Extreme Hardship

Overview of Extreme Hardship

extreme hardshipExtreme Hardship is a legal standard utilized in U.S. immigration law. It applies to some situations when certain unlawful activities of the noncitizen have made him or her inadmissible into the United States. From practical prospective, when a noncitizen is inadmissible, he or she would not be eligible to obtain a favorable immigrant visa adjudication at an American Consulate or, for that matter, of an adjustment of status application within the United States.

The phrase “extreme hardship” carries a specific meaning in U.S. immigration law. It refers to a standard utilized by adjudicators to determine whether deportation, or in the modern system, removal of the noncitizen from the United States would cause extreme hardship to his or her qualifying family member. The law recognizes parents, sons or daughter and spouses as qualifying relatives when they are U.S. Citizens or Legal Permanent Residents.

The decision on whether extreme hardship exists is committed to the administrative discretion. It means that if the adjudicator makes adverse decision, the appellate agency or the reviewing court, as the case may be, has very limited review authority on appeal over such a decision. Such limitation on appellate power over extreme hardship determinations is not a matter of coincidence. It is a deliberate policy of the U.S. law aimed at insuring finality and concentrating relevant authority in the hands of the officials to whom it has been lawfully delegated under the law.

Degrees of extreme hardship

Depending on the application for relief, the law applies several degrees of extreme hardship. For instance, waivers of inadmissibility for certain offenses specified in §212(h)(1)(B) of the Immigration and Nationality Act (The INA) use “extreme hardship to a qualifying relative” as the applicable adjudication standard for making decisions on requests to excuse requisite inadmissibility grounds. INA §212(h)(1)(B) authorizes waivers of crimes of moral turpitude, multiple criminal convictions and a single offense of simple possession of 30 grams or less of marijuana. In some instances, such offenses can be waived even if they constitute aggravated felonies within the meaning of the immigration law.

Waivers of offenses related to fraud and misrepresentations, addressed in INA §212(i), also use the same standard of extreme hardship. Available only in former deportation proceedings, Suspension of Deportation relief used the same standard of extreme hardship, and so still does the special Cancelation of Removal relief for battered spouses and children of U.S. citizens and Lawful Permanent Residents (LPR).

By contrast, Cancelation of Removal relief for both LPRs as well as nonresidents utilizes a much striker standard, requiring that a noncitizen in removal proceedings show extreme and highly unusual hardship to a qualifying relative before Cancelation of Removal could be granted by an immigration judge as a matter of discretion.

What is Extreme Hardship, after all?

A leading precedent

Perusing the applicable precedent law is the best way to understand the meaning of the phrase extreme hardship. It is so because the Congress often rights laws in broad strokes sufficient to formulate the policy, and leaves the power to fill in the details to the executive branch (The President and answerable to the President administrative agencies). Thus, it is the regulations promulgated and precedent decisions made by the relevant administrative agencies and Federal courts, reviewing the matter that do the work of filling in the details.

The leading administrative case on extreme hardship is the Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999). Cervantes arose in the context of the INA §212(i) waiver adjudication. The Board of Immigration Appeals (BIA) decided this case in 1999 and Cervantes has remained BIA's precedent ever since. Cervantes is about a young individual from Mexico who lived in the United States for many years. In 1995, Cervantes, then twenty-four years of age, married a Legal Permanent Resident. His wife, who shortly after the marriage became a Naturalized US citizen, served as a qualifying family member for purposes of Cervantes's waiver application. U.S. government put Cervantes in removal proceedings to seek his removal from the United States. The government charged Cervantes with inadmissibility for fraud or misrepresentation of a material fact. In his defense to removal, Cervantes requested adjustment of status based on an approved visa petition filed by his U.S. citizen wife. Because he had previously been caught using false documents, he was deemed inadmissible and thus ineligible for adjustment of status. To resolve the problem, Cervantes also requested a waiver of inadmissibility pursuant to INA §212(i), asking the Court to excuse (“waive”) his ineligibility for adjustment of status created by his used of false documents.

The immigration judge denied the request making a legal decision that Cervantes, in the view of the Court, failed to show that his wife would experience extreme hardship if he were deported. Cervantes appealed to the Board of Immigration Appeals. After review, BIA dismissed the appeal. BIA decided that Cervantes's family had not shown to the satisfaction of the Board of Immigration Appeals that they had managed to develop meaningful financial ties to the United States. Board explained that such ties served as an important factor in its evaluation of whether to excuse Cervantes's unlawful behavior and allow him to remain in the USA.

