Non-LPR Cancellation of Removal - Won on Appeal!
Non-LPR Cancellation of Removal - Won on Appeal!
Today’s blog is on a unique presentation of hardship in a Non-LPR Cancellation of Removal case that we litigated and won on appeal. The subject child is a talented soccer player who plays for Hartford Athletics on the youth team.
Before we dive into details, consider that Non-LPR Cancellation of Removal is limited to only 4,000 approvals nationwide per year, and that with 700 judges around the country, this is intended to be applied only for truly special circumstances of hardship.
Backdrop on Non-LPR Cancellation of Removal - an individual must be in removal (deportation) proceedings, and meet these requirements:
10 Years of Continuous Physical Presence
Good Moral Character
Exceptional and Extremely Unusual Hardship to a Qualifying Relative: You must have a Qualifying Relative U.S. Citizen or Resident child, spouse or parent and prove that the qualifying relative(s) would suffer hardship that is exceptional and extremely unusual.
Favorable Exercise of Discretion: The Judge will consider if you merit the exercise of discretion by balancing the positive and negative factors that you present.
Case Example, Application of the Law to the Facts:
Our husband-and-wife clients are from Ecuador, have been in the U.S. longer than 10 years, and have two qualifying relative U.S. Citizen children. Both children have excellent grades and speak some conversational Spanish at home, but do not read or write in Spanish and have never travelled to Ecuador. One child is a gifted soccer player who plays for the Hartford Athletics junior team. This is a professional league for young athletes that play against other professional youth teams across the country. Of 126 children who were invited to try out, only 16 were chosen. His parents would drive him to and from Hartford every day for practice, a four-hour daily commitment. Letters from coaches confirmed that the child was on a pre-professional track, and that his placement on the Hartford Athletics team would offer him unique opportunities to play soccer professionally after graduation from high school. This child also has severe food allergies and required an epi-pen to be with him at all times.
What is exceptional and extremely unusual hardship? This is the highest standard of hardship under the immigration law. Poverty, loss of opportunity and education and lower standard of living in the home country is not enough. Consider that if all applicants must have 10 years physical presence, good moral character and qualifying relatives in order to apply, the applicant who wins must show that their qualifying relative must have a very special circumstance of hardship that makes relocation or separation much harder for their qualifying relative as compared to others.
The factors that we identified and developed for the record as unique was his athletic opportunity being on the Hartford Athletics youth team, his allergies that required an epi-pen, his high scholastic achievements, age and school year, lack of Spanish language skills, and financial stability of his parents in the U.S. The Judge did not feel that the child would suffer exceptional and extremely unusual hardship if he had to relocate to Ecuador, and reasoned that the child could play soccer and achieve his goals in Ecuador. He denied the case, and both parents were ordered removed. On appeal, a panel of three Board members reviewed the hardship to the child, and determined that his unique athletic ability afforded him special opportunities and that relocation would cause him to lose those opportunities. Two out of three Judges found that the factors, when considered cumulatively, met the standard of hardship on appeal, and reversed and approved the case.
We must emphasize that the standard of exceptional and extremely unusual hardship generally involves severe medical and/or special education needs. However, this is an example of a unique case of exceptional ability and talent that, if presented effectively, can meet the rigorous standard. This was a close case, and our entire team at De Castro Foden celebrated this meaningful win for the child and family and hope to see him reach his goals as a professional soccer player in the future!
Written by: Mary De Castro Foden, April 13th, 2024
Juris Doctor, University of Connecticut. Admitted to the bars of Connecticut and New York, U.S. District Court of Connecticut, Second Circuit Court of Appeals, and the Supreme Court of the United States.