Section 240A(b)(1) of the INA provides that the DHS may cancel the removal of an inadmissible or deportable alien who:
1. has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application;
2. has been a person of good moral character during such period;
3. has not been convicted of certain offenses under the INA; and
4. establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States States or a lawfully permanent resident ("green card" holder).
More often than not, a grant of cancellation of removal turns on whether or not the applicant met the “exceptional and extremely unusual hardship” to his or her USC or LPR spouse, parent, or child. This is the most challenging hurdle for applicants to prove. The Board of Immigration Appeals has issued three cases setting out the parameters of the requisite hardship: Matter of Monreal, Matter of Andazola, and Matter of Recinas. The applicants in each case were the parents of U.S. born children. Relief was denied in the first two but granted in the third. The cases underscore the fact specific nature of cancellation adjudications. The Board instructed that while “any hardship case ultimately succeeds or fails on its own merits and on the particular facts presented,” the standards set forth in Monreal and Andazola, “are the starting points for any analysis of exceptional and extremely unusual hardship.” In Matter of Monreal, the 34-year-old Mexican national was the father of three U.S. citizen children. The Board stated that the alien need not show that the hardship would be “unconscionable” and relevant considerations included the age, health, and circumstances of the qualifying family members, including showing of how a lower standard of living or adverse country conditions in the country of return might affect those relatives. The standard was not met where the Board found that applicant was in good health, the children were in good health and that the eldest, who was 12 years old, could speak, read, and write Spanish, and that the applicant would be able to work and support his U.S. citizen children in Mexico. Also upon his return to Mexico, the applicant would be reunited with family members, including his wife (the mother of their three children), who had already returned to Mexico with one of the children.
The Board has reiterated that the hardship must be “substantially” beyond the ordinary hardship that would be expected when a close family leaves this country. Factors that will be considered are the age, health, and circumstances of the qualifying relatives, including how a lower standard of living or adverse living conditions in the country of return might affect the relatives. A lower standard of living or adverse country condition in the home country in and of itself does not suffice. However, an applicant who has elderly parents in this country who are solely dependent upon him for support might well have a strong case. Another strong candidate might have a qualifying child with very serious health issues, or compelling special needs in school.