The law doesn't care about hardship to the foreign national. Instead, it focuses on hardship to family members (spouses and children) who are US citizens or green card holders. Essentially, assuming they meet the other requirements, they have to show that their removal from the United States would result in hardship to their spouse and/or children.
If it's LPR cancellation, the hardship to the family must be "extreme." And for non-LPR cancellation, it must be "exceptional and extremely unusual." What do these terms mean?
In short - it depends.
Part of a lawyer's job is to conduct a very thorough investigation into the personal lives of their client, to determine exactly how a foreign national's removal will impact a family. This is one of the hardest and most challenging things for a lawyer to do. Because every foreign national's family thinks that the hardship they would have to go through is extreme. (And, in the opinion of this lawyer, they're usually right.) But the law doesn't necessarily agree. These hardship standards can be very difficult to meet.
LPR cancellation's "extreme" hardship, despite the way it sounds, is actually more workable of a standard than non-LPR's "exceptional and extremely unusual" standard. Each form of hardship must involve the examination of many factors, not the least of which is family separation, particularly where there are young US citizen children involved. We have found it is useful (if not essentially a requirement) to have a psychiatric or psychological evaluation to determine, in medically objective terms, the effect of a family member's removal.
These standards date back to the original Immigration & Nationality Act of 1952. In Matter of Monreal, 23 I&N Dec. 56 (BIA 2001) the Board of Immigration Appeals first considered the application of the standard for "exceptional and extremely unusual hardship." It noted that in the original Act, Congress intended for suspension of deportation (the old term for cancellation of removal) only if it would be "unconscionable" to deport the person. According to the Board, this standard was meant to be very high indeed. Yet Board case law from 1952 onward shows that in practice, the standard was (comparatively) not that difficult to meet. In addition, it used to be relevant to show hardship to the foreign national in addition to the hardship to the family.
That all changed in 1996. With the passage of IIRAIRA, the old suspension of deportation form of relief was replaced by the new scheme of cancellation of removal, one for LPR's and another for non-LPR's. No longer would hardship to the foreign national be considered, no matter how extreme or exceptional it was. In Monreal, the Board attempted to define the meaning of "extreme" and "exceptional and extremely unusual."
And here's the main point: They are both difficult, high standards. Much higher than a mere showing of hardship. But not necessarily to show that it would be "unconscionable." For both types of removal, there is a focus on the raw level of hardship, and it has to be pretty extreme.
For non-LPR cancellation, however, there is another focus. That is the uniqueness of the hardship. The year after Monreal, the Board considered two more cases to further define what "exceptional and extremely unusual hardship" means. These two cases were Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) and Matter of Recinas, 23 I&N Dec. 467 (BIA 2002). The Board found that “the hardship standard is not so restrictive that only a handful of applicants, such as those who have a qualifying relative with a serious medical condition, will qualify for relief.” Recinas at 470. Recinas, which is the most recent of these three cases, noted further that any review of “exceptional and extremely unusual hardship” decisions from the Immigration Judges would start with a consideration of the factors in Monreal and Andazola.
So what types of factors were looked at in these three cases? Things like how foreign the culture would be to the US citizen children. Financial and emotional support. Family separation. Family support in the US versus in the country of removal. Educational opportunities for the children. Medical conditions. Whether the foreign national had any other form of relief available. Quite literally, almost anything could be considered, but these factors would definitely be looked at. Facts must be independently considered, and the hardship evaluated in the aggregate (per Matter of Ige, 20 I&N Dec. 880 (BIA 1994).
And once looked at, how would they be applied? In the non-LPR cancellation scenario, the court will ask not only how hard would it be, but how unusual is the hardship. In other words, removal almost always results in financial hardship. There is almost always some degree of cultural readjustment. There is almost always a loss of family support. So if that's all that's there, then even if the hardship is extreme, cancellation will likely not be granted because these hardships, while extreme, are not unusual.
Contrast that with the case of a single mother with, say, 6 children who don't speak the language of the removal country. Or where there's only one child but the child is autistic and there is no treatment for this condition in the country of removal. These types of hardship are not as run-of-the-mill. Caring for 6 children is not the same as caring for 1 or 2. Assuming other requirements are met, these scenarios are more likely to result in the grant of cancellation of removal.
These are tough cases. The burden is high, and the proof is very detailed. We hope that legislation might be passed to allow the court to consider the hardship to the foreign national, because applying legal blinders to this hardship necessarily means that the hardship analysis will be shortsighted and incomplete. If you are in removal proceedings, cancellation is one option that can work to save your life in the United States when there are no other options available.