Removal Proceedings: When a Child's Asthma Isn't Enough
A Salvadoran father argued that his son's asthma — including two hospital visits and daily medication — was reason enough to stop his deportation. The First Circuit disagreed in September 2026. The reason matters for anyone in removal proceedings who plans to use a child's health as the centerpiece of their case.
What if your child has asthma and needs medication — does that count as "exceptional hardship" in removal proceedings? The First Circuit answered that question in September 2026: not automatically, and not without hard evidence.
Carlos Rene Espinoza Benitez, a citizen of El Salvador who entered the US on a visa in 2000 and overstayed it in 2001, fought deportation for years. He argued that removing him would cause "exceptional and extremely unusual hardship" to his two US citizen children — specifically, that his son J.P.E. needed asthma medication that Espinoza believed he could not afford in El Salvador. The Immigration Judge (IJ) held an evidentiary hearing and denied the application. The Board of Immigration Appeals (BIA) affirmed. On September 1, 2026, a three-judge panel of the First Circuit — Judges Rikelman, Lynch, and Aframe — denied Espinoza's petition for review.
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Why the court sided with the government
The IJ found that Espinoza never provided specific evidence: no cost figures for asthma medication in El Salvador, no proof that treatment was unavailable there, and no documentation showing his family could not afford it. Espinoza himself admitted during testimony that he did not know the cost of the medications in El Salvador. The IJ considered J.P.E.'s two hospital visits, the inhaler prescription, and Espinoza's concerns about living 45 minutes from a hospital — but concluded that this evidence did not reach the "exceptional and extremely unusual" level the law requires under 8 U.S.C. § 1229b(b)(1)(D). The First Circuit, applying deferential review under the Supreme Court's 2024 ruling in Wilkinson v. Garland, found no legal error in the IJ's reasoning.
The hardship standard is deliberately high. Under BIA precedent set in Matter of Monreal-Aguinaga (BIA 2001), an IJ weighs multiple factors — including a child's health — in the aggregate. A medical condition must be "very serious," and even then, a petitioner must show that treatment is unavailable or unaffordable in the home country. Espinoza's case failed on both counts. The court also noted that his financial concerns — lower wages in El Salvador, risk of gang extortion, his wife's inability to cover household expenses alone — were real but not substantially beyond what courts typically see in deportation cases.
What to do
- If you are applying for cancellation of removal and plan to argue a child's medical condition, gather specific evidence: doctor letters stating the condition is serious, cost comparisons for medication in the home country, and proof that treatment is unavailable or unaffordable there. Vague testimony is not enough.
- Document your financial contribution to the household with pay stubs, tax returns, and a written breakdown of monthly expenses — and show what would happen to your family's finances if you were removed.
- If the BIA has already denied your case, consult an immigration lawyer immediately about whether a petition for review to a federal circuit court is possible. Deadlines for filing are strict.
- Review the BIA's Matter of Monreal-Aguinaga factors with your attorney before your hearing so you can build evidence around each one, not just the medical issue.
A full breakdown of this topic — in our guide “Immigration Court Rulings”.
Fishkin Law Firm, New York
This ruling is a clear reminder that 'exceptional and extremely unusual hardship' is one of the hardest standards to meet in US immigration law. If your child has a medical condition, you need a treating physician's letter explaining why the condition is serious, country-condition evidence showing the specific medication is unavailable or prohibitively expensive in your home country, and financial documentation proving you cannot afford it there. Submitting that package before the Immigration Judge — not on appeal — is critical, because federal courts generally cannot review factual findings after the fact. If you are preparing a cancellation case, work with an experienced immigration attorney well before your hearing date.
Frequently Asked Questions
What does 'exceptional and extremely unusual hardship' mean in removal proceedings?
It means the hardship your US citizen or permanent resident family member would face must be substantially worse than what is normally expected when a parent or spouse is deported. Ordinary financial difficulty, separation, or even a manageable medical condition usually does not meet this standard. You must show something significantly beyond the typical case.
My child has a medical condition. Is that enough to stop my deportation?
Not on its own. Courts look at whether the condition is very serious, whether treatment is unavailable in your home country, and whether you can afford that treatment. You need specific evidence — doctor letters, cost data, country reports — not just testimony that you are worried about affording medication.
Can I appeal to a federal court if the BIA denies my cancellation of removal case?
Yes, you can file a petition for review with the federal circuit court that covers your state. However, federal courts can only review legal questions — not the underlying facts. If the Immigration Judge made factual findings against you, those are very hard to overturn on appeal. Filing deadlines are strict, so contact an immigration lawyer immediately after a BIA denial.
What evidence should I gather before my cancellation of removal hearing?
Bring medical records and a doctor's letter explaining the severity of your child's condition, documentation of the cost and availability of treatment in your home country, pay stubs and tax returns showing your financial contribution to the household, and a written breakdown of monthly expenses with an explanation of what would happen to your family if you were removed.