In this continuation of the Instruction
Series on various forms of “Relief from Removal,” Immigration Attorney
Magdalena Cuprys, Esq. examines further in depth the Extreme Hardship Standard contained
within the Cancellation of Removal defense, including examples of evidence
which are useful in attempting to meet this heavy evidentiary burden.
The Exceptional and Extremely
Unusual hardship is often the most difficult requirement to prove for
individuals applying in Cancellation of Removal cases. It was originally born out of an old Deportation
Defense remedy known as Suspension of Deportation. This old standard was governed under the old
Section of the Immigration & Nationality Act (INA) – Section 244(a)(2)
which was required for Suspension of Deportation Applicants who had committed
certain crimes. The INA also has a stricter standard, “Exceptional and
Extremely Unusual Hardship.”
This stricter standard became
more widespread after Congress passed the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) in 1996. IIRIRA effectively replaced
Suspension of Deportation with “Cancellation of Removal for Certain
Nonpermanent Residents” (non-LPR cancellation) under INA § 240A(b). The Applicant must show that
Deportation/Removal will cause exceptional and extremely unusual hardship to a “Qualifying
Relative” of the Applicant.
One important difference,
however, was the application of this heightened hardship standard to all Cancellation
of Removal applicants, not just those who have committed certain crimes. In
addition to demanding a higher showing of hardship, non-LPR Cancellation also
narrowed whose hardship matters. An applicant for this form of relief must
establish that her removal would result in exceptional and extremely unusual
hardship to her U.S. citizen or LPR spouse, child(ren), or parent(s) who shall
remain in the USA after the Applicant’s Removal. Hardship to the applicant herself is technically
irrelevant.
To establish such extreme
hardship, an Applicant must demonstrate that Deportation/Removal from the USA would
result in a degree of hardship (damages) to such relative beyond that typically associated with Deportation/Removal. For example – the extreme hardship standard
requires more than the mere economic deprivation that might result to the
qualifying relative(s) after the individual’s Removal from the USA.
As there is not one exact concrete
definition of what exactly constitutes such extreme and unusual hardship, therefore
there is also not one single factor that is dispositive of extreme and unusual hardship
in and of itself. The Immigration Court
weighs the “totality of the evidence” in attempts at determining whether such
standard exists and has been met in each individual case.
However, the Immigration Courts
do specifically take into account the following factors:
1.
Age of the
Qualifying Relative(s) at time of Applicant’s potential Removal from the USA;
2.
Age, number and
immigration status of all children, as well as their ability to speak the
native language and ability to adjust to life in the home country if family
departs the US with the Applicant after removal;
3.
Medical
Conditions of Family and availability of suitable medical care/treatment in
Home Country;
4.
Relative’s ability to obtain gainful
employment in Home Country designated for removal;
5.
Relative’s length
of residence in USA;
6.
Financial Impact
of Applicant’s departure upon those qualifying relative’s remaining in
USA;
7.
The impact upon disruption of educational
opportunities in the USA for remaining relative(s);
8.
The psychological
impact of the Applicant’s Deportation/Removal upon relative;
9.
The Political and
Economic conditions in the country to which the qualifying relative would
return to with Applicant;
10. Family members
residing in as well as any other ties to the Home Country to which relative returned;
11. Contributions
and ties of relative to the community and US as a whole, including degree of
assimilation & integration within American society.
SAMPLE
EVIDENCE
Generally, such hardship
evidence can take the form of the following:
1.
Evidence of the
Bona Fides (legal proof) regarding documenting the existence of the qualifying family
relationship:
-
Such can take the
form of Birth certificates, marriage certificates, Petition Approvals, Letters
from friends, co-workers, neighbors, relatives, fellow church goers, etc. that personally
know of the meritorious relationship.
These must be provided in Affidavit/notarized format.
2.
For Applicant and
legal family members in the US:
Evidence
of Medical conditions of his/her qualifying relatives. Current letters from treating Physician(s) documenting
medical condition, severity of condition as well current treatment and
prognosis, hospital records;
3.
