Building a Stronger EOIR-42B Case in 2026: Medical Hardship, Family Choices, Corroboration, and Filing-Fee Compliance

Cancellation of removal under INA § 240A(b), commonly called "42B cancellation," has never been easy to obtain. A respondent must generally establish ten years of continuous physical presence, good moral character, the absence of specified disqualifying offenses, and exceptional and extremely unusual hardship to a United States citizen or lawful permanent resident spouse, parent, or child.

In current Immigration Court practice, however, proving statutory eligibility is only the beginning. Immigration Judges and Department of Homeland Security counsel are examining hardship claims with increasing attention to the practical choices the family will make after removal, the continued availability of medical and educational services in the United States, the quality of the supporting documentation, and compliance with filing-fee and biometrics deadlines.

Recent Board of Immigration Appeals decisions reinforce what practitioners are seeing in court: ordinary family separation, financial loss, and emotional suffering will not ordinarily satisfy the statutory standard. A successful case must explain—with specific, credible, and corroborated evidence—why the qualifying relatives’ circumstances are materially different from those ordinarily associated with the removal of a close family member.

The central strategic lesson is that a 42B case can no longer be prepared as a collection of sympathetic facts. It must be developed as an evidentiary record that answers the questions the Immigration Judge and DHS are likely to ask before they ask them.

The Two Future Analysis

One of the most important parts of a cancellation case is establishing what the qualifying relatives will actually do if the respondent is removed. Will the qualifying spouse, parent, or child remain in the United States? Will the qualifying relatives accompany the respondent to the country of removal? Will different members of the family make different choices?

These are not minor factual details. Each possible future creates a different hardship analysis.

If the qualifying relatives will remain in the United States, the court will examine the consequences of separation. Those consequences may include loss of income, housing instability, interruption of childcare, deterioration in mental health, inability to attend medical appointments, loss of transportation, reduced parental supervision, or disruption of specialized educational services.

If the qualifying relatives will accompany the respondent, the court will examine conditions in the country of removal. That inquiry may include the availability, quality, affordability, and geographic accessibility of medical treatment; the child’s ability to enter the educational system; language limitations; exposure to environmental or dietary risks; the availability of medications; community safety; family support; and the qualifying relative’s ability to adapt to a country in which the person may never have lived.

Counsel should not simply select the scenario that appears to create the greatest hardship. The family’s anticipated decision must be credible and supported by the record.

The recent decision in Matter of Lopez-Davila, 29 I&N Dec. 763 (BIA 2026), illustrates the danger of relying on a family’s proposed choice without fully explaining its practical basis. The Board held that a parent’s decision to leave a United States citizen child in this country without parental care does not, by itself, establish exceptional and extremely unusual hardship. It also clarified that care by another responsible adult may be legally sufficient; parental care is not the only arrangement the court may consider adequate. [1]

The case requires counsel to investigate both scenarios carefully. If a child will remain, who will provide daily care? Is that person legally, physically, financially, and practically able to assume the responsibility? Does the proposed caregiver work? Does the caregiver have adequate housing? Is the arrangement temporary or permanent? What happens if the caregiver becomes unavailable?

If the child will accompany the respondent, counsel must explain why relocation is realistic and then document the hardships that will follow. Leaving either side of the analysis undeveloped gives DHS an opportunity to argue that the family could avoid the claimed hardship simply by choosing the other option.

When the Family Remains in the United States

A recurring government argument is that a qualifying relative who remains in the United States will continue to have access to the same physicians, medication, Medicaid coverage, private insurance, school services, therapy, and community resources that are presently available. If treatment will continue, DHS may argue, the respondent’s removal does not create the necessary medical hardship.

The Board adopted this reasoning in Matter of Buri Mora, 29 I&N Dec. 186 (BIA 2025). The qualifying children had autism, anxiety, and developmental delays. Nevertheless, because the children would remain in the United States with their mother, retain state Medicaid, and continue receiving educational and medical services, the Board concluded that their conditions did not establish exceptional and extremely unusual hardship. The Board also found the claimed economic and separation hardships insufficient when considered cumulatively. [2]

This does not mean that a medical claim necessarily fails whenever treatment remains available. It means that counsel must prove the respondent’s role in obtaining, maintaining, and making that treatment effective.

