What is Exceptional and Extremely Unusual Hardship?

Jan 13, 2017 | Citizenship

As a Miami immigration lawyer, I have helped numerous non-permanent residents have their removal orders (deportation orders) cancelled, because immigration law allows cancellation of removal if they meet three general requirements.

What are the three requirements for an individual to be eligible for cancellation of removal?
1. Applicants must have maintained 10 years or more of physical presence in the United States.
2. Applicants must have no convictions for certain offenses that would make them inadmissible or removable under other sections of the act.
3. 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.

If you have any questions in regard to this, I would encourage you to speak with a Miami immigration lawyer.

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, it is more difficult 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. In Aguinaga, the BIA first noted that the statute itself does not define the terms “exceptional and extremely unusual hardship,” and relied on the legal axiom that interpretation of statutory language begins with the “plain meaning” of the words used.  In addition, the BIA identified a list of “factors” to be considered, including the ages, health and circumstances of qualifying relatives, such as elderly parents who are solely dependent on an applicant for financial support; a qualifying child with serious health problems or compelling needs in school; and a lower standard of living in the country of return.

If you have any questions in regard to this, you may want to speak with a Miami immigration lawyer.

I feel strongly that I meet all three of the conditions necessary for eligibility for cancellation of removal. Does this mean that the immigration judge will definitely grant my petition?
No. 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. If you have any questions in regard to this, you should consult with a Miami immigration attorney immediately.

How do I gather evidence of the impact of my 10 year presence?
Before doing anything, 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? Again, if you have any questions in regard to this, you may want to consider speaking with a Miami immigration lawyer.

Can I include evidence in my Application for Cancellation of Removal?
You can, and should if you want to put forward a compelling application. 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. If you have any questions in regard to your application for cancellation of removal, you may want to speak with a Miami immigration lawyer.

If you would like more information on cancellation of removal, deportation, removal orders, or exceptional and extremely unusual hardship, please contact Miami immigration lawyer The Law Office of Tatiane M. Silva, P.A., Esq. at (305) 895-2500 or visit our website at tmsilvalaw.com.