BIA further explained that Cervantes's wife was well aware prior to their marriage that her husband had been in deportation proceedings. Board gave substantial meaning to the fact that Cervantes's wife was of Mexican origin and had relatives in Mexico. Board noted that during her testimony at Cervantes's hearing, the wife did not mention that she would suffer extreme hardship if she and her husband moved to Mexico. Giving all these factors, BIA found that Cervantes's wife would not experience any particular hardship if she followed her husband to her native country of Mexico and based on these facts the couple, in the Board's view, did not merit the waiver.

Why is Cervantes important?

This BIA decision is important for several reasons. First, it reinforced the policy considerations behind extreme hardship concept. In this, it held that manifold, relevant to extreme hardship inquiry considerations, all need to be looked into by the adjudicator when making a decision on whether extreme hardship exists in a particular case. The BIA's precedent on the issue since it was decided in 1999, and despite the passage of time, Cervantes is still a good law on several important issues in the context of extreme hardship. The reason for the longevity is that between the majority and the dissenting opinion, the Board in Cervantes did a good job of explaining the concept and applicability of extreme hardship as well as provided guidance to understanding of the concept's working in removal context. The Board in Cervantes, also made it clear that extreme hardship could, if the Board so desired, be viewed narrowly and that the Board was serious in enforcing the policy that certain circumstances in human life are so paramount as to not be overlooked by any reasonable adjudicators.

Second, as a precedent, it legal conclusions are binding on all BIA decisions on the subject of extreme hardship, coming after Cervantes. Indeed, a decade later, most immigration judges still use the reasoning in Cervantes in making their extreme hardship determinations and look into factors spelled out on the pages of the majority decision as well as in the dissenting decision by judge Rosenberg. In short, the Congress's policy which the Board embraced in Cervantes can be summarized as follows: a human being should not be taken away from his or her family and shipped away to other lands by the Government of the Unites States, when such move would cause extreme hardship to his or her sons, daughters, parents or a spouse even if he or she had committed offenses specified in INA 212(i) (fraud or misrepresentation to obtain a benefit in immigration law) and 212(h) (multiple criminal offenses, crimes of moral turpitude, except murder and rape, or possession of less than 30 gram of marihuana). Doing otherwise, the Congress reasoned, would be improper and wrong on many levels.

Third, and perhaps the most important, the Board in Cervantes explained the meaning of extreme hardship and provided clear way for immigration judges to approach the issue. What more, it gave us, the general public some understanding of how extreme hardship as a concept would be implemented in the context of inadmissibility waivers. In essence, the Board followed federal case law and held that though extreme hardship was not a rigid concept which could be defined in “§ 1240.58 Extreme hardship” terms, and should be viewed on a case-by-case basis, there were some common factors, which had to be consider by every immigration judge in making extreme hardship determination. The Board also opined, at the very lease in the dissenting opinion, that it is the cumulative effect of all these factors on the qualifying relative that should carry the day in deciding whether the noncitizen seeking a waiver would be allowed to remain with his or her family in the United States.

Fourth, the dissenting opinion in Cervantes sheds even more light than the majority does, on what factors, including those the majority failed to incorporate in its relevant factor list, should be considered in making extreme hardship determination. The dissenting opinion in Cervantes, is probably as important to read, as the majority, if not more, because it provides a great overview of the relevant to extreme hardship law as it stood when Cervantes was being decided, of the U.S. Court of Appeals for the Ninth Circuit, the court with the appellate authority over the area of San Francisco, where Cervantes case originated, as well as the U.S. Supreme Court. The dissenting opinion makes a good job emphasizing that some factors not mentioned in the majority opinion, were still very important for any adjudicator to consider, at least in the view of the Ninth Circuit Court of Appeals and the U.S. Supreme Court. It is also worth mentioning, as the dissenting opinion pointed out, that in the eyes of the law as it stands up to now, the relevant inquiry is not whether a particular factor or a group of factors creates extreme hardship for the qualifying relative, but rather whether the cumulative effect of all relevant factors does that. This is a very important distinction, which the majority opinion in Cervantes regrettably did not look into, in adversely deciding, what appeared to be a deserving situation to be favorably adjudicated. Since that time, many changes have come into being in the immigration law, and surely, many of the valuable points made in the dissenting opinion in Cervantes appeared to have gained wide support among many immigration judges, who roughing look into a variety of additional factors which did not make it into majority opinion, yet were mentioned by the dissent. Such factors include the economic conditions in the country where the qualifying relative needs to follow his or her noncitizen family member; the extend of the family ties of the qualifying relative in the USA; overall family situation; length of residence in the USA, ability to raise children in the foreign country in question; education and professional skills of the qualifying relative especially in the context of his or her employability in the foreign country and so on.

