Extreme Hardship
I.Introduction
This chapter will cover the definition of extreme hardship. The subject merits its own chapter because proving extreme hardship is essential towinning a provisional waiver case, and understanding how it is definedwill form the basis for your advising the client and preparing the case. We will cover how the term is interpreted by the U.S. Citizenship and Immigration Services (USCIS), the Board of Immigration Appeals (BIA), the Administrative Appeals Office (AAO), and the federal courts. We will also offer practical advice on how to satisfy the standard, because the term “extreme” can be intimidating. In practice, the USCIS approves waiver applicants that demonstrate rather “routine” hardship if they are welldocumented and well presented. In other words, the official standard is not as high as you might be led to believe if you relied solely on case decisions.
In this chapter we will offer a guide to evaluating the facts in your client’s case, determining which hardship factors to emphasize, and identifying the appropriate documentation to support each alleged hardship. How to obtain that documentation will be discussed further in a separate chapter. This will provide a structure that will hopefully make it easier to develop and package the waiver application. For example, we will stress not only identifying and prioritizing the possible waiver factors, but also applying their cumulative effect. Some waiver applications are based on one overwhelming hardship factor, but in most cases it is the combined effect of several factors that proves successful. Using examples, this chapter will focus on the five hardship factors most relevant for provisional waivers: health, financial, educational, personal, and country-specific (e.g., crime and safety in Mexico).In addition to summarizing and even including copies of some of the most often-cited administrative and judicial cases, we will provide an extreme hardship worksheet for use in client intake.
II.Extreme Hardship in Unlawful Presence Waivers
A.Qualifying Relatives in General
The extreme hardship standard is mandated by and set forth in INA § 212(a)(9)(B)(v). All applicants seeking to waive the three- or ten-year bar due to triggering unlawful presence must establish extreme hardship to a U.S. citizen or legal permanent resident (LPR) spouse or parent. This family member is known as a“qualifying relative.” Therefore, a precondition to filing the waiver is the existence of a particular family relationship; once that is established, the next step is showing that the qualifying relative will suffer extreme hardship if the applicant is not permitted admission to the United States. The standard for qualifying for the provisional waiver is even narrower, as we will describe next.
It is worth noting that U.S. citizen or LPR children are not included as qualifying relatives, nor is the waiver applicant or any other family member. As we will explain further, this does not mean that you will be ignoring the hardship they will suffer should the waiver be denied. Instead, you will need to funnel their hardship through the qualifying relative and make it part of his or her hardship. Show how hardship to the applicant or the applicant’s child will result in increased hardship to the qualifying relative. For example, the lack of health care in the foreign country to treat a child’s specific medical condition will result in greater stress and suffering to the qualifying relative parent if the family elects to move there. The same could be true for any other non-qualifying family member who will suffer more due to the absence of the waiver applicant. Identify and document that hardship and then explain how it will increase the hardship experienced by the qualifying relative.
Example: Rashid, a citizen of Pakistan, is filing a waiver application based on extreme hardship to his U.S. citizen wife Joan. They have a ten-year-old U.S. citizen daughter, Ellen. Joan is anxious and depressed about the thought of leaving the United States and relocating to Pakistan, a country she has never even visited. She is worried about many things: cultural and religious differences, availability of health care, social ostracism, the language barrier, and how they will earn a living. She has also read articles about attacks in Pakistan against young girls seeking an education. Joan is fearful that Ellen couldencounterviolence, diminished educational opportunities, and discrimination if Rashid's waiver is not granted and the family is forced to relocate to Pakistan. At the same time, Joan worries about the psychological effect on Ellen if they decide to remain in the United States and Rashid is forced to live in Pakistan for ten years. Ellen is very close to her father and is already exhibiting signs of anxiety and depression at the thought of her father’s leaving. Ellen is not a qualifying relative. However, Ellen's current and potential suffering impacts on Joan and is another basis for her argument that she will experience extreme hardship.
B.Qualifying Relative for Provisional Waiver
Eligibility for the provisional waiver is even narrower than it is for those filing for the “general” unlawful presence waiver under INA § 212(a)(9)(B)(v). The provisional waiverregulations definequalifying relative as the U.S. citizen spouse or parent of the waiver applicant.[1] The applicant's LPR spouse or parents do not qualify. This is significant, because many households contain LPR parents who could otherwise be considered in the extreme hardship calculation. It means that in most cases, U.S. citizen children petitioning for their parents will be unable to use the provisional waiver process. Under neither the general nor the provisional unlawful presence waiver process could the U.S. citizen child be considered a qualifying relative. But in the general process, the citizen child might first immigrate one parent who does not have an unlawful presence problem and then use that LPR parent as a qualifying relative in a waiver application filed by the other parent. This strategy would not work for the provisional waiver.
Example: Marisol is a citizen of Mexico who entered the United States without inspection. Luis is her LPR husband. Together they have a U.S. citizen son, Miguel. John’s I-130 on behalf of Marisol is approved, but Marisol will need a waiver of the unlawful presence ground of inadmissibility. John is not a qualifying relative for purposes of a provisional waiver because he is not a U.S. citizen. Miguel is about to turn 21 and can file an I-130 on behalf of his mother. But Miguel is not a qualifying relative under INA § 212(a)(9)(B)(v). The only way that the family can benefit from the provisional waiver process is for Luis to naturalize.
Example:Pedro, a U.S. citizen, wants to immigrate his parents. His father is living in Mexico City, but his mother has been residing here unlawfully for the past two years after she entered without inspection. Pedro would first like to immigrate his father, and then his mother, since she will face the unlawful presence bar upon leaving to consular process. But even when his father enters as an LPR, he would not be a qualifying relative on behalf of his mother’s provisional waiver application. In order to qualify for the provisional waiver, the father would first have to enter as an LPR and then naturalize five years later.
