Proving Exceptional and Extremely Unusual Hardship

Section 240A(b) of the Immigration and Nationality Act allows certain non-permanent residents to have their deportation or removal cancelled if they meet three general requirements.

First, applicants must have maintained 10 years or more of physical presence in the United States. Second, applicants must have no convictions for certain offenses that would make them inadmissible or removable under other sections of the act. Third, applicants must prove their removal would result in “exceptional and extremely unusual hardship” to a qualifying United States citizen or non-permanent resident spouse, parent, or child and that they are deserving of a favorable exercise of discretion in deportation proceedings.

What Constitutes Exceptional and Extremely Unusual Hardship?

While most applicants can show the 10-year physical presence minimum and “good moral character,” or the lack of criminal convictions, they are hard-pressed to show the last requirement of exceptional and extremely unusual hardship. This language sets the burden of proof so high that some judges have only found a severe handicap or terminal illness to meet it. Indeed, even well-documented cases of learning disabilities or terminal illness in a non-qualifying relative, such as an undocumented mother, were found to fall below the standard of exceptional and extremely unusual hardship. For example, an immigration judge deported an applicant father and found that end-stage renal failure in the undocumented mother did not constitute exceptional and extremely unusual hardship, even though the removal of the father and consequent lack of appropriate medical care for the mother would render the qualifying United States citizen child an orphan.

In general, judges have wide discretion to grant or deny applications for cancellation of removal and often find that the dire financial consequences, not to mention the severe emotional trauma, of splitting up a family do not rise to the standard of exceptional and extremely unusual hardship. Therefore, it is imperative for applicants to build the strongest case possible, as soon as possible, showing the difficulty their removal would cause to qualifying relatives. Since the documents supporting such a claim often take a great deal of time to organize, applicants should not wait until the last hearing to prove the claim by oral testimony alone.

Gather Evidence of the Impact of Your 10-Year Presence

Instead, start thinking about who in your family is a qualifying relative under the act. Remember that under a strict reading of the law, only United States citizens and permanent residents qualify as being affected, even if your removal would also affect undocumented family members. Begin organizing evidence that shows the impact - however small - your 10-year presence has made in this country. Do you attend church and know your minister? Can your priest write you a letter of recommendation? How about friends or neighbors with whom you volunteer? Were your children born and educated here? Have they won any awards, even for good attendance? Would their teachers or counselors be able to express in a paragraph or two how the removal of the children's primary breadwinner or support figure would affect their studies? Do not wait to get these letters or save these documents. Have them ready to submit with your application, which can be found here, through the U.S. Department of Justice.

Include Evidence with Your Application for Cancellation of Removal

Remember that you can always have these documents translated later, but the process takes time. Even on your hearing day, the judge will only have an hour or so to dedicate to your case, including the time it takes for cross-examination and translation of your oral testimony into English. Therefore, it is more efficient to turn over all your letters of recommendation from friends, employers, and teachers as soon as possible. Attach them with other evidence, such as your children’s report cards, your awards for volunteering, pay stubs, and taxes, as exhibits in support of your application for cancellation of removal. In this way, the judge will have already read the evidence before commencing the hearing and will know that your removal will cause exceptional and extremely unusual hardship to your family, even if the qualifying relative does not suffer from a severe handicap or terminal disease. For help with completing the application and attaching the necessary documents, consult an immigration lawyer near you.

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