Exceptional and Extremely Unusual Hardship

In recent weeks, we have looked at cancellation of removal for unauthorized immigrants who are in deportation proceedings. As you will recall, cancellation of removal awards a green card to unauthorized immigrants who can prove that they meet certain eligibility criteria.Cancellation of removal is often times a difficult defense to present. Government attorneys tenaciously oppose most applications for cancellation of removal. And, many immigration judges rule on these applications strictly, granting them only in the most extraordinary cases. With this in mind, anyone in removal proceedings should consult with an experienced immigration attorney who can advise them of their options and present a clear defense strategy.

The Requirements for Cancellation of Removal

An application for cancellation of removal is filed with the immigration court. The application and any supporting documentation should be clearly organized, translated into English if necessary, and prove each of the requirements for cancellation of removal.

To qualify for cancellation of removal, you must be in deportation proceedings and meet the following criteria:

  1. You have been physically present in the United States for ten years prior to your deportation proceedings;
  2. You are a person of good moral character (and that you continue to be during your deportation proceedings);
  3. You have not been convicted of certain criminal offenses; and
  4. Your removal from the U.S. would cause exceptional and extremely unusual hardship to your parent, spouse, or child who is a U.S. citizen or legal permanent resident.

We have discussed the other requirements for cancellation of removal in other articles. Please be sure to look at those. This article focuses on the fourth requirement above.

Qualifying Relative

To qualify for cancellation of removal, you must show that a qualifying relative will suffer the sort of hardship required by law. Not just any relative is a qualifying relative (and not just any hardship will work). Your removal from the U.S. must affect one of the following:

  • Your U.S. citizen or legal permanent resident spouse;
  • Your U.S. citizen or legal permanent resident parent(s); or
  • Your U.S. citizen or legal permanent resident child(ren)

Note that spouses, parents, and children who lack immigration status do not meet the definition of qualifying resident. Similarly, spouses, parents, and children who are currently enrolled in a deferred action program like DAPA or DACA do not qualify. Relatives who hold some form of nonimmigrant visa status don’t either. Finally, other relatives (siblings, aunts, cousins, grandparents, etc.) are not qualifying relatives for cancellation of removal purposes, even if they happen to be U.S. citizens or legal permanent residents.

To prove your relationship to a qualifying relative, you must provide a copy of the relational documents. Most commonly, you will present a birth certificate or marriage certificate. You will also need documentation that proves your qualifying relative is a U.S. citizen or legal permanent resident. Copies of U.S. passports, green cards, or U.S. birth certificates are sufficient in this regard.

Exceptional and Extremely Unusual Hardship

The most difficult element to prove in a cancellation of removal case is that one of the qualifying relatives discussed above will suffer “exceptional and extremely unusual hardship if you are deported.

Note that the immigration court is not evaluating the hardship that you will face if you are returned to your home country. There are, however, some defenses to deportation that do consider this (e.g., asylum and withholding of removal). If you think you will be physically harmed upon return to your home country, you should discuss this concern with your immigration attorney. You may be eligible for relief from deportation under a different defense than cancellation of removal.

The Board of Immigration Appeals has provided examples of exceptional and extremely unusual hardship in the cancellation of removal context. All deportations are difficult and cause hardship. Cancellation of removal requires much more than these ordinary hardships.

The Board found exceptional and extremely unusual hardship in each of the following situations:

  1. An applicant with a U.S. citizen or legal permanent resident child who has a serious health or medical issue (this is by far the most common scenario under which cancellation of removal is granted);
  2. An applicant with aging U.S. citizen or legal permanent resident parents who depend on the applicant for financial, physical, and emotional support and care;
  3. An applicant with a U.S. citizen or legal permanent resident child who has a learning disability or special educational requirements; and
  4. An applicant with a U.S. citizen or legal permanent resident spouse who is suffering from extreme psychological issues.

The above list is meant to be instructional and by no means presents the only situations in which cancellation of removal can be approved. In certain cases, the Board of Immigration Appeals has found exceptional and extremely unusual hardship in cases where substandard conditions in the applicant’s home country would adversely affect a qualifying resident forced to move there. These instances, though, are increasingly rare.

Documenting Hardship

Successful applicants for cancellation of removal present a strong, well-documented case. It is possible to prove exceptional and extremely unusual hardship through a variety of means, depending on the particular situation:

  • Physical Documentation Much of the hardship case can be proved through physical documentation. Medical, employment, educational, rehabilitation, and therapy records all may be important to show hardship. Make sure the records are complete and relevant.
  • Expert Opinion Often times the physical and emotional hardships that a qualifying relative might suffer can best be explained by experts. Doctors, therapists, counselors, clergy, etc. should offer written affidavits that explain the hardship. They should also be prepared to testify in court in support of your application.
  • First-Hand Accounts Don’t forget to get the perspective of the qualifying relative who will suffer hardship if you are deported. Your U.S. citizen or permanent resident spouse, child, or parent should write an affidavit outlining their point of view. They should also be prepared to testify in court in support of your application if possible.

Again, the list above is not exhaustive. A variety of evidence may be used to prove hardship in a cancellation of removal case. An experienced immigration lawyer in New Jersey is available at Andres Mejer Law to help you gather the items necessary to prove hardship and can ensure that you are making the best possible case.

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