For some immigrants who have lived in the United States for many years and are now facing removal proceedings, 42B Cancellation of Removal may provide a path to a green card. This form of relief is decided by an Immigration Judge and is available to certain people who are not already lawful permanent residents. If approved, the Immigration Judge cancels the person’s removal and the immigrant may become a lawful permanent resident of the United States.
To qualify for non-LPR Cancellation of Removal under INA § 240A(b), generally an applicant must show that they have been continuously physically present in the United States for at least 10 years, have been a person of good moral character during the required period, do not have certain disqualifying criminal convictions, and can demonstrate that their deportation would cause exceptional and extremely unusual hardship to a U.S. citizen or lawful permanent resident spouse, parent, or child. Even when these requirements are met, Cancellation of Removal is discretionary, meaning the Immigration Judge must ultimately decide that the applicant deserves the relief.
Having U.S. Citizen Children Is Not Enough
One of the most difficult parts of a Cancellation of Removal case is proving hardship.
Imagine, for example, that a mother or father facing deportation has two U.S. citizen children, ages 9 and 5. The fact that the children were born in the United States does not automatically protect the parent from deportation.
The law requires something significantly more serious than the ordinary sadness, financial difficulty, and disruption that almost every family experiences when a parent is removed. The hardship must be substantially beyond what would normally be expected when a parent is deported.
That does not mean the child must be facing a life-or-death situation. Immigration Judges are supposed to consider the family’s circumstances together. A case that appears weak when each hardship is considered separately can become substantially stronger when multiple serious hardship factors affect the same children.
What Types of Hardship to U.S. Citizen Children Can Strengthen a 42B Case?
For young children such as a 9-year-old and a 5-year-old, some important hardship factors may include:
Medical conditions. A child may have asthma, severe allergies, diabetes, epilepsy, heart problems, chronic medical conditions, developmental problems, or another condition requiring continuing treatment. The case becomes particularly important if the parent facing removal manages the child’s doctors, medication, insurance, appointments, or treatment.
Mental health and emotional problems. A child may suffer from anxiety, depression, separation anxiety, PTSD, behavioral problems, sleep disturbances, or other serious psychological consequences connected to losing a parent. A professional psychological evaluation can sometimes provide critical evidence demonstrating that the anticipated harm goes well beyond ordinary sadness caused by separation.
Special education needs. Children who receive an IEP, 504 Plan, speech therapy, occupational therapy, behavioral therapy, special education services, or accommodations for learning or developmental disabilities may face significant disruption if their parent is deported or they are forced to relocate abroad.
The young age of the children. A five-year-old may be particularly dependent on a parent for practically every aspect of daily life: meals, school, transportation, bedtime, medical care, emotional regulation, safety, and supervision. The younger the child, the more carefully the family should document exactly what role the parent plays every day.
The parent is the primary caregiver. If the immigrant parent handles most of the children’s medical appointments, school activities, homework, transportation, meals, childcare, finances, and emotional support, the court should understand what would actually happen if that parent suddenly disappeared from the household.
There is no realistic alternative caregiver. The other parent may be absent, uninvolved, abusive, unable to care for the children, working extensive hours, suffering from medical problems, or financially incapable of raising the children alone. Grandparents may be elderly or ill, and relatives may live far away or simply be unable to take custody of two young children.
Financial consequences that directly affect the children. Loss of income by itself generally will not satisfy the demanding hardship standard. But financial hardship can become important when it means that the children would lose their home, childcare, medical treatment, health insurance, therapy, educational services, transportation, or other necessities.
Loss of medical care or health insurance. If a child receives specialized medical care in the United States, the family should investigate whether comparable doctors, medication, therapy, and treatment would actually be accessible and affordable in the parent’s country of removal.
Educational disruption. A nine-year-old may already be well established in school. The child could have learning difficulties, special educational services, strong academic progress, relationships with teachers and counselors, or other needs that would be seriously disrupted by relocation.
Language barriers abroad. A U.S.-born child who speaks primarily English may struggle considerably if forced to enter a foreign school system conducted in another language. The issue can become more serious when the child cannot read or write the language of the parent’s home country.
Dangerous or unstable conditions in the parent’s home country. Depending on the country involved, evidence concerning war, violence, political instability, inadequate medical infrastructure, shortages, crime, or other serious conditions may be relevant. The key is explaining how those conditions would specifically affect these children rather than relying only on general country conditions.
No meaningful family support abroad. If the parent would return with two young American children but has no housing, relatives, employment, childcare, financial assistance, or family support in the destination country, those circumstances may contribute significantly to the overall hardship.
The children have never lived outside the United States. U.S.-born children may have no meaningful connection to the parent’s home country, no relationship with relatives there, no understanding of the country’s educational system, and little or no ability to function in its language or culture.
Prior trauma or instability. If a child has already experienced divorce, domestic violence, abandonment, death of a close relative, bullying, serious illness, or another traumatic event, another major disruption such as losing a parent may have much more serious psychological consequences than it would for another child.
The Court Should Consider Two Different Scenarios
A strong Cancellation of Removal case should usually address both possible outcomes.
First: What happens if the U.S. citizen children remain in America while their parent is deported?
Who will raise them? Who will pay the household expenses? Who will take them to school and medical appointments? How will they psychologically respond to separation from their mother or father? Will they have to move homes or schools? Will they lose medical care, therapy, childcare, or educational opportunities?
Second: What happens if the children leave the United States and accompany their parent abroad?
Where will they live? What school will they attend? Do they speak the language? Can they obtain necessary medical treatment? Is appropriate special education available? Is the area safe? Does the parent have employment or housing? Are there relatives who can help? What opportunities and services will the children lose by leaving the only country they have ever known?
The Immigration Judge needs to see the real-life consequences of both alternatives.
Evidence Can Make or Break the Case
A strong hardship case should not rely solely on the parent’s testimony that the children will suffer.
Depending on the circumstances, useful evidence may include medical records, psychological evaluations, pediatrician letters, therapy records, IEPs and 504 Plans, school records, teacher letters, report cards, evidence concerning the other parent’s involvement, childcare records, health insurance documentation, financial records, housing expenses, photographs, declarations from relatives and caregivers, and reliable evidence concerning medical care, schools, safety, and living conditions in the country of removal.
The goal is to show the Immigration Judge exactly why these particular children would suffer hardship substantially beyond the ordinary consequences of a parent’s deportation.
Facing Immigration Court? Speak With an Immigration Lawyer Before Giving Up
Cancellation of Removal cases are highly fact-specific, and the exceptional and extremely unusual hardship standard is intentionally difficult. However, families sometimes underestimate the strength of their cases because they do not realize how medical, psychological, educational, financial, caregiving, and country-condition hardships can work together.
If you have lived in the United States for 10 years or longer, are currently in removal proceedings, and have U.S. citizen or permanent resident children, parents, or a spouse, contact Shepelsky Law Group at Tel: (718)769-6352 or book your consultation directly at https://shepelskylaw.cliogrow.com/book to schedule an immigration consultation. Our immigration attorneys can evaluate whether you may qualify for 42B Cancellation of Removal, identify the strongest hardship factors in your family, and help build the evidence necessary to present your case before the Immigration Court.