| One of the forms of relief some foreign nationals who | | | | was. In Monreal, the Board attempted to define the |
| unhappily find themselves in removal proceedings can | | | | meaning of "extreme" and "exceptional and extremely |
| apply for is called cancellation of removal. There are | | | | unusual." |
| two types, one for people who have a green card but | | | | And here's the main point: They are both difficult, high |
| stand to lose it due to some violation or criminal ground, | | | | standards. Much higher than a mere showing of |
| and the other for those aliens who never had a green | | | | hardship. But not necessarily to show that it would be |
| card. "LPR" means "lawful permanent resident," or | | | | "unconscionable." For both types of removal, there is a |
| green card holder - so the first type is often called | | | | focus on the raw level of hardship, and it has to be |
| LPR cancellation, and the second type non-LPR | | | | pretty extreme. |
| cancellation. Each one has its own requirements, but | | | | For non-LPR cancellation, however, there is another |
| the lynchpin is usually the showing of hardship. | | | | focus. That is the uniqueness of the hardship. The year |
| The law doesn't care about hardship to the foreign | | | | after Monreal, the Board considered two more cases |
| national. Instead, it focuses on hardship to family | | | | to further define what "exceptional and extremely |
| members (spouses and children) who are US citizens | | | | unusual hardship" means. These two cases were |
| or green card holders. Essentially, assuming they meet | | | | Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) and |
| the other requirements, they have to show that their | | | | Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). The |
| removal from the United States would result in | | | | Board found that "the hardship standard is not so |
| hardship to their spouse and/or children. | | | | restrictive that only a handful of applicants, such as |
| If it's LPR cancellation, the hardship to the family must | | | | those who have a qualifying relative with a serious |
| be "extreme." And for non-LPR cancellation, it must be | | | | medical condition, will qualify for relief." Recinas at 470. |
| "exceptional and extremely unusual." What do these | | | | Recinas, which is the most recent of these three |
| terms mean? | | | | cases, noted further that any review of "exceptional |
| In short - it depends. | | | | and extremely unusual hardship" decisions from the |
| Part of a lawyer's job is to conduct a very thorough | | | | Immigration Judges would start with a consideration of |
| investigation into the personal lives of their client, to | | | | the factors in Monreal and Andazola. |
| determine exactly how a foreign national's removal will | | | | So what types of factors were looked at in these |
| impact a family. This is one of the hardest and most | | | | three cases? Things like how foreign the culture would |
| challenging things for a lawyer to do. Because every | | | | be to the US citizen children. Financial and emotional |
| foreign national's family thinks that the hardship they | | | | support. Family separation. Family support in the US |
| would have to go through is extreme. (And, in the | | | | versus in the country of removal. Educational |
| opinion of this lawyer, they're usually right.) But the law | | | | opportunities for the children. Medical conditions. |
| doesn't necessarily agree. These hardship standards | | | | Whether the foreign national had any other form of |
| can be very difficult to meet. | | | | relief available. Quite literally, almost anything could be |
| LPR cancellation's "extreme" hardship, despite the way | | | | considered, but these factors would definitely be |
| it sounds, is actually more workable of a standard than | | | | looked at. Facts must be independently considered, |
| non-LPR's "exceptional and extremely unusual" | | | | and the hardship evaluated in the aggregate (per |
| standard. Each form of hardship must involve the | | | | Matter of Ige, 20 I&N Dec. 880 (BIA 1994). |
| examination of many factors, not the least of which is | | | | And once looked at, how would they be applied? In the |
| family separation, particularly where there are young | | | | non-LPR cancellation scenario, the court will ask not |
| US citizen children involved. We have found it is useful | | | | only how hard would it be, but how unusual is the |
| (if not essentially a requirement) to have a psychiatric | | | | hardship. In other words, removal almost always results |
| or psychological evaluation to determine, in medically | | | | in financial hardship. There is almost always some |
| objective terms, the effect of a family member's | | | | degree of cultural readjustment. There is almost |
| removal. | | | | always a loss of family support. So if that's all that's |
| These standards date back to the original Immigration | | | | there, then even if the hardship is extreme, cancellation |
| & Nationality Act of 1952. In Matter of Monreal, 23 I&N | | | | will likely not be granted because these hardships, while |
| Dec. 56 (BIA 2001) the Board of Immigration Appeals | | | | extreme, are not unusual. |
| first considered the application of the standard for | | | | Contrast that with the case of a single mother with, |
| "exceptional and extremely unusual hardship." It noted | | | | say, 6 children who don't speak the language of the |
| that in the original Act, Congress intended for | | | | removal country. Or where there's only one child but |
| suspension of deportation (the old term for cancellation | | | | the child is autistic and there is no treatment for this |
| of removal) only if it would be "unconscionable" to | | | | condition in the country of removal. These types of |
| deport the person. According to the Board, this | | | | hardship are not as run-of-the-mill. Caring for 6 children |
| standard was meant to be very high indeed. Yet | | | | is not the same as caring for 1 or 2. Assuming other |
| Board case law from 1952 onward shows that in | | | | requirements are met, these scenarios are more likely |
| practice, the standard was (comparatively) not that | | | | to result in the grant of cancellation of removal. |
| difficult to meet. In addition, it used to be relevant to | | | | These are tough cases. The burden is high, and the |
| show hardship to the foreign national in addition to the | | | | proof is very detailed. We hope that legislation might |
| hardship to the family. | | | | be passed to allow the court to consider the hardship |
| That all changed in 1996. With the passage of IIRAIRA, | | | | to the foreign national, because applying legal blinders |
| the old suspension of deportation form of relief was | | | | to this hardship necessarily means that the hardship |
| replaced by the new scheme of cancellation of | | | | analysis will be shortsighted and incomplete. If you are |
| removal, one for LPR's and another for non-LPR's. No | | | | in removal proceedings, cancellation is one option that |
| longer would hardship to the foreign national be | | | | can work to save your life in the United States when |
| considered, no matter how extreme or exceptional it | | | | there are no other options available. |