Non-LPR Cancellation Hardship Based on Adverse Childhood Experiences and the Convention on the Rights of Children

September 2, 2020

Dear Friends,

I’d like to share with you a draft of a new article that a former student and I wrote that is forthcoming in the Georgetown Immigration Law Journal.

I’m sure you all share the frustration that I have over the high bar that the BIA has established to satisfy the exceptional and extremely unusual hardship requirement for non-LPR cancellation as exemplified in cases like Matter of Monreal (and the outer limit case of Matter of Recinas).

As I explain in the article and outline in the abstract, I’m arguing (1) that using “Adverse Childhood Experiences” literature and how ACEs lead to permanent neurological effects on children who are separated from removed parents is something that the immigration court should be taking seriously, and (2) that the Convention on the Rights of Children has become customary international law, and that it requires that the “best interest of the child” must be determinative in cancellation cases.

You can download the entire article at this SSRN link.

Here is the abstract. I would be happy to speak with any of you further about these arguments.

Bill Ong Hing[1] and Lizzie Bird[2]

Abstract

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 concerns cancellation of removal for noncitizens who have U.S. citizen children. Along with strict border enforcement, the Trump administration has increased interior arrests at workplaces and homes. Often, the victims of interior arrests have U.S. citizen children. If the administration is successful in terminating the Deferred Action for Childhood Arrivals program (DACA) and Temporary Protected Status (TPS), more individuals will be applying for cancellation relief. For example, the estimated 200,000 TPS holders from El Salvador are parents to an estimated 192,000 citizen children. About 250,000 U.S. citizens are children of DACA recipients.

The application of cancellation of removal is critical for these individuals who face deportation, and thus, the “exceptional and extremely unusual hardship” requirement pertaining to citizen children is crucial. 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 two related new arguments. One is that 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 will have devastating long-term health, educational, and economic effects. The other argument is that 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 occur. Because the CRC is customary international law, and ambiguous statutes, such as 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.

[1] Professor of Law and Migration Studies, University of San Francisco.

[2] M.A. International Studies, University of San Francisco.