Issue relating to
Family Support:
These
can take the forms of: Financial,
Emotional, Psychological, etc.).
Psychological
evaluations relating to the relative(s) and the trauma/anxieties to them resulting
from the forced separation are valuable in demonstrating and proving such
hardships.
Also,
documentation supporting the financial burden that the qualifying relative will
bear personally if the Applicant is not allowed to stay in the US.
4.
For Applicant and
legal immediate family members in the US: Attestations of good moral character.
One
should obtain/provide statements & affidavits from those members of high
standing in the community who have known the Applicant and his/her relatives in
the USA. They should state their status in the USA, how and for how long they
have known the family members, and that they honest, reliable, trustworthy, and
other good qualities – to be used to demonstrate why he/she is an asset to the
U.S.A. and a benefit to their specific community.
5.
For qualifying
family members:
School
records of children, Report Cards, Awards, Statements from Teachers as to
performance in school and positive development, Certificates of Achievement, if
applicable.
6.
Evidence of
stable and reliable employment of the Applicant.
7.
Evidence of
physical presence in the US for 10 years. Include lease agreements, rental
agreements, affidavits, bills, employment contracts, paychecks, bank records,
licenses, receipts, letters, school and employment records.
Evidence
of tax payments, employment authorization cards (work permits), etc. Any document that would serve the purpose of
proving that applicant has continuously been physically present in the US are
mandatory.
8.
General evidence
as to Applicant’s contribution to the U.S. community.
Examples
are Reference Letters, any awards, degrees, diplomas, volunteer work, religious
participation, charitable contributions, certifications, etc. to demonstrate
what he/she has accomplished and what positive attributes he/she can bring to
the USA.
9. Copies of all Tax Returns submitted while
employed in the USA.
10.
Evidence of Rehabilitation: If any prior violations
– obtain all Court Records, Probation Reports, Counseling Programs attended,
certifications, etc.
Please be advised that this is
by no means an exhaustive list, and should in no way be relied upon exclusively
as such are only examples for informational purposes and cannot be substituted
for advice of Counsel. Specific documentation to be submitted in
such cases must only be considered after careful examination by competent Immigration
Counsel.
Once again, this list is not
exhaustive, as there may be other factors relevant to the issue of extreme
hardship in a particular case. The
factors listed above should not preclude the consideration of other factors
raised by the Applicant or their Counsel, nor is an Applicant required to show
that each of the aforementioned applies in the Applicant’s case in order to
establish extreme hardship.
Ultimately the “Extreme
Hardship Standard” must be evaluated on a case-by-case basis after a review of
all the particular circumstances in the case.
Please note that none of the factors listed alone, or taken together,
automatically establishes a claim of extreme hardship.
Conversely, an adjudicator is
not required to consider factors that have not been raised in making an extreme
hardship determination.
These
hardship cases are a Discretionary Determination demonstrating that a client
has met the requisite hardship standard is difficult not only because
“hardship” is not defined, but also because the hardship determination is a
discretionary one.
This
means that the adjudicator has a lot of freedom when deciding whether a
particular situation constitutes hardship. Moreover, discretionary decisions
are unreviewable by federal courts, meaning that the hardship determinations by
the Immigration Court and Board of Immigration Appeals (BIA) cannot be appealed
to the Federal Appellate Courts.
*** Magdalena Cuprys is the principal of Serving Immigrants,
a full-service immigration law firm offering a complete range of immigration
services to both businesses and individuals. The law firm is uniquely qualified
to manage the most contentious and unusual immigration needs. Swift resolution
of immigration-related issues is integral to a client’s ability to conduct
business or reach their personal goals in the United States. Located in Miami
and Clewiston, the firm’s offices provide corporate and individual clients of
foreign nationality with temporary work permits for the U.S., green card
petitions, criminal waivers and representation in removal proceedings cases.
