Eva Loney wrote an article for the Spring 2021 edition of the AILA Law Journal entitled Syncing Law with Psychology: Redefining Cancellation of Removal Hardship. In this blog post she reflects on the topic and why the harm done psychologically to children when a parent is removed has been ignored for too long.
“Hardship” is a word that peppers immigration law. Applicants for certain forms of relief from removal and applicants for certain waivers of inadmissibility must prove that their removal would cause hardship to either themselves or a qualifying relative, depending on the relief they are pursuing. Proving hardship is difficult because it is a discretionary decision made by an adjudicator, and largely undefined.
And then there is: “exceptional and extremely unusual hardship.” This is the hardship that a noncitizen applying for non-LPR cancelation of removal must prove would occur to their “qualifying family member” (US citizen or permanent resident spouse or child) upon the applicant’s removal from the United States. As a student advocate preparing my first cancelation of removal case, I grappled with how a legal standard could be defined by an immigration judge’s interpretation of nebulous adjectives. How could familial separation be conditioned on a single individual’s interpretation of words like “exceptional” and “extremely unusual?”
I dug in to try to understand what “exceptional and extremely unusual hardship” meant. Over 20 years ago, the BIA gave us some clues — kind of. We know that it is “less than ‘unconscionable’” (Matter of Monreal) and that a case where the applicant was the sole financial provider, lacked family in her home country, and didn’t speak her home country’s language barely made the cut for a finding of hardship to her children. (Matter of Recinas). In 2020, the BIA reminded us that the standard is a “cumulative consideration” of relevant factors and gave us some guidelines for situations in which hardship is based specifically on the health of a qualifying family member.
In the 20-plus years since the BIA handed down those seminal decisions on hardship, advancements in child psychology have delivered some unsurprising conclusions about the consequences of a parent’s removal on a child. In sum, parental removal is correlated with severe and irreversible harm to a child’s health, even when the child is otherwise healthy. These findings, supported by science, are at total odds with the “exceptional and extremely unusual hardship” standard, which is a comparative inquiry (pitting families similarly situated against each other), in which the absence of negative conditions works against the applicant (if the child is currently healthy, then no hardship).
My recent article in the AILA Law Journal is really intended to tease out tensions between psychology and the legal standard as it is today, aiming to provide helpful context to both practitioners and policy advocates.
The article has several objectives. On the micro level, and in the absence of policy change, it suggests how a practitioner could work with a psychologist to meet the current hardship standard for their client.
With an eye towards policy reform, I hope that the psychological findings I have highlighted, as well as the analysis of the clear tension between those findings and the current standard, continue to gain attention among immigration policy advocates. Ultimately, I hope that Congress recognizes the importance of doing away with the current standard in favor of an inquiry that better promotes the value of family unity, such as “best interests of the child.”
AILA members and others who wish to learn more about this issue may find the upcoming seminar of interest: Litigating Hardship-Based Relief: Effective Motion Practice and Evidence Tips