Your Child's Education Could Save Your Deportation Case

In removal (deportation) proceedings, one of the most difficult challenges for an immigration attorney is demonstrating exceptional and extremely unusual hardships to a qualifying relative, a key element to obtaining cancellation of removal. In many cases, the only qualifying relative may be a United States citizen child who is in relatively good health. In cases like these disruption of a child's education may be the last viable issue for a client seeking cancellation of removal.

Recently the issue of disruption in the education of United States children was a key issue in winning two cases I tried before the immigration court. The first case focused on the hardships that are visited upon a special needs child who is receiving special education services from the school district. In the second case my client's children were exceptionally talented individuals participating in the G.A.T.E. program in their public school district.

The Board of Immigration Appeals has stated that strong applicant might have a qualifying child with very serious health issues, or compelling special needs in school. Matter of Montreal, 23 I&N Dec. 56 (BIA 2001) The challenge is communicating the child's disability to the judge in removal proceedings. Special needs children receiving special education often have a substantial written record generated by the school district relating to that child's disability.

Often the government will argue that a child's learning problems are because English is not the child's first language or language spoken in the home. This effort to blame the victim can be effectively countered with expert testimony. In the case, which I recently tried, I had an expert in special education review the school record, examine the child and family, and provide testimony to the court. Ultimately this testimony was cited by the Immigration Judge in issuing the court's oral decision.

Expert testimony can help an immigration judge understand special education concepts, understand school district identification of special needs children, and these children are at a disadvantage to children of normal abilities in adjusting to being removed from the United States. Many experts believe that a drastic change in surroundings, and educational environment can cause regression or damage to a special needs student.

On the other end of the spectrum are children of extraordinary ability. Here the attorney must obtain testimony and present evidence of the above average performance of the children, a child's emotional commitment to being a successful student and the recognition by the school district for their efforts. It is important to show advanced curriculum of the child such as “A.P.” classes, and participation in statewide initiatives such as the G.A.T.E. program. (Gifted and Talented Education Program sponsored by California State Department of Education)

An attorney will have to show that if removed, a child will not be able to continue their studies at the level he or she is participating in the United States. It is important to show limited ability of the child to speak the language used in the foreign country's school system and how that child will be damaged in his or her ability to pursue opportunities that will spring from their strong educational background in the United States if removed from this country. Also expert psychiatric analysis over their loss of education and opportunities will help better define the psychological trauma and impact on the child.

Most attorneys are aware of the case law governing hardship to U.S. citizen children upon removal of their parents. It is not enough however to point to report cards and cite case-law, a careful explanation of the student record, disabilities or extraordinary abilities of the student, and expert testimony is often needed to clarify these issues for the court. Please note that while I am reporting success on two recent cases, this is not a guarantee of success on your case. The decisions of an immigration judge are highly discretionary and are driven by a variety of facts, and circumstances governing a case. It is important however that you do seek skilled and qualified legal counsel to present your case at trial.

Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.

A similar version of this article may have been published in the Asian Journal.