Introduction

Decided in 1999, the Board of Immigration Appeal’s (BIA) decision in Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999)1 [link] remains the leading judicial precedent on extreme hardship waivers [see article] in the Immigration and Nationality Act (INA). Matter of Cervantes is an extremely valuable case for understanding the concept and application of extreme hardship because it has been cited often, its reasoning has been applied consistently since it was decided, and because the concept of extreme hardship is not particularly well defined by statute. This article will explain the Cervantes case and decision, discuss the rules it set forth for evaluating extreme hardship waiver applications, and finally look at the lasting effects of Matter of Cervantes.

Matter of Cervantes: Case and Decision

Matter of Cervantes concerned a 24-year old man from Mexico, Luis Felipe Cervantes-Gonzalez, who, after living in the United States for many years, was facing removal proceedings for fraud or misrepresenting a material fact pursuant to INA § 212(a)(6)(C). During the pendency of his removal proceedings, Cervantes married a lawful permanent resident (LPR) from Mexico who was subsequently naturalized as a U.S. citizen. As a part of his defense from removal, Cervantes requested adjustment of status [see category] under INA § 245 based on an approved visa petition filed by his wife, and accordingly sought a waiver of inadmissibility grounds under section INA § 212(i) based on extreme hardship to his wife, which provides that inadmissibility under INA § 212(C)(i)(1) may be waived if the alien in question establishes that his or her removal would “result in extreme hardship to the [qualifying immediate relative].” After an immigration judge (IJ) found that Cervantes had failed to show that his wife would suffer extreme hardship were he to be deported, Cervantes sought and obtained BIA review of the denial.

Ultimately, the BIA upheld the IJ’s ruling that Cervantes had failed to demonstrate that his wife would suffer extreme hardship upon his removal. The BIA’s majority held that Cervantes’ family had not developed meaningful financial ties to the United States, which was an important factor in the view of the majority for establishing extreme hardship stemming from the removal of a spouse. Furthermore, the BIA noted that Cervantes’ wife was aware of Cervantes’ deportation proceedings when she entered into the marriage, and thus likely had some idea that his deportation was a possibility. In addition, the majority noted that Cervantes’ wife never, in all of her testimony, asserted that she would suffer from extreme hardship were Cervantes to be deported to Mexico. Finally, the BIA took into account that Cervantes’ wife herself was of Mexican origin, and that she had numerous relatives living in Mexico. After taking all of the facts of the case into consideration, the BIA found that Cervantes’ wife would not suffer extreme hardship due to Cervantes’ deportation, and accordingly that Cervantes did not warrant a waiver from his inadmissibility ground based on extreme hardship to a qualifying relative.

Lasting Effects: Why Cervantes is Still Meaningful Today

Matter of Cervantes’ lasting significance does not derive mainly from the particular facts of Cervantes’ situation, but rather from the broader applicability BIA’s analysis of his extreme hardship claim. In order to understand the importance of the Cervantes decision, we must note that the concept of extreme hardship is not particularly clearly defined by the relevant statute. To understand this, let us look again at the language of the waiver Cervantes applied for in INA § 212(i): “if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien…” While there is clearly an extreme hardship available for persons with Cervantes’ specific ground of inadmissibility and qualifying immediate relative, the statute does not explicitly say what constitutes “extreme hardship,” much less how to evaluate a request for an extreme hardship waiver. Because of this, it is up to courts and immigration authorities to come up with a formula for evaluating requests for extreme hardship waivers which is consistent with the system of applicable immigration laws established by Congress. In this light, we can see why the BIA’s listing general factors that should be considered in evaluating all requests for extreme hardship waivers under INA § 212(i), and how they should be weighed, would be valuable for immigration adjudicators, attorneys, and immigrants who are considering asserting extreme hardship to a qualifying immediate relative on account of the immigrant’s removal. Furthermore, the BIA’s conclusions in precedent decisions are binding on all immigration adjudicators.

Important Notes from the Majority Opinion

First, the board found that Congress’ intent in codifying the extreme hardship waiver both in INA §§ 212(i) and 212(h) [parallel extreme hardship waiver for multiple criminal offenses, crimes of moral turpitude, possession of less than 30 grams of marijuana (murder and rape are not eligible for 212(h) waiver)] was that an alien should not be deported if his or her deportation would cause extreme hardship to a U.S. citizen or an LPR immediate relative.

