A new Board of Immigration Appeals decision, Matter of J-J-G, 27 I&N Dec. 808 (BIA 2020) has made it more difficult for foreign nationals to obtain Cancellation of Removal. Cancellation of Removal is a form of relief from deportation where the foreign national, even if he or she entered the United States without any papers, has been in the United States for 10 years or more, has had good moral character for 10 years, has not been convicted of certain crimes, warrants a favorable exercise of discretion, and finally, has a United States citizen or lawful permanent resident spouse, parent or child that would incur exceptional and extremely unusual hardship if the foreign national were deported. This form of relief is extremely valuable for many people who entered the United States a long time ago without papers. In fact, if the Immigration Judge grants the cancellation of removal, the foreign national will get a greencard. So, why did it just become more difficult to get Cancellation of Removal?
How do I get Cancellation of Removal?
Cancellation of removal is a form of relief from deportation only available in Immigration Court. That means that you can’t apply for it unless you are already in removal (deportation) proceedings. For many foreign nationals who have no options available to them to apply for affirmatively, cancellation of removal in immigration court can be a godsend. Once you are in Immigration Court, you would apply for Cancellation of Removal by submitting form EOIR-42B and applicable evidence. The Immigration Judge would schedule your case for an Individual Hearing, which would be like a bench trial before the judge where you would present witnesses and evidence. Lawful permanent residents would submit Form EOIR-42A and applicable evidence. Lawful permanent residents do not have to establish that their removal would result in Exceptional and extremely unusual hardship, so this blog and the J-J-G case applies only to nonpermanent residents.
What is exceptional and extremely unusual hardship?
One of the things you have to prove to the immigration judge is that you, the foreign national nonpermanent resident, have a United States Citizen or Lawful Permanent Resident spouse, child or parent who would incur exceptional or extremely unusual hardship if you were deported. This is a very high burden. It is not enough to show that your relative would incur hardship. After all, any spouse, child or parent of someone deported would incur some hardship from the loss of physical proximity from their immediate relative. It must be hardship that is exceptional or extremely unusual compared to others in the same situation. The hardship can arise either if the qualifying relative would move with your country of citizenship or if the qualifying relative stayed in the United States if you were deported. The hardship can arise from medical issues, financial issues, mental health issues, and more. The totality of the circumstances should be examined to determine if a combination of hardships rise to the level of exceptional and extremely unusual.
Why did Matter of J-J-G make it harder to get Cancellation of Removal?
In Matter of J-J-G, a Citizen of Guatemala who entered the United States without authorization was placed in deportation proceedings. He had five United States Citizen children ranging from the ages of 2 months to 12 years of age. He also had a Lawful Permanent Resident mother, whom he help support and lived with. One of his children had had hypothyroidism and required medication, another child had Anxiety Disorder and ADHD, and another child had behavioral issues that required past therapy. His mother had hypertension and relied, to some extent, on her son to support her. The Immigration Judge denied the Application for Cancellation of Removal and the Board of Immigration Appeals( BIA) affirmed. The BIA held that when an applicant claims exceptional and extremely unusual hardship on the basis of health of a qualifying relative, the applicant must prove that the qualifying family member has a serious medical condition and, if the qualifying relative will going to Applicant’s county of citizenship with the Applicant, that adequate medical care for the claimed condition is not reasonably available in that country.
What did we learn from J-J-G?
Matter of J-J-G is really about evidence, or lack thereof, as much as anything. The Immigration Judge and the BIA are going to want to see consistent evidence to support your assertions that the qualifying relative has a serious medical condition and that adequate medical care is not available in the county of your citizenship. Your lay testimony is not typically going to be sufficient. Medical records, letters, affidavits or testimony from medical doctors or experts, news articles and documents outlining the medical care in the country in question, and more corroborating evidence is needed to increase the probability of success in obtaining cancellation of removal based on a medical condition of the qualifying relative. Also, the Applicant and the Applicant’s wife gave conflicting stories about whether the children would accompany him to Guatemala and about the level and cost of healthcare in Guatemala. It is extremely important to make sure that the testimony and evidence submitted is consistent with the argument you are submitting. If the Applicant in J-J-G had submitted more evidence that was consistent with his argument, this decision may have been different.
Jeremy Lasnetski is a partner at the Law Offices of Shorstein, Lasnetski, & Gihon. The firm focuses on immigration, criminal defense and personal injury. Mr. Lasnetski focuses his practice on immigration and criminal defense and is the former Jacksonville Regional Vice Chair of the American Immigration Lawyer’s Association, Central Florida Chapter. He has represented clients in deportation proceedings, USCIS benefit cases, consular processing cases, and more. He routinely gives presentations on immigration law issues to both criminal and immigration lawyers at conferences and seminars throughout the State of Florida.