This factor is arguably the most difficult requirement to prove for non-LPR cancellation of removal. Cases involving exceptional and extremely unusual hardship are tough to win and are analyzed by a stringent standard. We dissect this factor under a 2-prong approach: (1) who does the hardship apply to; and (2) what qualifies as exceptional and extremely unusual hardship?
Who does the hardship apply to?
To prove this requirement, it’s important to understand that the hardship of deportation must not be to you, but to a qualifying relative. A qualifying relative can be one of the following:
- A US citizen or LPR parent or step-parent
- A US citizen or LPR spouse from a bona fide marriage
- A US citizen or LPR child who is under 21 years of age and unmarried
If you are applying for non-LPR cancellation of removal and you do not have a qualifying relative, then you are not eligible for this form of relief. However, if you do have a hardship to a non-qualifying relative, discuss with your immigration lawyer on how you can frame that hardship directly or indirectly to a qualifying relative. Creating a strategy on how you frame the hardship may be critical to how you win your case.
What is exceptional and extremely unusual hardship?
When determining hardship for purposes of non-LPR cancellation of removal, in addition to applying case law, the court will analyze several factors of your case. The BIA has held that the standard of showing hardship must be substantially beyond the ordinary standard, meaning mere economic hardship will not constitute a sufficient showing. Common factors considered include the qualifying relative’s: age, health, length of US residence, lack of financial support resulting from removal, and circumstances in the home country, including language, the standard of living, and availability of education and medication.
For example, for hardship cases, immigration courts often refer to Matter of Recinas (BIA 2002). In Recinas, the BIA granted cancellation of removal to Recinas who met the burden of showing exceptional and extremely unusual hardship to her six children based on the heavy burden to provide sole financial/familial support for her children if deported, the lack of any family in her native country, her children’s unfamiliarity with the Spanish language, and the unavailability of an alternative means of immigrating to this country.