Luis Franco-Rosendo Eulalia Zacarias De Franco v. Alberto R. Gonzales, Attorney General

Luis Franco-Rosendo and Eulalia Zaca-rías de Franco, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals (“BIA”) decision of September 24, 2004, denying their motion to reopen. We grant their petition and remand to the BIA for further consideration.

The petitioners entered the United States from Mexico without inspection on or about April 25, 1990. They are married and currently reside in Reedley, California with their four United States citizen children. On December 3, 2001, the petitioners were issued a Notice to Appear. In the subsequent hearing, the couple conceded removability but requested cancellation of removal. The Immigration Judge (“IJ”) denied their request. The IJ’s decision was affirmed by the BIA on the ground that the couple failed to demonstrate that their United States citizen children would suffer “exceptional and extremely unusual hardship.” 8 U.S.C. § 1229b(b)(l)(D). The BIA instead granted voluntary departure.

By the time voluntary departure was granted, however, the female petitioner had become seriously ill. The couple failed to pay their departure bond and thus, they argue, effectively declined the offer of voluntary…