                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 12a1179n.06

                                           No. 10-4558
                                                                                     FILED
                           UNITED STATES COURT OF APPEALS                         Nov 14, 2012
                                FOR THE SIXTH CIRCUIT                       DEBORAH S. HUNT, Clerk


SAUL NAVARRO,                                            )
                                                         )
       Petitioner,                                       )
                                                         )
               v.                                        )
                                                         )
ERIC H. HOLDER, JR., Attorney General,                   )       ON REVIEW FROM THE
                                                         )       BOARD OF IMMIGRATION
      Respondent.                                        )       APPEALS
___________________________________________              )




Before: BOGGS, COOK and WHITE, Circuit Judges.

       BOGGS, Circuit Judge. Petitioner Saul Navarro, a native and citizen of Mexico, seeks

review of a decision of the Board of Immigration Appeals (BIA) affirming, in a short opinion, the

decision of the Immigration Judge (IJ) denying his application for cancellation of removal. The IJ

denied Navarro’s petition on the grounds that he had not demonstrated that his removal would result

in “exceptional and extremely unusual hardship” to his United States citizen wife and children.

Navarro argues that the BIA and the IJ failed to follow BIA precedent in the process of considering

hardship factors. Navarro also argues that the BIA and the IJ seriously mischaracterized evidence

on the record, rising to an error of law. Because the BIA and IJ conducted appropriate factor-based

analyses, and evidentiary and balancing determinations are discretionary and unreviewable, we deny



                                                1
the petition for review. However, the case is remanded in part for the BIA to reinstate voluntary

departure in its discretion.

                                                    I

                                                    A

          Petitioner Saul Navarro, a 34-year-old native and citizen of Mexico, arrived in the United

States without inspection near the end of 1996. Navarro settled in Detroit, Michigan, securing steady

employment, buying a house, and fathering four children, the youngest two with Pauline Grace

Miller Navarro, whom he married on May 17, 2007. On June 5, 2007, Navarro was issued a notice

to appear, charging him as subject to removal as an alien not admitted or paroled. Navarro admitted

removability, but sought cancellation of removal pursuant to 8 U.S.C. § 1229b(b), with voluntary

departure in the alternative. After the government conceded that Navarro had established the

required ten years of physical presence, the only live question remaining was whether Navarro’s

removal would result in “exceptional and extremely unusual hardship” to his United States citizen

family.

          At the hearing, Navarro and his wife testified on the question of hardship, supporting their

testimony with documentary evidence. Navarro emphasized the seriousness of his children’s

medical conditions and the financial hardship that would result from the loss of his family’s primary

provider. In addition, both Navarro and his wife testified to the strong paternal bond he had with the

children and the great emotional hardship that would result from separation. Navarro also maintains

a relationship with his two older children from prior relationships, who visit once a week.

          As to medical hardship, Navarro and his wife testified that their daughter Olivia, now six

years old, suffered from breathing difficulties and recurrent ear infections, necessitating 30 sick visits


                                                    2
to the doctor before she turned three. Tubes inserted into her ears to control the ear infections were

largely effective, but would likely need occasional replacement. In addition, Olivia experienced a

febrile seizure1 at age 20 months brought on by an ear infection; the doctor prescribed Children’s

Motrin to keep down subsequent fevers. Medical records for the most part corroborated this

testimony except Mrs. Navarro’s concerns that the seizures could cause brain damage if not watched.

Navarro and his wife also testified that their son Saul, now eight years old, suffered from allergies

and asthma. The government contended that there was no medical evidence on the record to support

a diagnosis of asthma. The submitted medical records showed numerous doctor’s visits for upper

respiratory infections, a prescription for Albuterol to be used with a nebulizer, and a chest x-ray

(found to be normal) ordered because of coughing and shortness of breath. When asked directly if

he had any proof that his children suffer from “severe illness,” Navarro said no.