With over a decade of experience, the law firm provides clients with the
confidence that their cases will be handled by an expert who understands their
needs and how to obtain their goals. Although the majority of the law firm’s
clients live in Florida, it represents people from all over the United States
and several foreign countries. References Law Firm Website: https://magdalenacupryslaw.com Other Website:
http://ww.servingimmigrants.com
Member for the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169
Lawyer Directory: https://www.lawyer.com/magdalena-ewa-cuprys.html
LinkedIn Profile: https://www.linkedin.com/in/magdalena-cuprys-265534a/
Martindale Attorney Directory: https://www.martindale.com/organization/magdalena-cuprys-2838433
Findlaw: https://pview.findlaw.com/view/4161404_1
Media News article “Broward Transitional Center: Immigrants With No Criminal
History Get Lengthy Stays At Little-Known Jail”, published at https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html
See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4
See also the news reports published at http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/
and https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility
Ms. Cuprys recently prevailed in a hotly contested asylum cases against the
U.S. Department of Homeland Security, see press release at https://www.einpresswire.com/article/452266255/immigration-attorney-magdalena-cuprys-prevails-against-u-s-department-of-homeland-security-in-disputed-asylum-claim?r=pavx1xxw1Nt_HxqPVv
and https://www.prlog.org/12714538-in-disputed-asylum-claim-florida-immigration-attorney-magdalena-cuprys-prevails-against-dhs.html
Attorney Profile: https://solomonlawguild.com/magdalena-e-cuprys%2C-esq
Attorney News: https://attorneygazette.com/magdalena-cuprys#4ccbee9f-eb68-44a7-b1df-f0b2366ba5fb
Magdalena Cuprys is the principal of Serving Immigrants, a full-service immigration law firm offering a complete range of immigration services to both businesses and individuals. The law firm is uniquely qualified to manage the most contentious and unusual immigration needs. Swift resolution of immigration-related issues is integral to a client’s ability to conduct business or reach their personal goals in the United States. Located in Miami and Clewiston, the firm’s offices provide corporate and individual clients of foreign nationality with temporary work permits for the U.S., green card petitions, criminal waivers and representation in removal proceedings cases. With over a decade of experience, the law firm provides clients with the confidence that their cases will be handled by an expert who understands their needs and how to obtain their goals. Although the majority of the law firm’s clients live in Florida, it represents people from all over the United States and several foreign countries. References Law Firm Website: www.servingimmigrants.com Member for the American Immigration Lawyers Association (AILA), see http://www.ailalawyer.com/english/AttorneyDetail.aspx?P=19738&A=40169 Lawyer Directory: https://www.lawyer.com/magdalena-ewa-cuprys.html LinkedIn Profile: https://www.linkedin.com/in/magdalena-cuprys-265534a/ Martindale Attorney Directory: https://www.martindale.com/organization/magdalena-cuprys-2838433 Findlaw: https://pview.findlaw.com/view/4161404_1 Media News article “Broward Transitional Center: Immigrants With No Criminal History Get Lengthy Stays At Little-Known Jail”, published at https://www.huffingtonpost.com/2013/01/06/broward-transitional-center-immigrants-detained_n_2417664.html See also http://articles.sun-sentinel.com/2013-01-05/news/fl-private-immigration-jail-20130105_1_illegal-immigrants-deutch-human-rights-abuses/4 See also the news reports published at http://www.jambonewspot.com/new/little-known-jail-where-immigrants-in-us-with-no-criminal-history-get-lengthy-stays/ and https://www.wptv.com/news/state/immigrants-with-no-criminal-history-get-lengthy-stays-at-private-south-florida-facility Ms. Cuprys recently prevailed in a hotly contested asylum cases against the U.S. Department of Homeland Security, see press release at https://www.einpresswire.com/article/452266255/immigration-attorney-magdalena-cuprys-prevails-against-u-s-department-of-homeland-security-in-disputed-asylum-claim?r=pavx1xxw1Nt_HxqPVv and https://www.prlog.org/12714538-in-disputed-asylum-claim-florida-immigration-attorney-magdalena-cuprys-prevails-against-dhs.html Attorney Profile: https://solomonlawguild.com/magdalena-e-cuprys%2C-esq Attorney News: https://attorneygazette.com/magdalena-cuprys#4ccbee9f-eb68-44a7-b1df-f0b2366ba5fb
