Today, I am going to discuss criteria # 4 of the new “hardship” standard established by the Ilegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which the U.S. Congress enacted in 1996. I discuss the other three criteria in separate blog posts.
After the U.S. Congress enacted the IIRIRA, a non-permanent resident must meet the following four (4) criteria in order to be eligible for cancellation of removal (deportation) under section 1229b(b)(1):
1. The non-permanent resident must have resided in the United States continuously for at least 10 years;
2. The non-permanent resident must be of good moral standing;
3. The non-permanent resident cannot have been convicted of certain, specific crimes; and
4. The non-permanent resident must be able to establish that removal (deportation) would result in “exceptional and extremely unusual hardship to the non permanent resident’s spouse, parent, or child who is a U.S. citizen or a legal permanent resident.
The above-mentioned criteria # 4 etablishes the “hardship” standard that a person must show in an attempt to cancel his or her deportation. The new hardship standard is more stringent than the old standard. In fact, one court has stated that the circumstances surrounding the showing of hardship must be compelling, because “Congress intended to require an alien to provide evidence of harm to his spouse, parent, or child sub-stantially beyond that which ordinarily would be ex-pected to result from the alien’s deportation.”
So what does compelling mean in the context of exceptional and extremely unusual hardship? Courts have made it clear that compelling in this context does not mean the sadness or depression experienced by your spouse, parent or child once you’re deported.
However, an immigration Judge and/or the Bureau of Immigration Appeals (“BIA”) will consider the age, health, and circumstances of your qualifying relative (spouse, parent, or child), when deciding whether or not you have shown compelling justification to cancel deportation. Relevantly, case law in this area has repeatedly demonstrated that the following factors will be considered:
1. The extent to which a lower standard of living or adverse country conditions in the country of return may affect a spouse, children, or parent(s);
2. If a person is deported and leaves children in the United States, would the deported person be able to work and support those children in the country of return;
3. Does the person who faces deportation have family or close relatives in the country of return;
4. Does the child or children of the person facing deportation speak the native language spoken in the county of return;
5. If the person facing deportation has children would those children be deprived of an opportunity to obtain an education in the country of return;
6. What are the assets of the person facing deportation. For example, does the potentially deported person have significant savings; own a home; or have a retirement fund. If yes, then the BIA may find that the person has the financial means to transition back to his or her country of origin without exceptional and extremely unusual hardship to his or her spouse, parent or child; and
7. Does the child, spouse, or parent of the person facing deportation have a serious medical condition, which cannot be treated adequately in the country of return.
Those are just a few considerations. Ultimately, each case will depend on its own facts and its own merits. That’s why you definitely need a good lawyer who understands deportation law to assist you, especially if you are a non-permanent resident.
Contact Williams Oinonen LLC. We can provide you with effective assistance regarding your deportation issues.