       As to financial hardship, Navarro testified that he was the primary income earner, making

approximately $670 (after taxes) per week as a painter. If he were deported to Mexico, he would be

unlikely to earn more than $100 per week as a painter. His wife only worked six hours a week,

making less than $50 per week. Neither Navarro’s nor his wife’s families would be able to give

much support: Navarro’s father lives in Mexico, his wife’s mother was recently laid off, and his

wife’s father only works a few hours a week. With respect to expenses, Navarro pays $50 weekly



       1
        “Febrile seizures occur in about 2 to 5% of children younger than 6 years but most often
occur in children aged 6 months to 3 years. Febrile seizures tend to run in families. Most children
who have a febrile seizure have only one, and most seizures last less than 15 minutes. . . . Febrile
seizures usually result from the fever itself. Most often, the fever is caused by an otherwise minor
infection such as a viral respiratory infection. In such cases, the infection and the seizure are
harmless.” Seizures in Children: Febrile Seizures, The Merck Manual Home Health Handbook
(online ed. 2009), http://www.merckmanuals.com/home/childrens_health_issues/neurologic_
disorders_in_children/seizures_in_children.html#v824476 (last accessed Nov. 5, 2012).

                                                  3
in voluntary child support to each of his non-marital children, reimburses the state of Michigan for

his children’s Medicaid, and pays the mortgage, utilities, and taxes on the family duplex. Navarro’s

wife testified that they would lose the house if Navarro were gone for just 3 to 6 months, since she

could not afford the mortgage payments of approximately $600 per month. Because of her children’s

health conditions, her (and the children’s) lack of Spanish, and her desire to stay close to family in

Michigan, Mrs. Navarro testified that she and the children would not accompany her husband to

Mexico. Navarro and his wife have accrued a small amount of assets, comprising $2,500 in home

equity and two cars with a total value of $3,500.

                                                   B

        The IJ, in a decision dated December 9, 2009, concluded that the hardship to Navarro’s

family would not “go beyond those ordinary hardships that spouses and children of deportees often

experience.” The IJ reasoned that the children’s medical conditions were “not any more serious”

than those many other children suffer and were largely under control. The IJ also found that while

the Navarros would experience a reduced standard of living, the “modicum of assets” acquired could

help pay the mortgage for a few months and the family would be eligible for public assistance if

necessary. The IJ also noted the close martial and family relationships and the young age of the

children. Considering all these factors, the IJ found it to be “a close case indeed,” but concluded that

the availability of another means of adjustment of status—due to the approved relative petition filed

by Navarro’s wife—weighed against granting cancellation. For the same reason, the IJ saw fit to

grant voluntary departure, to minimize the time for consular processing overseas.

        Navarro timely filed an appeal with the BIA, and has submitted evidence to this court that

he posted a voluntary departure bond of $500 within the required 5 days of the IJ’s decision. Pet’r’s


                                                   4
Br., Addendum D. The BIA issued a short decision on November 23, 2010, affirming the IJ’s

determination. The BIA was not convinced of the severity of the children’s medical conditions, and

followed the IJ in noting the potential means of lawful immigration. Because it had not received

notice of a voluntary departure bond, the BIA did not reinstate the period of voluntary departure,

entering the alternate order of removal to Mexico. This petition followed, pursuant to 8 U.S.C. §

1252(a).

                                                   II

                                                   A

        “Where, as here, the BIA reviews the IJ’s decision and issues a separate opinion, rather than

summarily affirming the IJ’s decision, we review the BIA’s decision as the final agency

determination.” Al-Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009). “To the extent that the

BIA has adopted the IJ’s reasoning, however, we also review the IJ’s decision.” Ibid. Here, the BIA

affirmed the IJ with a brief order, see 8 C.F.R. § 1003.1(e)(5), so we look to the IJ’s opinion for a

fuller articulation of the facts and reasoning.

        In order to “protect[] the Executive’s discretion from the courts,” Reno v. Am.-Arab Anti-

Discrimination Comm., 525 U.S. 417, 486 (1999), the immigration laws divest jurisdiction to review

“any judgment regarding the granting of relief under section . . . 1229b [cancellation of removal].”

8 U.S.C. § 1252(a)(2)(B)(i). Therefore, hardship decisions are typically unreviewable discretionary

determinations. Aburto-Rocha v. Mukasey, 535 F.3d 500, 503 (6th Cir. 2008).

