Syncing Law With Psychology Redefining Cancellation of Removal Hardship

• Publication year: 2021

Eva Marie Loney^*

Abstract: This paper advocates for a reconceptualization of cancellation of removal hardship to recognize the adverse psychological consequences of a parent's removal on a child. This paper details recent advancements in child psychology and argues how these findings may actually work to prejudice a case under the current standard. As such, this paper reimagines the standard in order to integrate the new research and ultimately better protect family unity in the context of immigration law.

Introduction

Immediately upon assuming office, the Trump administration made an anti-immigrant agenda an immediate priority.¹ Besides a litany of executive orders, agency policy changes, and a politization of the courts, President Trump frequently used rhetoric designed to rouse anti-immigrant sentiment, speaking during his rallies of "killers," "aliens," and "predators," and referring to an "invasion" of immigrants.² While acknowledging that there are many diverse realities for noncitizens living in the United States, the following story of a hypothetical family demonstrates the injustices that this paper highlights, injustices that the Trump administration sought to further entrench.

David Gómez and his wife, Fernanda, entered the United States without authorization from their home country of Mexico in the early 2000s. They settled in rural Yolo County, California, where extended family awaited their arrival. They began to work in agriculture. When their two daughters Ana and Rosa were born, Fernanda decided to stay home to take care of them. David continued working, found steady employment on a farm, and was promoted into a managerial position. He purchased a mobile home and provides his family a safe and supportive environment.

David was placed in removal proceedings because of a series of unpaid traffic violations. Specifically, he had been pulled over several times on the way to work and cited for driving without a license.³ On one such occasion, after detaining David for almost two weeks, local law enforcement released him into the custody of ICE.⁴

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Surely David's story is not the story that the Trump administration sought to highlight when aiming to inflame emotions around the presence of undocumented immigrants in the United States. Nevertheless, The Trump administration prioritized deportation of all undocumented immigrants, even those in David's shoes.⁵ Although the Trump administration is behind us, immigration courts have amassed a current backlog of 1.2 million cases.⁶ And while President Biden has ordered a 100-day halt of removals and reconsideration of removal priorities, absent congressional overhaul of immigration law, the removal of undocumented individuals will continue in the future.⁷

This paper seeks to shed light on the legal standard in cancellation of removal, a form of relief from removal for individuals like David, who have long called the United States their home, have no serious criminal record, and have a spouse or child who are permanent residents or U.S. citizens ("qualifying family member").⁸ Specifically, David must prove to the immigration judge that his removal would cause his qualifying family member to suffer "exceptional and extremely unusual hardship."⁹

This paper takes issue with the level of "hardship" applicants like David must prove. It demonstrates how statutory ambiguity has led to the creation of a hardship standard that is nearly impossible to meet.¹⁰ The field of child psychology has greatly advanced since the Board of Immigration Appeals (BIA) first drew parameters around the "hardship" standard in 2001.¹¹ By drawing on emergent but robust findings showing the adverse effects of parental removal on children, this paper seeks to highlight the disjuncture between the BIA's definition of hardship and common understanding from the field of psychology. By demonstrating the tension between psychology and the law, this paper ultimately advocates for a reconceptualization of the "hardship" standard. The solution proposes that "best interests of the child" becomes the main inquiry when assessing hardship, eliminating the comparative nature of the assessment. These changes will bring the standard into conformity with international consensus, well-established tenets of family law, and the constitutionally protected right to family.

The paper proceeds as follows. The next section provides an overview of the cancellation of removal standard to highlight the intent behind the restrictive hardship requirement. Then the paper describes evolutions in the field of psychology as relating to psychological effects of parental removal on children. The paper also describes how the psychological findings can actually undermine, rather than advance, an argument in support of meeting the current hardship standard. The paper then advances a reconceptualization of the standard that would integrate the advances in psychology and better reflect current sensibility around the impact of parental removal on children. The next section provides a counterargument against the solution and then defends the solution on the basis of legislative intent and agency authority to redefine policy in light of new factual findings. Finally, the paper proposes a legislative solution. A conclusion follows.

