Additionaly, te Immigation Judge stated that he considered te count conditions evidence in
te record (see Ex. 2, tabs D & F; I.J. at 2), which incudes evidence tat indicates a hg level
of circucision (between 50-88 percent) among te respondent's husband's etnic goup (i.e.,
Tukulor or Toucouleur) (see Ex. 2, tab F, at 4, 49). Moreover, in Tambacounda, where the
respondent's husband's family lives, the rate of FGM is 86% (Ex. 2, tab F, at 51). Furerore,
the U.S. Deaent of State County Report fr Hua Rigts Practices fr 2011 -Seegal,
which was discussed by the Immigation Judge, indicates that te Toucouleur sometimes practice
sealing, "one of the most exteme ad dangerous frs of FGM" (I.J. at 7; Ex. 2, tab D, at 32).
Based on te testimonial ad docuenta evidence in te record, we conclude tat te
respondent deonstated a reasonable possibility tat her Unted States citizen daugters will be
1
The respondet's oldest daugter, , was aso in removal
proceeings ad was a rder on te respondent's asylum application. Her case was
administatively closed so that she may pursue prosecutoral discetion wit te Depaent of
Homeland Security ("DHS"). Thus, only the lead respondent's case is befre us.
2
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Cite as: K-C-, AXX XXX 101 (BIA June 23, 2014)
101 .
('
"
'
subjected to FGM in te event that tey must accompany te respondent to Senegal. We regad
te possibility of serious ha to te respondent's daugters as a hardship that is ''well beyond
that which is noraly experience in most cases of removal." Mater of Recinas, 23 I&N
Dec. 467, 472 (BIA 2002). The potential educational hardships fcing te respondent's
daugters are fer fctors that aggavate the hardship tat the respondent's daugtes will
likely fce if te respondent is removed (Exh. 2, tab D, at 31 ).
Considering te hadship evidence cumulatively, we conclude that te respondent
deonstated tat her removal would result in te required level of hardship to her United States
citizen daugters fr puroses of section 240A()(l)(D) of the Act. See id.; Mater of Monreal,
supra, at 64. Therefre, te respondet has established statutory eligbility fr cancellation of
removal, inasmuch as the Imigation Judge determined that she satisfed the reuirements
unde sections 240A(b)(l)(A), (B) and (C) of te Act (I.J. at 4). See section 240A(b)(l) of the
Act.
Furteore, upon de novo review, we conclude that te respondet met her burde of proof
to demonstate tat she merits cacellation of remova in te exercise of discetion. Wle te
Immigaton Judge ultimately concluded that te respondent did not meit a fvorable exercise of
discetion due to concers wit the respondent's credibility (I.J. at 8), the record refects te
presence of severa positve discretionary fctors tat outweig tese conce, icluding te
hardships discussed above, as well as the respondent's tes to. te United States, letters of
refrence fom fiends, history of eployment, ad flflment of tax obligations (Tr. at 30-31;
Exh. 2, Tabs H-0). See generally Mater of C-V-T-, 22 I&N Dec. 7, 11 (BIA 1998). Te
Immigation Judge fer observed tat the respondent had no aests or convictions (I.J. at 4;
Tr. at 31 ). Thus, we hold that, on balance, te respondent wa ants a gant of cancellation of
removal as a matter of discretion. See id. at 8-9.
Terefre, we will sustan te respondet's appeal of te denial of her application fr
cacellation of removal, vacate the Immigation Judge's deial of te respondent's application
fr cacellation of removal, and remad te record to allow te DHS te opportunity to complete
the required backgound ad security checks. I ligt of our disposition of this matter, we need
not reach te respondent's arguments tat the Imigation Judge aso ered i denying her
application fr asylum, withholding of removal, ad protection unde the Convetion Against
Torture. Accordingly, te fllowing orders will be entered.
ORDER: The appea is sustained in part, and the Immigation Judge's denial of the
respondet's application fr cacellaton of remova is vacated.
FURTHER ORDER: Pursuat to 8 C.F.R. 1003.l(d)(6), te record is remanded to te
Immigation Judge fr te purose of allowing the Deaent of Homeland Secuty te
opportnity to complete or update identity, 18. w eforceet, or secuity investigations or
exainations, ad fher prceedings, if necessary, ad fr the entry of an order as provided by
8 C.F.R. 1003.47().
FO THE BOA
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Cite as: K-C-, AXX XXX 101 (BIA June 23, 2014)