        Nevertheless, there are exceptions to this rule, which permit a limited scope of review. See

id. at 502. First, a later provision in the jurisdiction-stripping subsection explicitly reserves “review

of constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). For legal questions, we


                                                   5
defer to the BIA to the extent that its legal conclusions rely on reasonable interpretations of the INA.

Shan Sheng Zhao v. Holder, 569 F.3d 238, 247 (6th Cir. 2009). While factual determinations are

ordinarily discretionary, some courts have held that an error of law occurs where material facts have

been “totally overlooked” or “seriously mischaracterized.” Mendez v. Holder, 566 F.3d 316, 323 (2d

Cir. 2009); see also Ayeni v. Holder, 617 F.3d 67, 73 (1st Cir. 2010) (holding that failure to accord

sufficient weight to seriousness of asthma was not legal error); Calva v. Att’y Gen., 335 F. App’x

244, 247 (3d Cir. 2009) (“[A]n argument that certain evidence has been discounted, rather than

mischaracterized, does not raise a legal question.”). Our case law has cautioned, however, that such

arguments may be “nothing more than a challenge to . . . discretionary and fact-finding exercises

cloaked as a question of law.” Reyes v. Holder, 410 F. App’x 935, 938 (6th Cir. 2011) (internal

quotation marks omitted) (quoting Abdul v. Holder, 326 F. App’x 344, 347 (6th Cir. 2009)).

        Second, we may “review the non-discretionary decisions that underlie determinations that

are ultimately discretionary.” Billeke-Tolosa v. Ashcroft, 385 F.3d 708, 710–11 (6th Cir. 2004).

Specifically, a “choice by the BIA to disregard its own binding precedent—even when deciding an

issue that is within its discretion—is not itself a discretionary decision.” Aburto-Rocha, 535 F.3d

at 503. Aburto-Rocha noted, however, that an agency’s interpretation of its own precedents receives

considerable deference. Ibid.

                                                   B

        The cancellation-of-removal statute permits the Attorney General to cancel removal when

four requirements are met: 1) at least 10 years continuous physical presence, 2) good moral character,

3) no conviction for specified offenses, and 4) demonstration that removal would result in

“exceptional and extremely unusual hardship” to the alien’s U.S. family. 8 U.S.C. § 1229b(b)(1).


                                                   6
Only requirement 4) is at issue in this case. To satisfy the requirement, BIA case law provides that

the alien must show the hardship is “substantially different from, or beyond, that which would be

normally expected from the deportation of an alien with close family members here.” In re Monreal-

Aguinaga, 23 I. & N. Dec. 56, 65 (BIA 2001). However, the alien need not show that the hardship

would be unconscionable. Id at 61. Factors to consider include the alien’s “immigration history,”

“conditions in the country of return,” “the possibility of other means of adjusting status in the United

States,” and the “ages, health, and circumstances of qualifying lawful permanent resident and United

States citizen relatives.” Id. at 63. All factors should be considered in the aggregate. Ibid.

                                                  III

        Navarro argues that both the BIA and the IJ mischaracterized evidence by 1) discounting the

seriousness of his children’s illnesses and 2) failing to understand the totality of the financial

hardship that would be faced by his family. We hold that although couched as legal errors, these

arguments simply challenge the BIA and the IJ’s discretionary assessment and weighing of facts.

                                                   A

        The IJ’s decision fully discussed the Navarro children’s medical afflictions and current state

of treatment, including Olivia’s ear infections, allergies, and seizure, and Saul’s allergies and

possible asthma. The IJ noted “that childhood allergies, ear infections, and asthma are common

afflictions for children in the United States.” Navarro argues that “the government attorney during

cross-examination of both Petitioner and his wife attempted to minimize the medical problems of

Petitioner’s children.” Pet’r Br. at 15. This may be true, but a judgment to “minimize” certain

evidence goes directly to the weight of the evidence, not whether the evidence was overlooked or

mischaracterized. Further, although the IJ did not find the illnesses rose to the level of “very serious


                                                   7
health issues,” Monreal-Aguinaga, 23 I. & N. at 63, the IJ properly still included them in her final

balancing of factors. Navarro also argues that the BIA, in finding no medical evidence on the record

of asthma, “made findings directly contrary” to the IJ. Pet’r Br. at 14. The BIA’s finding, however,

is completely consistent with the IJ’s conclusion that the children suffer from “possibly asthma.”