Fifth, Judge Rosenberg's dissenting opinion contains a landmark explanation of the reasons why belittling some factors, not considering others at all, while giving excessive weight to some while distorting their context, inevitably leads to arbitrary and bad conclusion, bad for the applicant, for the policy of fairness and for the system as a hole. If the majority in Cervantes stayed on the path of impartiality and was more concerned with getting it right, Cervantes case would have a different and much more reasonable outcome.

Lasting legal conclusions

BIA made several consequential legal conclusions in Cervantes decision. First, the Board, as the highest administrative tribunal for removal and deportation field, decided that the meaning of the extreme hardship in immigration context could in no way be fixed and unchangeable. This holding makes a lot of sense since it depends so much on the facts at hand. In other words, what may seem not a hardship at all, or at the very least, not so extreme a hardship in one set of circumstances, could carry very harsh and extreme effects in another. These effects can, at times, be so harsh as to justify favorable decision on a petition by an noncitizen to excuse his or her unlawful behavior and allow the noncitizen to remain in the USA in order to avoid hardship to the qualifying relative.

Second, the Board looked at this problem from several angles. BIA reasoned that certain degree of uniformity should still exist as to what factors adjudicators consider in making extreme hardship determinations. BIA held that certain factors were so important to extreme hardship determination that any reasonable adjudicator should consider them in looking at extreme hardship situations. To identify these factors, the Board turned to accumulated volume of law and legal expertise, which governed suspension of deportation relief. Sustention of Deportation existed under the prior law, which cancelation of removal procedure replaced with the enactment by US. Congress of the sweeping changes to immigration law during the decade of 1990s. The Board also looked at the considerations made in waiver adjudication under INA §212(c), which was the inadmissibility waiver of criminal behavior later replaced by the INA §212(h) waiver. BIA eventually identified five general groups of factors to be taking into account by any reasonable adjudicator making extreme hardship determination:

  • qualifying relative's ties to the United States, including financial and other;
  • qualifying relative's ties outside the United States including financial and other;
  • political and economic condition in the country of return which might cause hardship to the US relative;
  • financial impact of departure on the qualifying family member;
  • health conditions of the applicant and his family, especially if the needed medical care is not available in the country of return.

Why does Cervantes still stand?

BIA guidance in Cervantes simply makes sense. In fact, it is so well- reasoned that other administrative agencies within the U.S. Immigration system as well as Federal Courts also decided to look at similar factors in making similar considerations in cases involving their respective jurisdictions. For instance, the Administrative Appeals Office (AAO), U.S. Department of Homeland Security's appellate unit, which adjudicates certain types of immigration appeals that lie outside the removal or deportation proceedings, used, as Julie C. Ferguson[1], emphases in her book, the factors and the BIA reasoning in the Matter of Cervantes to overturn the denial of an INA §212(i) waiver application by the consular officer-in-charge in Athens, Greece.

This application was also based on the finding of extreme hardship. Having reviewed the facts closely, AAO found that the applicant's wife would, unlike Mrs. Cervantes, experience extreme emotional hardship if she was forced to say in the United States and take care of their child alone, or if she were forced to return to Lebanon to her husband.

Case evidence showed that the wife suffered from depression, panic attacks and anxiety disorders. She was at risk of recurrence since her mother experienced similar problems and she lost her father at a young age. She suffered from hair loss and couldn't stay home alone because she was lonely and scared. Her son suffered from asthma and often required medical attention including hospitalization. All of these factors about her son's health contributed to even more stress. The case record also showed that during travel to and from Lebanon, and while staying in Lebanon, her son required medical care. The medication needed for her son was not available in Lebanon and the family would not have health insurance to cover medical expenses. The case record also contained country condition reports, reports of dire economic conditions and high unemployment rate. The U.S. Department of state recommended that U.S. citizens refrain from traveling to Lebanon. Based on the evidence, and in light of Matter of Cervantes case, the AAO found that the applicant and his wife would experience extreme hardship if his waiver of inadmissibility was denied.

Many years have elapsed since the important Cervantes decision. Over these years, the BIA and federal courts have developed a long list of factors appropriate to showing of extreme hardship. Although not all factors are appropriate to every case, the major groups of factors to be considered when determining extreme hardship have remained the same.

AILA focus on waivers under the immigration and nationality act, Julie C. Ferguson, AILA, 2008.