Who transports the child to medical appointments? Who communicates with physicians, therapists, and school personnel? Who administers medication? Who watches the other children during appointments? Who recognizes symptoms or manages emergencies? Does the qualifying relative’s insurance depend on the respondent’s employment? Will the remaining parent have to work additional hours and thereby lose the ability to attend appointments? Does Medicaid cover every required service, or are some services privately funded? Are there deductibles, copayments, transportation expenses, waiting lists, or limitations on the number of covered therapy sessions?

The case should demonstrate the difference between the theoretical availability of treatment and the family’s practical ability to use it after removal. Insurance cards and a diagnosis are not enough. Counsel should develop evidence concerning coverage terms, out-of-pocket expenses, transportation, appointment frequency, the respondent’s caregiving duties, the other parent’s employment obligations, and the consequences of interrupted or inconsistent treatment.

Medical Testimony Must Be Corroborated

Attorneys also need to move beyond relying primarily on the testimony of the respondent and family members.

A respondent may testify sincerely that a child suffers from depression, developmental delays, diabetes, asthma, or another serious condition. A parent may explain that the respondent’s removal will make the condition worse. That testimony is relevant, but recent authority makes clear that it may not be sufficient when medical records, professional reports, or expert evidence could reasonably have been obtained.

In Matter of Pelagio Mendoza, 29 I&N Dec. 542 (BIA 2026), the Board held that testimony concerning a qualifying relative’s medical or mental-health condition will generally be insufficient where expert testimony, reports, or medical evidence exists and could reasonably have been produced. The record included testimony concerning a child’s past anger issues and suicidal thoughts, but it lacked a diagnosis, medical reports, a therapist’s affidavit, and evidence explaining how the respondent’s removal would affect the child’s condition. [3]

This decision should change the way attorneys prepare medical-hardship claims. The treating professional should be asked to identify the diagnosis, its severity, the current treatment plan, medication, prognosis, and the likely consequences of interruption. When appropriate, the provider should explain the respondent’s role in the patient’s care and whether separation, relocation, loss of income, or disruption of the existing support system is likely to affect the condition.

The letter should do more than confirm that a person is a patient. It should connect the medical evidence to the anticipated consequence of removal. School records can be equally important. An individualized education program, psychological evaluation, attendance history, behavioral plan, teacher declaration, or special-education assessment may establish limitations that are not apparent from testimony alone.

Counsel should also document unsuccessful efforts to obtain evidence. If a provider refuses to supply a letter, preserve the written request and response. If records will not be available before the court’s deadline, obtain proof of the request and consider whether a timely motion is appropriate. A general assertion that medical records are private will rarely answer why the patient or the parent of a minor did not obtain them.

When the Qualifying Relative Will Relocate

The other side of the case requires equal attention. Attorneys frequently rely on a respondent or relative stating that medical care in the home country is "not the same" as treatment in the United States. That conclusion may be true, but the testimony ordinarily does not establish why care is inadequate, unavailable, unaffordable, or inaccessible to this qualifying relative.

Matter of J-J-G-, 27 I&N Dec. 808 (BIA 2020), remains important. It explains that when hardship rests on a qualifying relative’s health, the applicant should establish both that the medical condition is serious and—if the relative will accompany the respondent—that adequate medical care is not reasonably available in the country of removal. The hardship factors must then be considered cumulatively. [4]

The word "reasonably" matters. A medical service may technically exist somewhere in the country but still be unavailable to the family in any practical sense. Counsel should investigate whether the required specialist practices in the location where the family would live; the distance and travel time to an appropriate hospital or clinic; whether public or private transportation is realistically available; whether the medication is approved, consistently available, and affordable; whether treatment requires insurance, advance payment, or enrollment in a public-health system; waiting periods and referral requirements; and whether moving near treatment would separate the family from housing or financial support.