The IJ likely qualified the finding of asthma with “possibly” because—unlike most of the other

conditions testified to—asthma was not directly mentioned in the medical records. In any case, it

is unclear why the label of “asthma” is particularly important, since objective indicators of the extent

of Saul’s symptoms were considered: repeated visits to the doctor, worsening conditions in heat, and

the need for medication to control coughing and shortness of breath.

                                                   B

        Navarro also seeks to challenge the IJ’s characterization of the financial hardship that his

family would face. In his brief, Navarro refers to the extensive documentary evidence of expenses

in the record, suggesting that the IJ and BIA did not take them into account. Pet’r’s Br. at 17. First,

the expenses submitted by Navarro are basic necessities of the kind a decision-maker would assume

any homeowner is responsible for even without evidence; none are out of the ordinary. Further, the

IJ recognized the serious financial hardship that would be imposed, noting the possibility of resorting

to public assistance. Navarro’s real contention, therefore, is that the amount of hardship the IJ

required to meet the standard of “exceptional and extremely unusual” was too high. This is a

discretionary determination governed by BIA precedent, not a factual miscalculation.

        Navarro’s argument against the BIA is somewhat stronger. In its opinion, the BIA stated that

“respondent’s wife is employed.” While technically true, Mrs. Navarro only worked about 6 hours

a week in a minimum-wage job. However, it is not clear that the BIA cited this fact to support the


                                                   8
proposition that Mrs. Navarro’s current job would be sufficient to support the family. In the same

sentence, the BIA noted that the wife had no chronic medical issues. Given the entire statement, it

seems more likely that the BIA was making a similar point to that in In re Andazola-Rivas, 23 I. &

N. Dec. 319, 324 (BIA 2002), where the BIA found a single mother being deported to Mexico did

not meet the “exceptional and extremely unusual hardship” standard in part because her medical

condition was under control and she was “young and able to work . . . [and] ha[d] developed some

job skills.” Id. at 324; see also Galicia Del Valle v. Holder, 343 F. App’x 45, 53 (6th Cir. 2009).

Although Navarro has been the primary provider for the family, it was not erroneous for the BIA to

consider the possibility of rearranging employment and financial circumstances after removal.

Further, as the BIA is charged with issuing a “brief order” in such a case in the interests of judicial

efficiency, it need not, and should not, “mention every piece of evidence before it or every logical

element of a motion.” Precaj v. Holder, 2012 WL 3198542, at *5 (6th Cir. Aug. 8, 2012); see also

Aoraha v. Gonzales, 209 F. App’x 473, 476–77 (6th Cir. 2006) (“[The BIA decision] is entitled to

a presumption of regularity and thus a presumption that the evidence was considered.”). In this case,

we may presume that the BIA considered the IJ’s clear finding that Navarro was the primary income

earner, and that the BIA merely supplemented the IJ’s decision in order to note his wife’s

employability.

                                                  IV

       Navarro also challenges the BIA and IJ as misapplying controlling BIA precedent,

specifically by inappropriately weighing and assessing certain factors, failing to consider the

hardship factors in aggregate, and giving controlling weight to the potential for lawful means of

immigration. But Navarro’s real challenge is to the discretionary weighing determinations, since


                                                  9
both the BIA and IJ conducted standard factor analyses under the accepted guidance of Andazola-

Rivas and Monreal-Aguinaga.