Second, the board explained that extreme hardship is not a rigid concept which could simply be defined by regulatory language found in 8 C.F.R. § 1240.58,2 but rather that a determination whether a given alien ought to be granted an extreme hardship waiver should be made on a case-by-case basis. However, the BIA did find that while each extreme hardship claim should be considered on its own merits based upon the specific facts of the applicant and his or her qualifying relative, there are certain common factors which should generally be considered in evaluating extreme hardship claims:

Presence of qualifying relative’s family ties to the United States;
qualifying relative’s ties outside of the United States;
condition(s) in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to those countries;
financial impact of departure on the qualifying relative;
significant health conditions of the qualifying relative, especially when tied to the unsuitability of medical care in the country to which the qualifying relative would relocate.3

While the majority opinion noted that each of these factors may not apply equally in every case, it was clear that these are five general factors that should be looked at by judges in evaluating any extreme hardship claim.

The Concurrence/Dissent

In some court decisions, the reasoning in a concurring opinion or dissent may have a substantial long-term effect in its own right. Thanks to a powerful and well-reasoned opinion by then Board Member Lory Diana Rosenberg, concurring in part and dissenting in part with regard to Cervantes’ admissibility, Matter of Cervantes is one such case. One may reasonably argue that Judge Rosenberg’s opinion has provided even more guidance for how to evaluate extreme hardship claims than the decision of the Board. To start, the dissenting opinion provides a detailed portrait of the extreme hardship law at the time that Matter of Cervantes was being considered. Judge Rosenberg’s opinion paid special attention to extreme hardship cases considered by the United States Court of Appeals for the Ninth Circuit, which heard appeals from California where the Cervantes case originated, and the United States Supreme Court.

Judge Rosenberg took the position in her opinion that, when evaluating an extreme hardship claim, adjudicators should not base the decision solely on whether the situation involves any particular hardship factor(s). Instead, she wrote, the key consideration was whether the cumulative effect of all of the circumstances in the case, both positive and negative, weighs in favor of granting the hardship waiver. Judge Rosenberg agreed with the specific factors cited to by the majority in Cervantes. However, she felt that the list was unduly restrictive, and she listed several other factors that she believed adjudicators should consider when making hardship determinations. She drew several factors from published decisions of the United States Courts of Appeals for the Seventh and Ninth Circuits, stating that the majority should have considered these factors in the instant case. The following are the additional factors suggested by Judge Rosenberg:

Qualifying relative’s family ties within and without the United States and the impact of separation;
the economic and general conditions of the country to which the hardship waiver applicant would be returned to, and the effect following would have on the spouse;
the financial, emotional, cultural and political conditions of the country of return;
the ability to raise children and other quality of life factors in the country of return;
the qualifying relative’s length of residence in the United States;
the qualifying relative’s age, health, technical skills, employability, and other factors.4

Finally, Judge Rosenberg provided a powerful and important argument for why the failure to give proper weight, or any weight, to certain factors, while giving excessive weight to other factors, will invariably lead to arbitrary decisions that neither do justice to the claims of the applicant nor the system of immigration laws as a whole. Judge Rosenberg argued that if the majority had considered all of the factors in the case cumulatively, and weighed both positive factors and negative factors for the waiver request fairly, Cervantes would properly have been found to be admissible based on extreme hardship incurred by his wife if he were to be removed. Ultimately, Judge Rosenberg concluded that the majority had abused its discretion in not evaluating the factors cumulatively and in choosing to weigh certain factors against granting the waiver more heavily than factors that supported granting the waiver.

While Matter of Cervantes remains good law, much has changed in immigration law since 1999. As time has gone on, many of the arguments in Judge Rosenberg’s opinion have steadily gained support from immigration judges for evaluating extreme hardship claims.

Conclusion

Although many years have passed since Cervantes was decided, the reasoning in the decision is still extremely influential in evaluating eligibility for extreme hardship waivers.

