“Hardship” Required to Win Relief From Deportation Depends on Type of Relief for Which Immigrant is

In two recent decisions, the Board of Immigration Appeals (BIA) defined the “hardship” that is required to avoid deportation through two different types of relief, Suspension of Deportation and Cancellation of Removal. In these cases, the Board firmly established that the type of relief for which an immigrant is eligible affects the level of hardship they must demonstrate in order to avoid deportation.

Suspension of Deportation vs. Cancellation of Removal

“Suspension of Deportation” was a form of relief from deportation that was once available to aliens who had been ordered deported. Congress eliminated this relief and replaced it with another type of relief, “Cancellation of Removal,” when it passed the sweeping Illegal Immigration and Immigrant Responsibility Act (IIRIRA) in September 1996. Cancellation of Removal limits the class of immigrants eligible for relief from deportation in various capacities, including increasing the required number of years of continuous physical presence to ten years.

A crucial factor that the BIA and Immigration Judges must consider in determining whether an alien deserves to win relief is “hardship.” Applicants for Suspension of Deportation relief needed to demonstrate that their deportation would result in “extreme hardship” to themselves, their U.S. citizen children, or other qualified relatives. However, applicants for the stricter relief of Cancellation of Removal must show that their U.S. citizen or lawful permanent resident (LPR) spouse, child, or parent, will experience “exceptional and extremely unusual hardship”; unlike the old Suspension relief, hardship to the alien does not count and cannot be considered under the 1996. Two recent BIA decisions discuss the circumstances that constitute the “hardship” required for relief from removal:

In Matter of Kao and Lin, 23 I&N Dec. 45 (BIA May 4, 2001), the BIA had to determine whether the aliens, natives and citizens of Taiwan, could demonstrate the “extreme hardship” required to avoid deportation. Fortunately for the aliens, they were ordered deported before the formal enactment of IIRIRA, so they were still able to apply for relief under Suspension of Deportation. Although the BIA found that the aliens themselves would not likely experience “extreme hardship” upon their return to Taiwan, the judges did find that the aliens’ U.S. citizen daughter, who did not speak or understand Chinese and was completely “integrated into the American lifestyle,” would suffer extreme hardship if her parents were deported and she had to live with them in Taiwan. Based on this finding that the daughter would suffer extreme hardship in acclimating to, in the BIA’s words, a “Chinese-only environment,” the BIA granted the aliens relief under Suspension of Deportation.

In another decision made by the BIA the same day, an alien seeking relief under Cancellation of Removal was not as fortunate. In Matter of Monreal, 23 I&N Dec. 56 (BIA May 4, 2001), the BIA determined that the alien, a native and citizen of Mexico, failed to demonstrate that his qualified relatives (U.S. citizen children and LPR parents) would experience “exceptional and extremely unusual hardship” upon his deportation.

As discussed earlier in this article, when Congress passed IIRIRA, it heightened the standard of the requisite “hardship” for relief from deportation when it replaced the former Suspension of Deportation with Cancellation of Removal. In Monreal, the BIA established that an alien’s own hardship in returning to their native country will not be considered, and that the “hardship” experienced by an applicant’s qualified relatives must be more unusual and severe than the level of hardship required prior to the 1996 law. Thus, the fact that Mr. Monreal had been in the U.S. for twenty years since he was fourteen (14) years old, and had three U.S. citizen children and LPR parents, did not persuade the BIA that the family’s hardship would differ substantially from the hardship normally expected from deportation. Based on this finding, the BIA denied Mr. Monreal’s application for relief under Cancellation of Removal.

As these two recent BIA decisions demonstrate, eligibility for relief from deportation has been become stricter in the past several years, and that the “exceptional and extremely unusual hardship” required for Cancellation of Removal may be a difficult threshold to meet. This type of defense requires a very experience and reputable immigration attorney.