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Proving Hardship if You Are Not a Resident

Most of your testimony and evidence will involve proving extreme and unusual hardship to certain family members if you are deported.

The Judge can only consider the hardship to certain of your relatives. If you have married children, grandparents, or siblings who are US Citizens or Lawful Permanent Residents any hardship to them will not be considered. Also, any hardship you would suffer is not considered. 

However, we can often get around this by convincing the judge to consider hardship to your non-qualifying relatives because of its effect upon qualifying relatives. The best approach is to frame that hardship to a non-qualifying relative as a hardship to a qualifying relative.

If you only show hardship to your qualifying relative you will not get Cancellation of Removal. In fact, even if you show unusual hardship to that relative you will not get Cancellation of Removal. What the law requires is a strict and difficult burden. A hardship that is “substantially” beyond the ordinary hardship that would be expected when a close family While the Immigration and Nationality Act does not list factors the court should look at the Board of Immigration Appeals ( BIA) has rendered decisions listing such factors. The main things the judge will look at is your qualifying relatives: 

  1. age 
  2. health 
  3. special needs in school 
  4. length of residence in the United States
  5. family and community ties in the United States 
  6. family and community ties in their home country 
  7. circumstances in their home country, (this usually includes, the standard of living, way of life, languages that are spoken, work opportunities, etc)
  8. The judge will also examine if there are any possible alternative methods for you to immigrate to the U.S. 

The Immigration Judge is required to look at all these factors under a “totality of circumstances” approach in order to determine if your qualifying relatives would suffer exceptional and extremely unusual hardship if you were deported.

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