       Navarro cites In re Recinas, 23 I. & N. Dec. 467 (BIA 2002), for the proposition that “the

hardship standard is not so restrictive that only a handful of applicants, such as those who have a

qualifying relative with a serious medical condition will qualify for relief.” Id. at 470. This is an

accurate statement of the law, but the IJ specifically found the ailments of the Navarro children to

be common afflictions, and Navarro himself testified that they were not “severe.” Whether the IJ

was correct in characterizing the Navarro children’s ailments as not “serious medical condition[s]”

is a question of fact, which this court has no jurisdiction to review.

       Navarro argues that neither the BIA nor IJ considered the hardship factors in aggregate. See

Ettienne v. Holder, 659 F.3d 513, 518 (6th Cir. 2011) (“Although difficult to imagine, such a claim

could conceptually fall within our jurisdiction.”). But as in Ettienne, Navarro cannot argue that the

IJ failed to articulate the proper standard: the IJ specifically made her conclusion “[c]onsidering the

totality of the circumstances and all of the evidence of the record both individually and

cumulatively.” Cumulative factor balancing is an inherently discretionary exercise for which legal

standards are hard to articulate, and Navarro points to no BIA precedent suggesting that the

balancing was done improperly. Navarro contends that “separation from family” was not given

sufficient weight, but the IJ considered the close family relationship and even noted the young age

of the children. This court will not second-guess the weighing determinations of the IJ or BIA.

       Evaluating Navarro’s next argument makes even clearer that the BIA and the IJ properly

considered all the evidence in the aggregate. Navarro argues that both the BIA and the IJ gave undue

weight to the possibility of lawful means of return. Yet neither gave this factor controlling weight,


                                                  10
instead considering it in light of Navarro’s other evidence of hardship. The BIA decision “also

note[d]” this factor after making its conclusion that Navarro had not established hardship

substantially beyond that which ordinarily would be expected. The IJ used this factor as the

“determinative,” tie-breaking factor only after finding the case to be “close . . . indeed” based on

weighing the other factors. Possibility of lawful return is especially important to consider in the

aggregate, since the emotional and financial hardships experienced by the alien’s spouse and children

would last only during his absence. Navarro is right to counter, in his brief, that time for consular

processing can be lengthy. Pet’r’s Br. at 22. Yet there is no evidence that the IJ or the BIA did not

weigh this risk—the IJ considered potential absence of up to several months, although not making

a specific finding on the expected consular processing time. The BIA and the IJ of course need not

have considered the evidence now submitted on appeal, Pet’r’s Br., Addendum A, B, but even these

documents do not suggest that Navarro’s processing time is expected to be longer than the times

surmised by the IJ.2

                                                  V

       There is one final matter to address in this case. In the alternative, Navarro requests the case

be remanded to the BIA for reinstatement of voluntary departure. The BIA declined to reinstate the

voluntary departure period on the grounds that Navarro did not provide timely proof to the BIA that

a bond had been posted, pursuant to the requirements of 8 C.F.R. § 1240.26(c)(3)(ii), effective




       2
         Navarro also argues for consideration of the additional time required to reenter now that the
alternate removal order has been entered. Since Navarro chose to forgo voluntary departure and
instead appeal, the length of time required to obtain a second waiver is irrelevant to the hardship
analysis. In any case, this argument will be moot if the BIA reinstates voluntary departure. See
Section V, infra.

                                                 11
January 20, 2009.3 However, it does not appear on the record that the IJ provided notice of this

requirement, as required by the regulation. 8 C.F.R. § 1240.26(c)(3) (“The immigration judge shall

advise the alien of the conditions set forth in the paragraph (c)(3)(i)-(iii).”). In cases where notice

of the requirement to notify the BIA has not been provided, “[b]ecause of the recognized importance

of such notice,” the BIA has held that “remand [to the IJ] is the appropriate remedy.” In re Gamero

Perez, 25 I. & N. Dec. 164, 168 (BIA 2010). In certain cases where the alien has demonstrated

timely payment of the bond, the BIA itself has reinstated the voluntary departure period. E.g., In re

Gonzalez Arriola, 2011 WL 1792082 (BIA Apr. 21, 2011); In re Ayala-Medina, 2011 WL 1792661

(BIA Apr. 15, 2011).

