Articles Posted in Deportation

Facing deportation is a tough, emotional experience. We write our deportation blog post with that in mind and also to encourage anyone who is facing deportation to contact a good deportation lawyer as soon as possible. A good deportation lawyer could mean the difference between you being deported or staying in the United States.

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.
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Anyone who has had a family member wrongfully deported knows that deportation usually has serious consequences not only for the person being deported but also for that person’s family and friends. Deportation is a harsh remedy in most cases. And with a change in the standard for deportation, due process rights of immigrants have taken a substantial set back. Today, we will discuss how the Illegal Immigration and Immigration Responsibility Act of 1996 (“IIRAIRA”) has significantly changed immigration law, with one substantial change.

Before the IIRAIRA, immigrants facing deportation could ask for a suspension of deportation. Suspension of deportation required an immigrant applicant to prove that being deported would result in extreme hardship to him or her (the person being deported). That meant that the focus of hardship was placed on the immigrant.

However, with the IIRAIRA reform, “suspension of deportation” changed to cancellation of deportation. The name change was not the only difference, though. IIRAIRA reform erased the requirement of showing merely “hardship” to the person facing deportation.

Now, a person facing deportation must show that (1) being deported will result in exceptional and extremely unusual hardship and that (2) being deported will result in exceptional and extremely unusual hardship to the deported person’s spouse, parent, or child. That means the focus was taken off of the hardship that the potentially deported person would suffer and placed on the hardship that, basically, family members would suffer.

Specifically the BIA has stated: “in establishing eligibility for cancellation of removal [new standard of hardship] only hardship to qualifying relatives, not the applicant [person being deported] himself or herself, may be considered, and hardship factors relating to the applicant may be considered only insofar as they might affect the hardship to the qualifying relative.”

Significantly, each of the terms, spouse, child, and parent also has a specific definition in the IIRAIRA. That means, and as we have discussed on this blog, the IIRAIRA may define spouse, child, and parent in a manner completely different than what you feel or think.

Regarding the new “hardship” standard, The Board of Immigration Appeals (“BIA”) clarified its understanding of the difference between showing “hardship” and showing “exceptional and extremely unusual hardship” in an appeal named Matter of Monreal.pdf. The BIA stated that the new standard for hardship (cancellation of removal) is higher than the old standard (suspension of removal). The BIA also said that although the new standard is higher (tougher) it is not unconscionable (outrageous).

Just because something in not unconscionable (outrageous) does not mean it’s fair. The new standard is even more reason why you need an effective attorney on your side. Although some of the law and approaches used by lawyers regarding the old standard for “hardship” still may apply, your attorney must understand the IIRAIRA, new law, and new approaches in order to effectively argue your case.
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What happens if you get wrongfully deported from the United States while you are the legal guardian of a child lawfully living in the United States? Today we are going to discuss a real life case and what the implications mean for you.

In the immigration case Macario Moreno-Morante v. Alberto R. Gonzales, a U.S. Court addressed the following question: Can a non-citizen grandparent (“Mr. Macario”) be considered a “qualifying relative” in order to be eligible to cancel his deportation (formally known as cancellation of removal), because the grandparent is the legal guardian/custodian of his grandchild (who is a United States citizen?)

The court addressed this question because the Bureau of Immigration Appeals (“BIA”) denied Mr. Macario’s application to cancel his deportation (formally known as an application for cancellation of removal): the BIA agreed with an Immigration Judge that Mr. Macario’s grandchild was not his child within the meaning of relevant deportation law. The BIA made that decision regardless of the fact that Mr. Macario was his grandchild’s legal guardian/custodian and was in the process of adopting his grandchild. Importantly, no one disputed the fact that for all purposes, Mr. Macario provided for his grandchild as if his grandchild were his own child.

First, let’s lay out the law that applies to this discussion: The law states: “to be eligible for cancellation of removal (deportation), a nonpermanent resident (Mr. Macario) must establish, amongst other things, that “removal would result in exceptional and extremely unusual hardship to the aliens spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence.” That means that Mr. Macario must show that his removal (deportation) would result in exceptional and extremely unusual hardship to his grandchild, who Mr. Macario has legal custody of.

However, the court never addressed whether or not deporting Mr. Macario would result in exceptional and extremely unusual hardship to his grandchild who he had legal guardianship of, because the court found that Mr. Macario was not a qualifying relative of the child to begin with.

The problem for the Court seemed to be that at the time of Mr. Macario challenged his deportation, he had not formally adopted his grandchild. So the Court stated that the obvious fact that the Mr. Macario acted as the child’s parent was not enough. Rather, Mr. Macario had to be the legal parent of the child. What does that mean? Simply put, being the legal guardian and custodian of a child is not enough to submit a successful application to cancel your deportation, even though it may be obvious that if you leave the country, the “child” will suffer.

In fairness, the Court recognized the harsh and unfair consequences of its ruling. However, the Court said it did not have the power to change what Congress intended; in order to qualify for hardship to be suffered by a child, that child must meet the detailed and clear definition of a child in accordance with immigration laws. The sad reality is that being a legal guardian/custodian is not enough to meet that definition.

Importantly, the Court also sent a clear message to Congress that Congress has the authority to undue the harsh reality of these types of situations, by reforming the definition of “child” found in immigration laws. To date, Congress, unfortunately, has done nothing.

Challenging deportation requires you to find a good lawyer because the process is long and can be tricky.
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