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Cancellation of Removal Hardship

This part of the paper aims to provide historical context for the current hardship standard to emphasize the legislative intent behind the standard's rigor. It then provides a road map of the modern-day interpretation of the standard by describing the seminal cases that developed the standard. Lastly, it highlights the BIA's flimsy and often paradoxical consideration of the psychological effect of parental removal on children in assessing hardship.

"Extreme Hardship" Under Suspension of Deportation

Prior to 1997, undocumented immigrants in removal proceedings who sought to remain in the United States could apply for a form of relief called "suspension of deportation."¹² Congress created this form of relief in the 1952 McCarran-Walter Act.¹³ Suspension of deportation required the applicant's showing of "good moral character" and seven years of continuous presence in the United States.¹⁴ The original act also required the applicant to establish that his deportation would result in "exceptional and extremely unusual hardship to the alien or his spouse, parent, or child who is a citizen or alien lawfully admitted for permanent residence."¹⁵ Congress established that the remedy "should be available only in the very limited category of cases in which the deportation of [an] alien would be unconscionable."¹⁶ The illusion to unconscionability illustrated intent to disincentivize opportunistic immigrants from entering without authorization and then simply claiming economic hardship to gain lawful permanent residence.¹⁷ However, the stringent hardship standard was widely criticized by opponents once it went into effect.¹⁸

In a 1962 amendment, Congress changed the wording of the standard from "exceptional and extremely unusual hardship" to "extreme hardship."¹⁹ This change communicated Congress's intent to depart from the unduly stringent standard of the 1952 standard.²⁰ Consequently, the BIA interpreted the standard as requiring a lower threshold of evidence, though struggled to create concrete parameters to define it.²¹ The most extensive evaluation of the hardship standard did not occur until 40 years after the 1962 amendment in the seminal case Matter of O—J—O—.²² In granting the respondent's suspension of deportation claim, the BIA framed him as a model citizen, praising his ability to sustain employment and help his community, and emphasizing how well he had assimilated into U.S. culture.²³ The concurring and dissenting opinions of the Board decision highlighted the members' disparate understandings of the hardship standard.²⁴ The dissent argued that a deportable person's departure from "ordinary community ties . . . [and] assimilation into American culture" could not rise to an "extreme" level.²⁵

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Congress met the decision with harsh criticism.²⁶ Only a year after the decision, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, overhauling the "suspension of deportation" remedy with new language and a heightened hardship standard.²⁷

"Exceptional and Extremely Unusual Hardship" Under Cancellation of Removal

Dismayed by the Board's lax interpretation of the suspension of deportation requirements in Matter of O—J—O-, Congress sought to restrict the class of eligible applicants by replacing "suspension of deportation" with "cancellation of removal."²⁸ Procedurally, the remedies are nearly identical, resulting in attainment of lawful permanent resident status upon the immigration judge's positive finding.²⁹ However, cancellation of removal for nonpermanent residents restricts the class of eligible applicants in several ways. First, it requires ten years of continuous physical presence, as opposed to seven.³⁰ Furthermore, cancellation of removal does not consider hardship to the applicant herself, but only to her U.S. citizen or lawful permanent resident spouse or child.³¹ Lastly, rather than "extreme" hardship, the applicant must show the qualifying relative would suffer "exceptional and extremely unusual hardship" if the applicant is removed from the United States.³²

The statute does not define "exceptional and extremely unusual hardship."³³ And despite its nearly 25 years of application, scant case law has developed it. To date, the BIA has published few cases interpreting its meaning.³⁴ The cases provide no more than a framework of considerations, highlighting the fact that the hardship determination is a fact-intensive inquiry made on a case-by-case basis.³⁵ In 2020, the BIA attempted to narrow the hardship standard in the context of cases based on medical hardship, holding that an applicant must establish...