Exceptional and Extremely Unusual Hardship:
BIA Reverses Immigration Judge Ruling on an Undocumented Family of 6
September 26, 2002

When it comes to deportation proceedings, now known as removal proceedings, the options available for individuals to put up a defense have become more and more scarce over the years. One defense option that remains is one where an undocumented or illegal alien has an opportunity to demonstrate 1) 10 years of physical presence in the U.S., 2) good moral character and 3) that deportation would pose an “exceptional and extremely unusual” hardship to a U.S. citizen or permanent resident parent, spouse or child. The defense is known as “cancellation of removal”, and if granted, the individual is conferred U.S. permanent residence. Again, however, it is only within the context of removal proceedings that such relief is available. In a recent decision, the Board of Immigration Appeals (BIA) further defined exactly what constitutes “exceptional and extremely unusual hardship”.

Board of Immigration Appeals Further Defines “Exceptional and Extremely Unusual Hardship”

The case involved a 39 year old native and citizen of Mexico who entered the U.S. on a visitor visa back in 1988, and except for a brief visit back to Mexico in 1992, she had been continuously present in the U.S. since that time. She had six children, and 4 were U.S. citizens, ages, 12, 11, 8 and 5 years old. In proceedings before the Immigration Court, cancellation of removal relief was denied, because, according to the Immigration Judge presiding, “exceptional and extremely unusual hardship” to these children was not demonstrated. The court, in interpreting previous decisions defining this standard concluded that these family members would not “suffer hardship that is substantially beyond that which would ordinarily be expected” as a consequence of their mother’s departure. And such a conclusion is in keeping with, what had been up to this point, a common immigration court perception that this hardship standard is next to impossible to satisfy.

As background, prior to 1996 similar relief was known as “suspension of deportation”, and in addition to good moral character, only 7 years of residence need be proven. And the hardship prong was not quite as prohibitive, in that only “extreme” hardship need be proven, and that the qualifying hardship could be to a U.S. family member, or to the applicant himself. Perhaps concluding that this bar was too low, Congress sought to make it tougher for individuals in removal proceedings to gain the sympathies of the court and gain U.S. residence.

But, according to the BIA, in reversing the above decision, an applicant need not demonstrate that the hardships to her qualifying family members be “unconscionable” nor is the standard “so restrictive that only a handful of applicants, such as those with (family members having) a serious medical condition, will qualify for relief”. Reaching the conclusion that the above applicant’s U.S. citizen children would indeed face “extreme and unusual hardships” should she be deported, the BIA found the following factors pivotal:

  1. the applicant, a divorced mother, was the children’s sole means of support (she operated her own business), and the family’s stable home environment depended entirely on the applicant’s financial and emotional support,
  2. the applicant had no family left in Mexico, and presumably no one would be available to help the applicant care for her children should the children accompany her to Mexico (the applicant’s U.S. permanent resident mother was the children’s primary care provider while the applicant worked).
  3. dramatically lower standard of living in Mexico and the applicant would not have the opportunity to provide for her family in any way comparable to the present level of support,
  4. emotional ties of the children to the applicant’s extended family in the U.S. (all living legally in the U.S.) would be severed and,
  5. children did not speak Spanish.

While this decision does not constitute a revolutionary interpretation of the governing statute, it does appear to give immigration courts a bit more breathing room when it comes to considering the hardships to U.S. family members in deciding requests for “cancellation of removal” . For the full text of this decision (In Re Recinas, 23 I & N Dec. 467 (BIA 2002), Int. Dec. #3479) or other BIA precedent decisions visit the Executive Office for Immigration Review website, http://www.usdoj.gov/eoir/

Status of Cases Pending at INS Service Centers Now Available Online

If you have a petition or application pending before one of the INS’ 4 regional service centers, such as the Nebraska Service Center, you can now obtain case status information online, at. https://egov.uscis.gov/e-request/displayONPTForm.do. Filings most commonly submitted with these Services Centers include petitions for family members overseas as well as all employment based immigration filings. The information available is identical to the information one can obtain via the automated telephone service known as “INS Direct”. To speak with an INS officer at one of these service centers, one must still go through the hassle of overcoming the busy signals and getting through via telephone during business hours.

Copyright © 2002-2008, By Law Offices of Richard Hanus, Chicago, Illinois