As part of our efforts to amplify the AILA Law Journal, authors Lory D. Rosenberg, Susan G. Roy, Paul Schmidt, and Rekha Sharma-Crawford shared some insights from their recent article published in the November, 2022 edition of the AILA Law Journal, “Time for a Child Welfare Approach to Cancellation of Removal” in which they focused on how the best interests of the child are routinely ignored in cancellation of removal cases.

Children. The very thought of them invokes all sorts of images. For some they represent the future, while for others they represent a chance to relive their own childhoods. Notably, in law, children are always treated differently; they are protected, safeguarded, and often shielded from the harshness of the adult world. This is generally true. Except in immigration laws.

The defense, in removal proceedings, of cancellation of removal, for those who are non-permanent residents, is one of the most daunting forms of relief available. Non-citizen parents seeking this relief must prove that they have been in the United States for at least ten years, have been of good moral character, have not committed or been convicted of certain crimes, and that their removal would result in an exceptional and extremely unusual hardship to a child who is either a green card holder or a U.S. citizen. The best interests of the child matter not. Rather, this unforgiving standard often leads to some surprising and unconscionable results.

In 2008, then Senator Barack Obama, in a speech about fatherhood, said, “Of all the rocks upon which we build our lives, we are reminded today that family is the most important. And we are called to recognize and honor how critical every father is to that foundation. They are teachers and coaches. They are mentors and role models. They are examples of success and the men who constantly push us toward it.”

Despite these words over two decades ago, removal defense attorneys will tell you that fathers are often the ones who are deported, leaving children in forced single parent homes. There is nothing normal and everything exceptional and unusual about such a result. For the authors of this article, the need for change is long overdue.

With new data on the trauma caused to children by the involuntary divide of immigrant families, it is time to relook at these old paradigms. Surely, the law offers a more compassionate and holistic avenue. Broken children and broken homes can no longer be the accepted interpretation of statutes in a legal system that recognizes children’s vulnerabilities. Change must be the path forward. By bringing cancellation of removal into the 21st century and making the “best interests of the child” the key for establishing exceptional and extremely unusual hardship, immigration laws will finally come into alignment with other areas of jurisprudence. The authors offer a compelling reason why that time is now.


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