       The government’s argument that any error on the BIA’s part was harmless due to the

automatic termination provisions of 8 C.F.R § 1240.26(e)(1) and 8 C.F.R. § 1240.26(i) is misplaced.

Although it is true that a grant of voluntary departure is automatically terminated upon a motion to

reopen or reconsider or a petition for review, these provisions do not limit the BIA’s ability to

reinstate voluntary departure. 8 C.F.R. § 1240.26(h).4 The automatic termination provisions, also

effective January 20, 2009, were promulgated to resolve a circuit split over whether federal courts

could toll the period of voluntary departure during appeal. See Voluntary Departure: Effect of a



       3
        This provision provides in full: “An alien who has been granted voluntary departure shall,
within 30 days of filing an appeal with the Board, submit sufficient proof of having posted the
required voluntary departure bond. If the alien does not provide timely proof to the Board that the
required voluntary departure bond has been posted with DHS, the Board will not reinstate the period
of voluntary departure in its final order.”
       4
         This provision provides in relevant part: “An immigration judge or the Board may reinstate
voluntary departure in a removal proceeding that has been reopened for a purpose other than solely
making an application for voluntary departure, if reopening was granted prior to the expiration of
the original period of voluntary departure.”

                                                  12
Motion to Reopen or Reconsider or a Petition for Review, 73 Fed. Reg. 76927-01, 76928 (Dec. 18,

2008); Dada v. Mukasey, 554 U.S. 1 (2008). The goal was to maintain the “quid pro quo” of quick

voluntary departure while protecting aliens who appeal from “facing the consequences of failing to

depart.” Voluntary Departure, 73 Fed. Reg. at 76928, 76929. Although the alien cannot reap the

benefits of certain tolling of voluntary departure during appeal, the BIA may still in its discretion

reinstate voluntary departure. Therefore, since the BIA based its rejection on an erroneous

application of the notice requirement and not its discretion, the case should be remanded for the BIA

to see fit whether to reinstate the automatically terminated voluntary departure period. We would

note, as the IJ did, that while “the possibility of adjustment overseas weighs against a grant of

cancellation of removal . . . [it] weighs in favor of a grant of voluntary departure.”.

                                                 VI

       For these reasons, we DENY in part the petition for review, but GRANT the request to

remand to the BIA for reinstatement of voluntary departure.




                                                  13
       HELENE N. WHITE, Circuit Judge, (dissenting). I respectfully dissent.

       Even if Navarro’s removal or deportation lasts only several months, which is highly unlikely,

it will leave three United States citizens, his wife and two young children, homeless and destitute.

If that does not rise to the level of “exceptional and extremely unusual hardship,” one is left to

wonder, what does?

       Respondent acknowledges that mischaracterization of evidence could rise to legal error, as

held in Mendez v. Holder, 566 F.3d 316 (2d Cir. 2009). The petitioner in Mendez challenged the IJ’s

determination, affirmed summarily by the BIA, that he had not shown that his removal would result

in exceptional and extremely unusual hardship to his U.S.-citizen children. The Mendez court aptly

observed:

       We need not decide in this case whether the circumstances concerning the health
       issues faced by Petitioner’s children, considered in light of the questionable
       availability of medical care for their health needs in the event they return to Mexico
       with their parents, are so extreme that an agency decision finding no “exceptional and
       extremely unusual hardship” would be “without rational justification or based on an
       erroneous legal standard,” Barco-Sandoval [v. Gonzales], 516 F.3d [35,] 39 [(2d Cir.
       2008)] (internal quotation marks omitted), under the standards the BIA has
       established for determining whether an application for cancellation of removal
       demonstrated an “exceptional and extremely unusual hardship.” See In re Gonzalez
       Recinas, 23 I. & N. Dec. 467 (BIA 2002); In re Andazola-Rivas, 23 I. & N. [Dec.]
       319 (BIA 2002); In re Monreal-Aguinaga, 23 I & N. Dec. 56 (BIA 2001) .

