Undocumented noncitizens facing deportation who have resided in the United States for at least ten years often seek cancellation of removal—a form of relief that requires evidence that removal would result in “exceptional and extremely unusual hardship” to a citizen or lawful permanent resident spouse, parent, or child. This article examines cancellation of removal for noncitizens whose children are U.S. citizens. Along with strict border enforcement, the Trump administration has increased interior arrests at workplaces and homes. Often, victims of interior arrests have children who are U.S. citizens. If the Administration is successful in terminating the Deferred Action for Childhood Arrivals program (DACA) and Temporary Protected Status (TPS), more individuals will apply for cancellation relief. For example, the estimated 200,000 TPS holders from El Salvador are parents to an estimated 192,000 U.S. citizens. Additionally, about 250,000 U.S. citizens are children of DACA recipients.

The application for cancellation of removal is critical for these individuals who face deportation, and thus, it is imperative that parents in these situations satisfy the “exceptional and extremely unusual hardship” requirement as it pertains to their children. However, the Board of Immigration Appeals’ approach to the hardship requirement makes cancellation relief difficult to attain for the vast majority of applicants.

This article argues that the BIA approach to assessing the hardship requirement is ripe for reconsideration based on two related new arguments. First, neurologic/toxic stress factors faced by U.S. citizen children—particularly those who will be separated from a deported parent—should be sufficient to satisfy the exceptional and extremely unusual hardship requirement. Children exposed to repeated adverse childhood events (ACEs), including deportation of a parent, experience an escalation in levels of stress hormones that have devastating long-term health, educational, and economic effects. Second, the rights of children should be given particular consideration in the adjudication of cancellation of removal claims. To be consistent with international legal norms, in particular Article 3 of the United Nations Convention on the Rights of the Child (CRC), the duty to consider the “best interests” of the child in every decision that affects children must be fulfilled. Because the CRC is customary international law, and ambiguous statutes like the cancellation provision must be interpreted in a way that complies with international law, the hardship standard must be re-interpreted so that it incorporates a “best interests” assessment in parental deportation cases involving citizen children.

Continue Reading Curtailing the Deportation of Undocumented Parents in the Best Interest of the Child