Does a Child Whose Parent Might Be Deported Experience Less Hardship Upon Turning 21?

Length of rope almost broken

A widely misunderstood portion of U.S. immigration law called “cancellation of removal” allows an immigration court judge to grant a green card to (instead of ordering deportation for) someone with no status in the U.S. who:

  • has been living in the U.S. continuously for at least ten years
  • has been a person of good moral character all that time
  • has not been convicted of any of various criminal offenses, and
  • who demonstrates to the satisfaction of the court that his or her removal would cause exceptional and extremely unusual hardship to the person’s spouse, parent, or child who is a citizen or lawful permanent resident of the U.S.

This is not an “amnesty.” Nor is it a remedy that immigrants can proactively apply for. It is simply a last-ditch defense for someone who finds him- or herself in removal proceedings, and whose U.S. citizen or green-card holding relatives would suffer greatly if he or she were removed from the United States.

Of course, anyone whose family member is about to be deported is (assuming their last argument wasn’t a doozy) likely to suffer emotionally. But the law requires more: It demands a showing of “exceptional and extremely unusual hardship,” which is a significant step up.

The classic example—and the first thing a lawyer representing someone with a potential case for cancellation of removal asks about—is when the U.S. citizen or green card holder has medical problems and relies on the soon-to-be-deported spouse or parent for some form of support.

Let’s say, for instance, that the U.S. citizen child is developmentally delayed, and requires help from the non-citizen parent with daily life tasks and basic coping. That might be grounds for cancellation . . . for as long as the child remains a child. Just how long is that? According to U.S. immigration law, childhood ends at age 21. One might query whether the hardship just disappears at age 21, but the law is written quite clearly, and can’t be changed except by the U.S. Congress.

Any possible unfairness will, however, be compounded by current long delays in the immigration courts. Due to understaffing and the added burden placed by the Central American migration crisis, many cases wait years before they’re heard by an immigration court judge. The odds that a child will turn 21 during this time are higher than ever, leading to a lot of unhappy birthdays.

This has led lawyers to attempt to argue that the child’s age should be considered as of the date the application for removal is submitted, rather than the date the judge makes a decision. Such an argument was, however, recently shot down by the federal Ninth Circuit court, in the case of Mendez-Garcia v. Lynch, 10/20/16.) The court upheld a decision by the Board of Immigration Appeals (B.I.A.), which said in essence that the application for removal is a “continuing” one, in which any new facts relevant to hardship (such as the birth of a child) must be taken into account—so that a child turning 21 cannot be ignored.

The facts of the Mendez-Garcia case actually weren’t very sympathetic. Mr. Mendez Garcia had some criminal activity on his record, and hadn’t done much to ensure that his case got through the immigration court system quickly. Immigrant advocates are no doubt wishing that the court had a more sympathetic case before it.

Until such a case comes along and provides cause for a rethinking of the Ninth Circuit court’s interpretation, however, anyone pursuing a case for cancellation of removal and relying on a U.S. teenager as a basis for a hardship finding would do best to talk to a lawyer right away. The lawyer might be able to request expedited hearings and avoid the problem altogether.