       Instead, we dispose of this petition by noting that the agency’s decision rests on
       factfinding “which is flawed by an error of law.” Barco-Sandoval, 516 F.3d at 40.
       For example, although Petitioner testified that his nine-year-old daughter has around
       twenty-five asthma attacks each year, several of which require emergency visits to
       the hospital; that she must use a home nebulizer, a specialized piece of equipment,
       in addition to an ordinary inhaler; and that doctors do not expect her to outgrow her
       asthma, the IJ did not address any of these factors. Furthermore, the IJ stated
       incorrectly that “[t]he only evidence respondent has offered regarding this [asthma]
       is a letter from Dr. Hector Florman of the National Pediatric Center which only
       indicates that the children have been treated on multiple occasions with respiratory



                                                 14
       infections” and concluding that “[t]here’s nothing in the record to suggest that the
       asthma suffered . . . is severe in any way.”

       In addition, although the IJ concluded that Petitioner’s son, who suffers from Grade
       II Vesicoureteral Reflux-a condition that may lead to kidney or liver failure– was
       “cured or . . . certainly in remission,” the IJ did not address the fact that the son’s
       yearly examinations are highly specialized and that Petitioner’s area of Mexico, if he
       and his family are removed, has few doctors – let alone kidney specialists – and that
       Petitioner testified that he will not be able to travel to see specialized doctors or to
       pay for treatment.

       We readily acknowledge that the agency does not commit an “error of law” every
       time an item of evidence is not explicitly considered or is described with imperfect
       accuracy, but where, as here, some facts important to the subtle determination of
       “exceptional and extremely unusual hardship” have been totally overlooked and
       others have been seriously mischaracterized, we conclude that an error of law has
       occurred. The IJ did not make an adverse credibility determination, and we are not
       confident that, after taking the overlooked evidence into account and describing it
       accurately, the agency would come to the conclusion that Petitioner has not met the
       standard of “exceptional and extremely unusual hardship.” See, e.g., In re Gonzalez
       Recinas, 23 I. & N. Dec. at 470 (“[T]he hardship standard is not so restrictive that
       only a handful of applicants, such as those who have a qualifying relative with a
       serious medical condition, will qualify for relief.” (emphasis added)).
       ....
       Accordingly, we grant this petition and remand the case to the BIA to evaluate –
       cleansed of these errors – whether Petitioner established that his citizen children will
       suffer “exceptional and extremely unusual hardship” in light of the standards the BIA
       itself established in In re Monreal-Aguinaga and subsequent cases.

Mendez, 566 F.3d at 322-23.

       In the present case, the BIA mischaracterized the children’s amply-documented medical

conditions, stating that the children “reportedly have experienced ear infections and allergies,” that

Olivia “experienced one episode of a seizure due to high fever,” and that Navarro testified that he

had no proof of “severe” illness in the children.”1 AR at 4. This assessment of the children’s


       1
          Navarro, who testified with the aid of an interpreter, did not handle cross-examination very
well. He was asked on cross-examination if he had proof that his children suffered from “severe”
illness, and he answered no. However, Navarro’s testimony as a whole, Miller’s testimony, and the
children’s extensive medical records establish that both children suffer from recurrent medical

                                                 15
medical conditions is contrary to Miller’s testimony and the voluminous medical records Navarro

submitted, which establish that at age 2, Olivia suffered a grand mal seizure due to a high fever and

ear infection and must be monitored, and that she had 30 ear infections before age 2 1/2, when tubes

were placed in her ears. Miller testified that the doctor warned that if a seizure were to recur Olivia

could suffer brain damage. The medical records also showed that Olivia continues to have ear

infections since the tubes were placed, and that she also has breathing difficulties and allergies that

worsen in heat and summer. Similarly, Saul’s medical records show more than 25 doctor visits in

4 years for upper respiratory infections and allergies, and several treatments with Albuterol, which

is prescribed for treatment of pulmonary diseases, including asthma, and administered through a

nebulizer and face mask. Contrary to the BIA’s determination, Miller’s testimony and the children’s

medical records establish that both children suffer from recurrent medical conditions and require

frequent treatment. And, Navarro testified that if his family joined him in Mexico, medical treatment

for the children, if available, would be unaffordable, and the heat and humidity there would

exacerbate the children’s medical conditions.

