New More-Stringent Requirements in “Cancellation of Removal” Cases Involving Medical Hardship; Could Set Precedent for Other Hardship Cases

On March 31, the Board of Immigration Appeals (BIA), the appellate level administrative court for immigration matters, held in a cancellation of removal case (a remedy available to LPRs who are in deportation proceedings) that, to the extent that a claim is based on the health of a qualifying relative, an applicant needs to establish that the relative has a (1) serious medical condition, and (2) if he or she is accompanying the applicant to the country of removal, that adequate medical care for the claimed condition is not reasonably available in that country.

While the Board’s decision involved a cancellation of removal case, it could set a precedent for other immigration applications that require proving hardship to a qualifying relative. For instance, unlawful presence, fraud, some two-year foreign residency, and some criminal inadmissibility waivers require that a foreign national prove hardship to a qualifying relative. It is important to note that while the standard of hardship in inadmissibility waivers is lower than that of cancellation of removal, these types of applications involve consideration of the same factors, including medical hardship.

The Board has long held that the health of the qualifying relatives is a relevant factor to the hardship analysis. This recent decision specifies that showing that a qualifying relative suffers from health complications is insufficient. Applicants have the burden of showing that the medical condition suffered by the qualifying relative is both serious and that medical care is not reasonably available in the country of removal.

In its decision, the BIA did not define a “serious” medical condition. Rather, it held that applicants must provide persuasive evidence that “refers to specific facts” in order to meet their burden. The decision acknowledges that applicants lack medical expertise and would need to submit reliable corroborating evidence to prove the medical condition was serious.

Likewise, the BIA did not define what constitutes “reasonably available” medical care in the country of removal and the evidence required to prove that medical care is unavailable. Also, the decision only discusses how medical hardship is analyzed if a qualifying relative is forced to return the foreign national’s country of removal; it does not address what should be considered if there is a separation as a result of the removal. In many instances, a qualifying relative’s condition could deteriorate as a result of a separation, as a result of loss of access to medical insurance, emotional support, and increased stress.

Overall, this decision follows a trend of Board decisions of making requirements more stringent for foreign nationals seeking immigrant benefits. Moreover, while increasing the requirements for success, the Board does not provide sufficient guidance as to how their requirements can be met. These changes create unique challenges in cases involving medical hardship. Foreign nationals will need to work closely with their attorneys and medical professionals to obtain the sufficient corroborating evidence. Similarly, cases involving medical hardship will require attorneys to provide deeper factual and legal analysis in order for foreign nationals to receive the immigration benefit in question.