Hardship Standard for Cancellation of Removal
March 28, 2012
Despite the tremendous benefit in a successful cancellation case, the eligibility requirements are hard to meet, particularly the showing of hardship that the applicant must make, as demonstrated in a case decided by the 7th Circuit Court of Appeals on March 22, 2012.
In that case, a Mexican national was placed in removal proceedings 11 years after he entered the U.S. illegally in 1989. His application for cancellation was denied by the immigration judge on the ground that his removal would not result in “exceptional and extremely unusual hardship” to his U.S. citizen children.
At his cancellation hearing, he testified that, although his parents still lived in his hometown in Mexico, he and his family would be unable to stay with them because his parents lacked the resources to support them. He also said that his father, who had a business, would be unable to offer him a job.
He further testified that there were not enough housing and employment opportunities in his hometown, and that it was a place of violence and murder. He also argued that his two daughters, age 18 and 13, would need to reenter the Mexican education system where they would have difficulty taking classes in Spanish.
His 18-year old daughter testified and expressed concern about her college prospects in Mexico since it would be very expensive and the nearest university was quite distant from Morelos. She also said that her 13-year old sister cannot read or write in Spanish and would have a difficult time adjusting in Mexico after becoming acculturated in the U.S.
The respondent alien also argued that if his children remained in the United States, they would need to be supported by the income of their mother alone and the money that he had saved in the bank.
After the immigration judge denied his cancellation application, he unsuccessfully appealed to the Board of Immigration Appeals. Claiming due process violations, the alien filed a petition for review with the 7th Circuit which, however, denied his appeal.
Any alien who wants to consider applying for cancellation of removal should first seek competent counsel due to the stringent eligibility requirements and the possible risks involved in the application.
One must satisfy several requirements in order to be eligible for this relief. First, the alien must have been physically present in the United States continuously for at least 10 years immediately preceding the date of the application.
Second, he must be able to demonstrate good moral character for that entire 10-year period. Certain individuals are automatically disqualified from establishing good moral character, such as habitual drunkards, prostitutes, smugglers, and persons convicted of crimes of moral turpitude, multiple crimes or most drug crimes. Even if an individual is not disqualified, he must affirmatively show good moral character.
Third, he must not have been convicted of certain specified offenses. This is regardless of whether the conviction occurred in the 10-year period for good moral character.
Fourth, he must show that his removal would result in exceptional and extremely unusual hardship to his spouse, parent or child, who is a U.S. citizen or a lawful permanent resident. Some of the factors that may be considered are family separation, community ties, medical and health conditions, and conditions in the country of return.
Even if the alien is found to be eligible based on these requirements, it is up to the judge to determine whether he deserves cancellation of removal. Since it is a discretionary form of relief, there is definitely no guarantee that it will be granted.
Note that cancellation of removal is only available in removal proceedings. If an alien has not yet been served with a notice to appear by the Immigration and Customs Enforcement and he sees cancellation of removal as his last hope for a green card, he would have to present himself first to the immigration authorities before he can request cancellation from a judge.
But such a move is risky because the hardship standard is very high and, even if the alien meets the eligibility requirements, the judge in the exercise of his discretion can still deny the application. If the alien is unsuccessful in his request for cancellation, he would have to depart the United States.