Take for example an Administrative Appeals Office (AAO) decision in a 2008 case used as an example of Cervantes’ lasting influence by Julie C. Ferguson in “AILA’s Focus on Waivers Under the Immigration & Nationality Act,” Matter of [name and A-number redacted] (AAO Jan 9, 2008). In this case, the AAO relied upon factors articulated in Matter of Cervantes to overturn the denial of an application for an extreme hardship waiver under INA § 212(i) by the consular officer-in-charge in Athens, Greece based on extreme hardship that would be incurred by his wife in the event of his removal.5 The AAO determined that the applicant’s wife would face extreme hardship both if she were to remain in the United States and raise the couple’s child after the husband was deported to his native Lebanon, and if she were to join him in Lebanon.6 AAO considered a host of factors ranging from the wife’s history of depression, the couple’s son’s myriad health problems, and conditions in Lebanon (the AAO noted that the Department of State had issued an advisory against U.S. citizens traveling to Lebanon).7 In this case, we can see that the AAO weighed multiple factors from Matter of Cervantes, with special regard to the specific circumstances of the situation of the parties in this case, in ultimately deciding that the applicant’s wife would suffer extreme hardship in any scenario in which her husband was deported to Lebanon.

The above AAO case is just one of many cases where the factors enumerated in Matter of Cervantes guided the review of an extreme hardship waiver application. While the weight of common factors differs case to case depending on the specific circumstances of the extreme hardship waiver applicant and his or her qualifying relative, as well as on the ground of inadmissibility that the extreme hardship waiver is being sought for, the factors articulated in Matter of Cervantes provide a strong bedrock foundation for evaluating extreme hardship waiver requests.

  1. Link will direct you to the Matter of Cervantes decision. You can also download a PDF version of the decision available at http://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3380.pdf
  2. Regulations for immigration authorities evaluating extreme hardship with regard to suspension of deportation, which existed in immigration law prior to April of 1997. Note that Cervantes’ deportation proceedings commenced prior to that date.
  3. Paraphrasing the list from Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999) [The majority cited: “Jong Ha Wang v. INS, 450 U.S. 139 (1981); Gutierrez-Centeno v. INS, 99 F.3d 1529 (9th Cir. 1996); Shooshtary v. INS, 39 F.3d 1049 (9th Cir. 1994); Palmer v. INS, 4 F.3d 482 (7th Cir. 1993); Cerrillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987); Ramirez-Durazo v. INS, 794 F.2d 491 (9th Cir. 1986); Sanchez v. INS, 755 F.2d 1158 (5th Cir. 1985); Contreras-Buenfil v. INS, 712 F.2d 401 (9th Cir. 1983); Ramirez-Gonzalez v. INS, 695 F.2d 1208 (9th Cir. 1983); see also Matter of Pilch, 21 I&N Dec. 627 (BIA 1996); Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996); Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996); Matter of Ige, 20 I&N Dec. 880 (BIA 1994); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978)”].
  4. Paraphrasing the list from Judge Rosenberg’s opinion in Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999) [Judge Rosenberg cited: “Mejia-Carrillo v. United States, 656 F.2d 520 (9th Cir. 1981) (relating to consideration of noneconomic hardships resulting from removal); Ravancho v. INS, 658 F.2d 169 (3d Cir. 1981) (relating to consideration of psychiatric information); see also Tukhowinich v. INS, 57 F.3d 869 (9th Cir. 1995) (relating to consideration of respondent’s role as sole provider for her undocumented family here and abroad); Watkins v. INS, 63 F.3d 844 (9th Cir. 1995) (relating to consideration cumulatively of spouse’s hardship, fear of persecution, child’s inability to master a foreign language, and psychological factors); Salameda v. INS, 70 F.3d 447 (7th Cir. 1995) (relating to need to consider separation from community ties); Cerillo-Perez v. INS, 809 F.2d 1419 (9th Cir. 1987) (relating to consideration of hardship to other than qualifying family members)”]
  5. J. Ferguson, AILA’s Focus on Waivers Under the Immigration & Nationality Act (AILA 2008) 142, describing Matter of [name and A-number redacted] (AAO Jan 9, 2008), published on AILA InfoNet at Doc. No. 08011562 (posted Jan. 15, 2008)
  6. Ferguson 143, describing Matter of [name and A-number redacted] (AAO Jan 9, 2008), published on AILA InfoNet at Doc. No. 08011562 (posted Jan. 15, 2008)
  7. Id.

Resources and materials:

Ferguson, Julie C. AILA’s Focus on Waivers Under the Immigration & Nationality Act. Washington D.C. AILA Publications, 2008. 142-43, Print. ALIA’s Focus Series