Hardship Standards in Immigration Law

 Posted on April 12, 2018 in Immigration

Most immigrants who petition for a stay of deportation or removal will do so based on a law they believe helps their case. Sometimes, however, an undocumented person has to depend on what is called a cancellation of removal, which is essentially prosecutorial discretion, allowing him or her to stay in the U.S., though he or she technically lacks the right to remain. Among the requirements that must be demonstrated, the immigrant must show at least “exceptional” hardship to a U.S. citizen if he or she was to be deported. This standard has become all but impossible to meet.

The Requirements

In order to qualify for cancellation of removal under the Immigration & Nationality Act (INA), three requirements must be met. The alien must (1) not have been convicted of certain offenses and generally been a person of “good moral character” during his or her stay in the United States; (2) resided in the U.S. for at least 7 years (or been physically present for 10, if he or she seeks to adjust status); and (3) he or she must establish that his or her removal would result in “exceptional and extremely unusual hardship” to his or her U.S. citizen (or lawful permanent resident) spouse, parent, or child.

The standard for hardship that must be shown used to be lower, or at least described as lower, with only “exceptional” hardship being required in cases from more than two or three years past. However, increasing nativist sentiment and a rising backlog have contributed to the standard being made even more stringent than before. Case law has noted that the specific term “exceptional and extremely unusual” has not been defined under the law, meaning that the plain definition of the words should be used. However, this can lead to a lot of subjective rulings.

Not Easy to Succeed

As one might imagine, this is an extremely difficult standard to meet. Even if you are able to demonstrate the other criteria with solid evidence, judges have such wide discretion over the meaning of “hardship.” With many, only the most dire situations will merit cancellation, and this is only sometimes. Recently, news broke of a man from Arizona who was denied a stay of removal even though his pregnant wife and child battling cancer, both U.S. citizens, would lose the family’s sole breadwinner if he was deported.

If you are placed in this position, the most important thing for you to remember is that evidence is the only factor that may help you succeed. Appeals to emotion are unsuccessful, no matter how dire the case. It is also important to keep in mind that immigration authorities are only concerned with the hardship to documented qualifying relatives—if a child or spouse is undocumented, the judge will not take the severe trauma of separation into account when making their decision.

Call an Immigration Attorney

The system is difficult to succeed in, and it can feel like no one is there to help you. However, if you are able to get an attorney on your side, it can make a huge difference. The Chicago-area deportation defense lawyers at Mevorah & Giglio Law Offices are ready and willing to try and help you with your case. Call us today to set up a free consultation.