Country reports are useful, but general evidence should be connected to the qualifying relative. A national shortage of specialists becomes more persuasive when the record identifies the specialist the child needs, where the family will live, the nearest available provider, the cost of consultation, and the family’s expected income. The evidence must answer a practical question: What will happen to this particular person in this particular location?

Diabetes in Mexico is a useful example, but it should be used to illustrate the individualized analysis rather than treated as a claim by itself. Evidence of a high national diabetes rate may provide context, but it does not establish that a particular United States citizen will suffer exceptional and extremely unusual hardship. The stronger record identifies the type and severity of diabetes, required insulin or medication, monitoring equipment, dietary plan, specialist care, and existing complications. It then establishes whether those medications and supplies are consistently available where the family would live, what they cost, how far the patient must travel, and what interruption would mean medically.

Dietary evidence may also matter. Counsel should investigate whether the person’s prescribed diet can realistically be maintained in the proposed community and at the family’s anticipated income level. Food prices, the availability of appropriate foods, refrigeration, access to clean water, local dietary practices, and the cost of alternatives may affect disease management. The analysis should not stereotype a country or culture. It should explain through reliable evidence why the individual’s medical needs would be more difficult to manage in the actual location of relocation.

Geography can be decisive. Evidence that excellent treatment exists in Mexico City may have little practical value to a family returning to a rural community hundreds of miles away. Conversely, a generalized statement that treatment is poor in Mexico may be undermined if the family plans to live in a major city with accessible specialists. Location, cost, transportation, eligibility, dietary environment, and continuity of care must be developed together.

Economic Hardship Must Be Specific

Economic hardship remains relevant, but ordinary financial loss is generally insufficient.

The Board’s recent decisions emphasize that diminished economic or educational opportunities and the emotional consequences of separation often resemble hardships normally associated with removal. Matter of Arevalo-Vargas, 29 I&N Dec. 519 (BIA 2026), reiterates that hardship must be substantially beyond what families ordinarily experience when a close relative is removed. It also illustrates another danger: because cancellation is a continuing application, a child who turns 21 while a case remains pending may cease to be a qualifying relative. [5]

A financial claim should therefore be built from evidence rather than general estimates. Provide tax returns, pay records, bank statements, lease or mortgage records, utility expenses, insurance premiums, medical bills, therapy expenses, childcare costs, transportation costs, and evidence of the remaining caregiver’s realistic earning capacity.

Then explain the consequences. Will the family lose its residence? Will a child lose insurance or therapy? Will the remaining parent be required to work during the hours when a medically vulnerable child needs supervision? Is the family already operating at a monthly deficit? Can relatives actually provide continuing financial assistance, or is that only an assumption?

The inquiry is not merely whether the family will have less money. It is whether the financial consequences will produce a materially greater hardship for a qualifying relative because of that person’s age, health, educational needs, dependency, or other particular circumstances.

Present Hardship as a Cumulative Case

A strong 42B case rarely depends on one fact. A child may have a medical condition that would not independently satisfy the standard. The family may also face loss of income, housing instability, interruption of insurance, reduced parental supervision, educational disruption, and deterioration in mental health. Each consideration must be documented, and the record should explain how the factors interact.

The attorney should not present the evidence as unrelated categories. For example, the respondent’s removal may require the remaining parent to work additional hours. Those additional hours may make it impossible to transport a child to therapy. Missed treatment may worsen the child’s condition. The loss of the respondent’s income may also prevent the family from paying for treatment not covered by Medicaid. Housing instability may then require the child to change schools and lose an established special-education team.

The hardship lies in the cumulative chain of consequences. Counsel should make that chain explicit through testimony, records, declarations, and closing argument.

Filing Fees and Deadlines Can End the Case Before the Merits

Even the strongest hardship case cannot succeed if the application is not properly filed.

We are seeing Immigration Judges establish firm deadlines for payment of the filing and biometrics fees associated with Form EOIR-42B. When payment is not made, or proof of payment is not filed by the court-ordered deadline, DHS may request that the application be deemed abandoned or pretermitted, and Immigration Judges are increasingly willing to enforce those deadlines.

