Nevarez

I. BACKGROUND

Herminio and Aracely Nevarez, petitioners, are natives and citizens of Mexico who entered the United States without inspection in 1990. They have three sons, all of whom are United States citizens and have been diagnosed with learning disabilities of varying severity.

The government commenced removal proceedings against the petitioners in 2002. Petitioners conceded removability but requested cancellation of removal based on the hardship that would result to their two older children, who they knew at the time had learning disabilities. The immigration judge (“IJ”) denied relief, finding that the difficulties for the two children would not rise to the level of “an exceptional and extremely unusual hardship.” The IJ, however, granted a voluntary departure period of 60 days.

The petitioners appealed the decision to the BIA, which affirmed the IJ without opinion on November 3, 2004, but reduced the duration of voluntary departure from 60 to 30 days. The petitioners filed a timely petition for review with this court.

While the petition for review was pending before us, the petitioners filed their first motion to reopen on April 8, 2005, presenting new evidence to the…