What Is “Exceptional & Extremely Unusual Hardship”?

 Posted on July 21, 2016 in Immigration

If you or someone you love winds up in immigration removal proceedings, there are only a few select ways where it might be possible to avoid that eventuality. One of those is called cancellation of removal. However, unless you are a lawful permanent resident (LPR, or a holder of a ‘green card’), cancellation can be extremely difficult to win. You must be able to prove that your removal would pose an ‘exceptional and extremely unusual hardship,’ which is an extremely high standard to meet.

How Will Your Removal Affect U.S. Citizen Family?

To be blunt, United States Citizenship & Immigration Services (USCIS) cares very little about the inconvenience to an undocumented or non-LPR immigrant. What is more relevant is the potential difficulty to any U.S. citizen family members you may have. For LPRs, the standard is to show that your removal would cause ‘extreme’ hardship to a U.S. citizen spouse or children. For non-LPRs, the standard is raised to “exceptional and extremely unusual.”

One applies for cancellation of removal when one is in proceedings before an immigration judge. In order to qualify, there are two requirements (other than the hardship showing) that you must meet if you are a non-LPR. You must have had a continuous physical presence in the U.S. for at least 10 years, and you must have been a person of good moral character during that time (in other words, you have not been convicted of a crime of moral turpitude or an aggravated felony). If you do not meet these requirements, your case may not even reach the question of hardship.

What Factors Are Considered?

It is critical to understand that as of this writing, the fact that an immigration judge will not consider the hardship to you, only to your U.S. citizen family, will almost always result in a somewhat narrow reading of the current law. There are factors that only affect non-citizens, after all, and to not consider them can result in critical issues being ignored. However, since Matter of Monreal (2001) clarified the standard, it has not been standard policy to take such questions into account.

Monreal dealt only with the potential hardships to the U.S. citizen family, and in that context, the issue of how extreme and how unique they might be. While LPRs only need to meet the standard of showing “extreme” hardship, non-LPRs must also show that their potential difficulties would be comparatively unique. The rationale is that if U.S. citizen family members go with their non-citizen spouse or parent to another country, there will almost always be financial hardship or cultural shock. More must be shown in order to keep the whole family in the country, or no one would be able to be deported.

An Immigration Attorney Can Help

Cancellation of removal can be a confusing process, and it is understandable to have many questions. If you need help navigating the procedure, the knowledgeable Chicagoland immigration attorneys at Mevorah & Giglio Law Offices may be able to assist. Contact us today at 630-932-9100 to set up an initial consultation.