The Board of Immigration Appeals

Jersey City, New Jersey – On March 31, 2020, the Board of Immigration Appeals (“The Board” or “the BIA”) decided Matter of J-J-G holding that when evaluating the exceptional and extremely unusual hardship element of cancellation of removal, an applicant seeking to establish the hardship based on a qualifying relative’s medical condition who is accompanying the relative to the country of removal must establish that adequate medical care for the condition is not reasonably available in the foreign country.

The evidence at the hearing established the respondent, JJG, was from Guatemala, had five US citizen children and a lawful permanent resident mother, the children would remain in the United States, but the respondent’s wife would accompany him to Guatemala. The respondent’s eight-year-old daughter suffered from hypothyroidism requiring medication that was covered by State benefits in the United States. In Guatemala, the mother testified the medication cost $1,100 and they would not be able to afford it, but also that she had previously received free medical care in Guatemala and she believed such care was still available. Two of the respondent’s other children had attended counseling previously, but were no longer attending counseling and did not require medication. The respondent’s mother suffered from hypertension, received social security, was able to attend medical appointments on her own, rented a room in her house and had other children who could help her in the respondent’s absence.

It is a respondent’s burden to establish the medical condition and its severity, as well as whether treatment is available in the foreign country. These elements are facts to be evaluated by the judge.

Here, the judge determined the hypothyroidism is possibly a serious medical condition, but the mother’s testimony as to the cost in Guatemala was not corroborated by reliable evidence and the child could continue to receive treatment in the United States after the respondent was removed. The judge also held there was insufficient evidence to conclude that treatment for hypothyroidism in Guatemala was not reasonably available or adequate, and the Board agreed. Regarding the mother’s hypertension, the judge found she could continue to receive treatment after the respondent’s removal. The respondent also argued financial hardships that he could not support his children from Guatemala, but the court and the BIA minimized the significance of these burdens because they are so common in in these situations. Lastly, the judge and the Board concluded that the cumulative impact of these conditions were not substantially different or beyond the normal hardships respondents and their families suffer from removal.

Certainly, the outcome here is sad, but it is not unexpected or unusual. The hardship standard for cancellation of removal is extremely difficult to satisfy. When pursuing cancellation of removal (or any other relief) in removal proceedings, it is essential to submit reliable evidence of every fact and assertion that supports the claim. In this case, the respondent failed to corroborate the country conditions and the facts to the requisite level. Researching, gathering and clearly identifying all the supporting evidence is often the difference between success and failure, which is why it is essential to involve an experienced and skilled attorney as early as possible. If you or someone you know is facing removal proceedings, contact the Jersey City immigration lawyers at the Law Office of Eric M. Mark.