The system worked?

Insufficient evidence to meet the "exceptional and extremely unusual" standard

The Morales Family

Luis Pedro Morales Alvarado [names are aliases] fled Guatemala in 1996. He spent the next 28 years living, undocumented, in Massachusetts. He met Amelia, and together they raised four children: Santos, Luis Jr., Victor, and Edgar. His children are all U.S. citizens.

Most of the people in the family have serious health issues. Luis Jr. suffered from lead poisoning at an early age. He has ongoing pain, cognitive damage, and a learning disability.

His two young children, Victor and Edgar., also have health problems. Victor was born with improper blood flow, and still suffers chronic pain and anemia. Edgar also suffers from anemia, and has been hospitalized for nosebleeds.

Morales’s partner, Amelia, is unable to work due to a severe leg injury, so for many years Morales has been the sole provider for the family.

At some point, Morales’s undocumented status was discovered, and he was placed in deportation proceedings.

Cancellation of removal

Somebody in Morales’s situation may be eligible for “cancellation of removal”. To be considered, he had to meet four criteria:

1. He had lived in the United States for more than 10 years.

2. He had “good moral character”. (I hate that phrase.)

3. He hadn’t been convicted of any serious crimes.

4. His deportation would cause “exceptional and extremely unusual hardship” for a U.S. citizen parent, spouse, or child under 21

#4 is, as usual, the sticky wicket.

Lots of judges have written lots of words about what “exceptional and extremely unusual hardship” means. Here’s a bit of blather:

The applicant must demonstrate that the hardship to a qualifying relative will be substantially beyond the ordinary hardship that would be expected when a close family member leaves this country. It is a high burden intended to cover truly exceptional situations. A noncitizen need not show that the hardship would be unconscionable, but the standard constitutes a high threshold that is in keeping with Congress’ intent to substantially narrow the class of aliens who would qualify for relief.

Plenty of words, but they don’t make things much clearer. “Exceptional hardship” remains a fuzzy metric somewhere between the two equally fuzzy metrics of “ordinary hardship” and “unconscionable hardship.”

Personally, I think of this as the “really, really” standard: it’s not enough to prove that your kids will be really sad if their dad is deported. You have to prove that they will be really, really sad.

Do Morales’s kids “really, really” need their dad?

Now that we (sort of) understand the standard, we can apply it to Morales.

He’s a man of “good moral character” (ick) with no criminal record who’s been living in the country for 28 years. He’s the sole provider for three “qualifying” relatives — U.S. citizen children who are under 21. All three have serious health problems.

The immigration judge (IJ), the Board of Immigration Appeals (BIA), and the First Circuit spent a lot of time deciding precisely how much his kids will suffer if he is deported. They thought about questions like:

• Could the oldest son, Santos, help support his siblings?

• How severe is Luis Jr.’s learning disability?

• Would the kids remain in the United States (separated from their dad) or go to Guatemala (separated from their doctors, friends, schools, and mother)?

• How much Spanish do the children speak?

• Did the IJ consider everything cumulatively, even if no individual child would suffer enough?

All the judges concurred that deporting the dad would suck for the kids, but that it wouldn’t suck exceptionally and extremely unusually. The kids don’t “really, really” need their dad.

The footnote

The First Circuit strongly implied that they would have liked to rule differently, but that Morales simply didn’t bring enough evidence.

An unfortunate but crucial, recurring theme throughout our analysis is this: Regrettably for Morales, he simply did not provide enough evidence at his hearing to support the arguments he advances, and the Agency appropriately considered all the information it actually had before it.

He should have won, but he didn’t prepare his case well enough.

Tucked at the very end of the opinion was footnote #6. I usually skip footnotes (bad habit, I know). I’m not sure why I happened to read this one. I sort of wish I hadn’t, because it broke my heart a little:

[6] At oral argument, the parties alluded to hundreds of pages of evidence struck from the record by the IJ for untimeliness. Morales does not challenge that exclusionary ruling, and we proceed with our review of the Agency’s decision based on the facts it deemed it would consider.

Further, the IJ found Morales himself was responsible for the exclusion after failing to send the documents to his attorney on time.

What was in the “hundreds of pages” that Morales didn’t give to his lawyer on time? Would they have made a difference? Why didn’t he turn them in on time?

We can only speculate. Certainly, he had his hands full caring for three sick kids and a handicapped partner. He was working full time. Lots of doctors don’t answer the phone after business hours. Lots of lawyers don’t remind their clients of important deadlines. Perhaps this family was shattered because a missing signature on a HIPAA form prevented Morales from getting the complete file for Luis Jr. in time.

Whatever the reason, he missed the deadline. His “untimely” evidence was rejected, and his claim was denied.

The system worked

By some measures, the system worked. Morales was given a chance to submit evidence. He was informed of the deadline, and he missed it. Even without all the evidence, his lawyers did their best. The IJ listened to his arguments, considered the “exceptional and extremely unusual” standard, and decided that, if he were removed, his kids wouldn’t suffer enough. The BIA and the First Circuit listened to his appeals, and each decided that the process had been fair.

Therefore the law is paralyzed / and justice never prevails

Habakkuk 1:4

Any objective, soulless, pitiless observer would have no choice but to call the result “just”.

The First Circuit at least acknowledges that this was a tough one. They conclude by saying — cold comfort — that “we regret that we can do nothing more for petitioner and his children.”

https://scholar.google.com/scholar_case?case=14980597832433725501