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BIA Defines Hardship Standard For Cancellation Of Removal
by Carl Shusterman

In a "News Flash" in the May issue of SHUSTERMAN'S IMMIGRATION UPDATE, he noted that the Board of Immigration Appeals (BIA) in Matter of Monreal defined the term "exceptional and extremely unusual hardship" for purposes of qualifying for cancellation of removal under the 1996 immigration law.

By way of background, the 1996 law substituted removal proceedings in place of deportation proceedings, and "cancellation of removal" for "suspension of deportation". Cancellation of removal is a means of relief from deportation for certain persons who can demonstrate a certain number of years of continuous physical presence in the U.S., good moral character, and hardship to qualifying family members. See

and scroll down to "Cancellation Of Removal For Non-Permanent Residents".

Among other things, the 1996 law increased the minimum period of continuous physical presence from seven to ten years, and imposed a "stop-time" rule that provides that any physical presence that accrues after the initiation of removal proceedings can not be considered in determining eligibility for cancellation of removal.

The 1996 law also increased the standards for demonstrating hardship, another requirement for establishing eligibility for cancellation of removal. No longer can the hardship to the person undergoing removal proceedings be considered, only the hardship to his U.S. citizen or permanent resident spouse, parents or children.

In addition, the standard was increased from "extreme hardship" to "exceptional and extremely unusual hardship". For almost five years, Immigration Judges, INS attorneys and private attorneys have all had to struggle with what constituted "exceptional and extremely unusual hardship." Now, the BIA in Matter of Monreal has attempted to define the standard.

Francisco Monreal entered the U.S. over 20 years ago in 1980 at the age of 14. (Note: Although BIA's decision does not state whether he entered the U.S. legally, the inference is that he did. Otherwise, he would have been eligible for legalization.) Since that time, he has never left the U.S. He is married, and has three children, all of whom are U.S. citizens, one of whom is an infant, and the others are 12 and 8 years of age. In addition, his parents are both lawful permanent residents of the U.S. Finally, 7 of Mr. Monreal's siblings are lawful permanent residents of the U.S.

Unfortunately, Mr. Monreal's wife, who was not eligible for cancellation of removal, "voluntarily departed" the U.S. for Mexico along with their infant child. This factor considerably weakened his hardship claim since the Immigration Judge, by ordering him to return to Mexico was reuniting him, rather than separating him, from his immediate family. Although the BIA's decision is unclear as to the reason why his wife departed the U.S., reading between the lines, it looks as though she left the U.S. not because she wished to return to Mexico, but because she was ordered to do so by either the INS or an Immigration Judge.

Mr. Monreal has been gainfully employed in the U.S. since the age of 14, and is the sole support of his two U.S. citizen children in this country, and probably of his wife and U.S. citizen infant in Mexico. The government did not dispute that Mr. Monreal meets the physical presence and good moral character requirements of the law. Nevertheless, the Immigration Judge denied his application for cancellation of removal for failure to meet the new heightened hardship requirements. The BIA upheld the Judge's decision, denied Mr. Monreal's application for cancellation of removal and ordered him to return to Mexico.

The BIA quoted from the legislative history of the 1996 law to find that "exceptional and extremely unusual hardship" means that a person undergoing removal proceedings must provide evidence of hardship to his qualifying spouse, parent or child which is "substantially beyond that which would be expected to result from the alien's deportation."

The BIA rejected the standard contained in the 1952 law that "exceptional and extremely unusual hardship" means that the effect of the deportation must be "unconscionable".

The decision reaffirms the continued validity of Matter of Anderson, 16 I&N Dec. 596 (BIA 1978) which lists factors to be considered in assessing a hardship claim. However, the BIA cautions that factors which relate only to the applicant cannot be considered, and that the other factors must be weighed against the higher standard of hardship contained in the 1996 law.

Finally, the BIA's decision lists a number of factors that must be considered in assessing whether a person's application for cancellation of removal meets the hardship standard:

For cancellation of removal, we consider the ages, health, and circumstances of qualifying lawful permanent resident and United States citizen relatives. For example, 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 applicant might have a qualifying child with very serious health issues, or compelling special needs in school. A lower standard of living or adverse country conditions in the country of return are factors to consider only insofar as they may affect a qualifying relative, but generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship. As with extreme hardship, all hardship factors should be considered in the aggregate when assessing exceptional and extremely unusual hardship…

To read the BIA's 23-page decision in Matter of Monreal (Interim Decision #3447, May 4, 2001), click on our Deportation Page at

scroll down to "Relief From Deportation" and click on "BIA Defines Exceptional and Extremely Unusual Hardship' for Purposes of Cancellation of Removal in Matter of Monreal..."

The decision in Matter of Monreal should be must reading for all members of Congress. Deporting Mr. Monreal, who is a model "citizen", to a country where he hasn't lived for over 20 years, effectively deporting his 12 and 8-year-old U.S. citizen children, and separating both he and his children from their grandparents, aunts, uncles and cousins strikes us as unduly harsh.

In our opinion, the law should be changed to restore the hardship standard to what it was prior to the 1996 law, to apply it to the applicant as well as to his family members, to repeal the "stop-time" rule and to reduce the physical presence requirement to 7 years. This is not only equitable, but places Mr. Monreal on an equal footing with NACARA applicants. U.S. immigration laws should not treat Mr. Monreal and his family less generously simply because he was born in Mexico rather than in Nicaragua, El Salvador or Poland. To the extent possible, immigration laws should treat all persons the same, not according to their country of birth. This is especially important in removal proceedings where a person's ability to remain in the U.S. with their U.S. citizen children, and permanent resident parents and siblings is at stake.

About The Author

Carl Shusterman is a certified Specialist in Immigration Law, State Bar of California
Former U.S. Immigration & Naturalization Service Attorney (1976-82)
Board of Governors, American Immigration Lawyers Association (1988-97)
Phone: (213) 623-4592 Fax: (213) 623-3720
Law Offices of Carl Shusterman, 624 So. Grand Ave., Suite 1608
Los Angeles, California 90017

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