EOIR’s current guidance states that applicants must pay the required filing and biometrics fees and comply with DHS instructions for providing biometric and biographic information. The court’s instructions and the current fee schedule must be reviewed carefully because fee procedures and amounts have changed, including additional fees required by Pub. L. 119-21. [6]

Fee compliance should be treated as part of the merits preparation. Counsel should calendar the court’s payment and filing deadlines immediately; verify the current filing fee, biometrics fee, and any additional fee required by Pub. L. 119-21; confirm which agency must receive each payment; retain the receipt and confirmation number; file proof of payment with the Immigration Court by the ordered deadline; confirm that biometrics instructions have been followed; and preserve evidence of any technical payment problem.

As of February 23, 2026, EOIR states that fees payable directly to EOIR must be submitted electronically through its payment portal rather than by check or money order. Practitioners should nevertheless determine whether a particular EOIR-42B-related payment is made to EOIR or DHS and follow the current form instructions and the Immigration Judge’s order. [7]

Do not assume that filing the application without the required payment will preserve the claim. Do not assume that payment alone is enough if proof was not submitted to the court. And do not wait until the individual hearing to discover that the record contains no evidence of timely payment or biometrics compliance.

A Better Approach to 42B Preparation

The recent trend is clear. Immigration Judges and DHS counsel are testing whether the hardship claim remains persuasive under each realistic family scenario and whether objective evidence supports what the witnesses say.

A stronger case should identify every qualifying relative and monitor any age-out issue; determine whether each qualifying relative will remain or relocate; develop both scenarios sufficiently to answer DHS’s alternatives; obtain complete medical, psychological, educational, insurance, and financial records; request detailed letters from treating professionals; document the respondent’s caregiving and financial responsibilities; research treatment in the actual community of relocation; establish costs, eligibility requirements, travel distances, waiting periods, and medication availability; connect country conditions to the qualifying relative’s individual circumstances; explain hardship cumulatively; and verify every fee, biometrics requirement, and deadline.

Conclusion

The modern 42B case requires more than compelling testimony and a sympathetic family.

If qualifying relatives remain in the United States, counsel must explain why continued access to physicians, Medicaid, insurance, schools, or therapy does not eliminate the hardship created by the respondent’s removal. If they relocate, counsel must prove why treatment or other necessary support is not reasonably available to them—not simply somewhere in the country, but in the location and under the financial circumstances in which they will live.

The strongest cases connect the evidence. They show how removal affects insurance, income, transportation, medical compliance, education, supervision, housing, and mental health. They support medical claims with professional evidence. They use country reports, public-health data, provider information, cost evidence, and location-specific research to establish what relocation would mean in practice.

Finally, they treat fees and filing deadlines as substantive case requirements. A fully developed hardship record cannot cure a missed payment deadline after an application has been deemed abandoned or pretermitted.

Cancellation of removal remains a highly demanding form of relief. The attorney’s task is to move the claim beyond general hardship and build a documented, individualized, and cumulative explanation of why this qualifying relative will suffer consequences substantially beyond those ordinarily expected from removal.

1. Matter of Lopez-Davila, 29 I&N Dec. 763 (BIA 2026) Official source
2. Matter of Buri Mora, 29 I&N Dec. 186 (BIA 2025) Official source
3. Matter of Pelagio Mendoza, 29 I&N Dec. 542 (BIA 2026) Official source
4. Matter of J-J-G-, 27 I&N Dec. 808 (BIA 2020), available through Official source
5. Matter of Arevalo-Vargas, 29 I&N Dec. 519 (BIA 2026) Official source
6. Executive Office for Immigration Review, Cancellation of Removal for Nonpermanent Residents Official source
7. Executive Office for Immigration Review, payment portal notice and current fee guidance Official source
8. Fernando D. Gireud is an attorney with Anderson Law Group and represents individuals in removal proceedings and immigration litigation.
9. DISCLAIMER This article is provided for general informational purposes and does not constitute legal advice.

This article is provided for general informational purposes and does not constitute legal advice.