       More importantly, the BIA overlooked or disregarded that Navarro’s United States citizen

wife and their two young United States citizen children will be left homeless and destitute if Navarro

is removed to Mexico, even if only for a few months. The BIA’s unqualified statement that Miller

“is employed” is a gross mischaracterization— the record is clear that Navarro is, in effect, the sole

wage earner for the family in that Miller works six hours a week and earns approximately $88 every

two weeks, and has to pay for child care while she works. The record is also clear that the Navarro

family receives no outside financial assistance and that Miller’s parents are unable to assist


conditions that require treatment and medication.

                                                  16
financially or house her and the children. Navarro testified that the cost of living is high in Mexico,

that painters earn approximately $ 20 a day, and that on that income he would be unable to provide

any support to his wife and children.

       The BIA apparently agreed with the IJ’s determination that Miller would be able to sell the

Navarros’ assets and thereby make the land-contract payments for three to six months, presumably

until Navarro is able to legally immigrate to the United States. This conclusion defies reason and

is unsupported by the record. The “assets” are two used cars with a combined value of $ 3,500 and

$ 2,500 of equity in the duplex in which the Navarros live. Even if Miller could sell one or both of

the cars and even if she could miraculously obtain a loan on her near non-existent pay (having lost

Navarro’s salary), she would not be able pay the $ 1,363 in monthly expenses and in addition pay

for food, medicine, clothing, and other necessities even for three months. Query whether Miller

could work and transport the children without any vehicle, and whether any financial institution

would loan her money given her meager earnings?

       The BIA ignored that Navarro would need two waivers to re-enter the United States, a waiver

for his illegal entry and a waiver of the final order of removal. See INA § 212(a)(9)(A)(i) and

(B)(i)(II) (8 U.S.C. § 1182(a)(9)(A)(i) and (a)(9)(B)(ii)). The BIA ignored that many waiver

applications take between 12 to 15 months for adjudication,2 much longer than the IJ surmised. The


       2
      Navarro’s appellate brief asks this court to take judicial notice of this time period, attaching
a summary of the waiver process that states:

       In certain circumstances, individuals who have been found ineligible for an
       immigrant visa under the Immigration and Nationality Act (INA) may be eligible to
       apply for a waiver of the ineligibility. At the time of the immigrant visa interview,
       the consular officer will make a determination as to whether an applicant is waiver
       eligible. If the consular officer finds an applicant ineligible for a visa, but eligible to
       apply for a waiver, the officer will give the applicant instructions on how to apply for

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meager assets the Navarros have would be needed for the family’s survival and to pay the substantial

immigrant-visa charges and related travel costs for Navarro. In sum, regardless whether Navarro is

eventually able to lawfully immigrate to the United States, in the interim, the three United States

citizens he alone supports, his wife and two children, will be left homeless and destitute.

       As in Mendez, the BIA here mischaracterized or overlooked salient facts that were essential

to the determination of exceptional and extremely unusual hardship. For these reasons, I would grant

the petition for review and remand to the BIA to evaluate—absent mischaracterization of the

evidence—whether Navarro established that his United States citizen wife and minor children will

suffer “exceptional and extremely unusual hardship.”




       the waiver and will direct them to make a waiver appointment.

       The waiver application and supporting documentation are reviewed by the U.S.
       Citizenship and Immigration Services (USCIS), which has jurisdiction for
       adjudicating all waiver applications submitted in Ciudad Juarez. If the waiver is
       readily approvable, the applicant usually receives his or her immigrant visa via DHL
       courier within a few days of the waiver appointment. Otherwise, the waiver
       application is referred for further review and the applicant is given the opportunity
       to submit additional hardship evidence. Applicants are notified in writing of the
       waiver decision and given instructions on how to proceed. Waiver applications
       referred for further review normally take between twelve to fifteen months to
       process.

Embassy of the United States, Visas > Immigrant Visas > Waivers - The Waiver Process,
http://ciudadjuarez.usconsulate.gov/waivers.html (last visited November 9, 2012). The Department
of State manages this website.

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