BIA Issues Decisions Interpreting Hardship Standards in Suspension and Cancellation Cases

IMMIGRATION LAW & POLICY

Removal Procedures and Defenses

BIA ISSUES DECISIONS INTERPRETING HARDSHIP STANDARDS IN SUSPENSION AND CANCELLATION CASES
Immigrants' Rights Update, Vol. 15, No. 4, June 29, 2001

In two decisions issued the same day in different cases, the Board of Immigration Appeals highlighted the differences between the types and degrees of hardship that applicants for suspension of deportation, on the one hand, and cancellation of removal, on the other, must show in order to be granted relief. In the first case, the BIA granted the respondents' application for suspension of deportation but, in the second, denied the respondent's appeal of the immigration judge's order denying cancellation of removal.

Prior to 1996, individuals who had been continuously physically present in the United States for seven years, had good moral character, and could show that they, or a parent, spouse, or child would experience extreme hardship if they were returned to their country of origin qualified for suspension of deportation. With the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress replaced suspension of deportation with a new form of relief called cancellation of removal. The requirements that an applicant must meet in order to qualify for cancellation of removal are more stringent than those for suspension of deportation. They include ten years of continuous physical presence in the U.S., good moral character, and a showing that the applicant's U.S. citizen or lawful permanent resident spouse, children, or parents would suffer "exceptional and extremely unusual hardship" if the applicant were returned to his or her country of origin. Thus, whereas prior law allowed applicants to make a case that they themselves would suffer hardship, the post-1996 law takes into account only hardship to the individual's qualifying relative.

The respondents in the suspension of deportation case were a Taiwanese husband and wife with almost 20 years of continuous residence in the U.S. and five U.S. citizen children. During the hearing before the IJ, the parents testified that if they returned to Taiwan their family's standard of living would decline and, because their children do not speak Chinese, the children's education would suffer. The IJ found that the respondents failed to show that their deportation would result in extreme hardship. Upon review, however, an en banc BIA majority held that uprooting the couple's oldest child, a 15-year-old girl, and requiring her to live in Taiwan would be a significant disruption that would constitute extreme hardship to her. For the BIA, this was enough; it deemed it unnecessary to review the hardship that deporting the parents would cause to the other children.

In the case of the respondent who was denied cancellation of removal, the BIA found that he had failed to show that his removal from the U.S. would cause exceptional and extremely unusual hardship to his three U.S. citizen children or his lawful permanent resident parents. The respondent is a 34-year-old Mexican national who had resided continuously in the U.S. since the age of 14.

The BIA's analysis notes that, in the context of eligibility for relief from deportation, the phrase "exceptional and extremely unusual hardship" first appeared in the Immigration and Nationality Act of 1952, as a standard for applicants for suspension of deportation. The legislative history of the 1952 provision shows that, at the time, Congress intended that the standard for qualifying for relief be very high. According to the BIA's decision, the House Report for the 1952 legislation indicates that suspension of deportation under this standard "should be available only in the very limited category of cases in which the deportation of the alien would be unconscionable." However, the BIA declined to adopt an "unconscionable" standard, finding that the nearly fifty-year-old legislative history of a statutory provision arising in a different context provides little guidance for interpreting the cancellation of removal statute. In 1962, the suspension statute was amended to require only "extreme hardship," while the "exceptional and extremely unusual" standard was retained for applicants for suspension who were deportable because of criminal convictions or other misconduct. The BIA found little guidance from prior case law interpreting the meaning of the phrase "exceptional and extremely unusual," since these cases often depended on the hardship to the respondent, which is not a factor in the context of cancellation of removal. The BIA concluded that this language requires a showing of hardship beyond what has historically been required in suspension of deportation cases. The BIA held that the hardship shown must be substantially beyond the ordinary hardship that would be expected when a close family member is forced to leave the U.S. and goes to live in his or her country of origin.

The BIA reviewed the factors to be considered in cancellation of removal cases. Among the factors that may be weighed are the age, health, and other circumstances of the respondent's U.S. citizen and lawful permanent resident spouse, children, and parents. The possibility that the respondent's standard of living will be lowered or that there are other adverse conditions in his or her country of origin are factors that may be considered only insofar as they may affect a U.S. citizen or LPR family member. Generally, however, the presence of factors such as these is insufficient in itself to support a finding that the relevant U.S. citizen or LPR family members face exceptional and extremely unusual hardship should the respondent be removed. However, the BIA's decision suggests that a respondent whose child is a U.S. citizen or LPR with serious health problems might have a strong cancellation of removal case, as might a respondent with elderly U.S. citizen or LPR parents who are heavily dependent on the respondent.

Describing this case as a good example of the difference between the standards for suspension and cancellation, the BIA found that the respondent's removal to Mexico after 20 years' residence in the U.S., from the age of 14, would result in hardships and fewer opportunities for his U.S. citizen children, but that he nevertheless failed to show that they would face the level of hardship that would qualify him for cancellation. The BIA found that, because the respondent's U.S. citizen children can speak, read, and write both Spanish and English, they are likely to be able to adjust to life in Mexico. It found nothing out of the ordinary in the case that would justify a grant of cancellation of removal.

In re Francisco Javier Monreal, 23 I. & N. Dec. 56 (BIA 2001) (cancellation); In re Bing Chih Kao, In re Mei Tsui Lin, 23 I. & N. Dec. 45 (BIA 2001) (suspension).