III.What Is Extreme Hardship
How has the term "extreme hardship" been defined? Establishing extreme hardship has beena requirement for many different immigration benefits and forms of relief. In addition to being a necessary element for various waivers of inadmissibility, including for fraud[2] and criminal conduct,[3] it is or was a requirement for suspension of deportation,[4]Nicaraguan Adjustment and Central American Relief Act (NACARA),[5]relief for self-petitioners under the Violence Against Women Act (VAWA),[6] and a waiver of the joint petition requirement for conditional residents.[7]Despite that prevalence in the immigration laws, the term "extreme hardship" is not defined in the statute or the regulations. Instead, the termremains purposefully fluid and vague. In the words of the BIA, it "is not a definable term of fixed and inflexible content or meaning."[8]But overthe course of more than four decades, the Immigration Service, the BIA, the AAO, and the federal courts have identified the elements of what this term means and have provided a framework for establishing a successful hardship claim.[9]
A.Extreme Hardship Factors
Because different sections of the immigration statute impose the same extreme hardship requirement, case law from other contexts – suspension of deportation decisions and other sections of the immigration statute – inform what the term means in a waiver of inadmissibility hardship claim.[10] The BIA in Matter of Cervantes-Gonzalezwhen comparing how the term should be defined for a fraud waiver with how it was interpreted for suspension cases noted that "we find the factors articulated in cases involving suspension of deportation and other waivers of inadmissibility to be helpful, given that both forms of relief require extreme hardship and the exercise of discretion."[11] Matter of Anderson,[12] the seminal extreme hardship case, dealt with eligibility for suspension of deportation and set forth the range of possible factors that the BIA examined to see if the applicant had satisfied the requirement. Suspension of deportation is no longer a defense to deportation under current immigration laws, but the requirement used to be that the applicant had to prove extreme hardship to himself or herself or to his/her U.S. citizen or LPR spouse, parent, or child. So the qualifying relatives are not the same as those for the unlawful presence waiver, but the factors the BIA enumerated are instructive, nevertheless. The Matter of Anderson factors include the following:
1) Applicant's age both at the time of entry and at the time of relief
2) Length of residence in the United States
3) Family ties in the United States and abroad
4) Health-related issues
5) Financial situation, including business or occupation
6) Possibility of other means of immigrating
7) Applicant's immigration history
8) Applicant's position in the community, and
9) Economic and political conditions in the applicant's home country.
One of theMatter of Anderson factors, the possibility of other means of adjusting status, is not directly relevant to a waiver application. A waiver applicant, in nearly all instances, has no means of adjustment of status unlessthe waiver is granted. Moreover, at least one circuit court has held that simply because there may be an alternative means of immigrating does not necessarily undercut the hardship to the qualifying relative.[13] That court found:"the sick parent or child who dies in the meantime, or the child who permanently loses the opportunity to receive special education or therapy during the critical years that it is needed will not experience a reduction in the hardship as the result of the applicant's eventual return."[14]
Case law following Matter of Andersonfurther developed and expanded these nineextreme hardship factors as they relate to other forms of relief.Additional relevant hardship factors include:
1) Ability to raise children if family members are not available to help[15]
2) Quality of life factors in the home country[16]
3) Educational opportunities for children who do not speak, read, write language[17]
4) Separation from family members, especially in single parent situations[18]
5) Separation from family members when qualifying relative was ill or elderly[19]
6) Significant health conditions when medical care was unavailable[20]
7) Violence, damage from civil war and disasters in home country[21]
8) Psychological impact including depression, trauma[22]
9) Political persecution[23]
10) Contributions to the community[24]
11) Acculturation and integration into U.S. society,[25] and
12) Severe personal consequences and non-economic hardship flowing from economic ones.[26]
Case law requires that each of these factors be analyzed in the context of the facts and circumstances specific to each case.[27]
Example.Carlos, a Mexican citizen, is married to Rosie, a U.S. citizen. The couple has two U.S. citizen children together. Carlosprovides great emotional, financial, and parental support to Rosie. During times when Carlos was absent, Rosie became depressed, experienced difficulty sleeping, and was unable to properly care for her children. A psychological report found that Rosie suffers from separation anxiety and is susceptible to depression. Carlos is an attentive father and the children would greatly miss him if he were required to leave and reside in Mexico for ten years. In the past when Carlos’s work took him away for long periods, their eldest son didn't eat well, became rebellious, and performed poorly at school. Rosie has no family in Mexico, but has strong family and community ties in the United States. She speaks very little Spanish. She has worked as a filing clerk at the same job for the past 16 years and worries about the poor employment opportunities she would experience in Mexico. Rosie is also worried about other things that would happen were she and the children to relocate to Mexico with Carlos: the reported violence in northern Mexico, where Carlos is from; the loss of health insurance for her children, which is currently paid for by her employer; the lower qualify of educational and health-care options; and the expected difficulty to adjusting to life in Mexico.
Facts similar to those in the above example were used in waiver case that was originally denied by the USCIS in Mexico but later approved by the AAO.[28] It is providedhere as an example to show the range of factors that typically comprise a waiver case, and how the applicant, Carlos, might be able to successfully establish extreme hardship to the qualifying relative, Rosie, in a provisional waiver application.
B.Extreme Hardship and Regulations
In addition to the hardship factors enumerated by the BIA, the AAO, and the federal courts, the agency has set forth factors that it will consider in determining whether an applicant for suspension of deportation or cancellation of removal under NACARA has satisfied the extreme hardship standard. These are enumerated in the regulations and consist of the following, many of which overlap with those discussed in case law:
1)Age of the applicant
2)Age, number, and immigration status of the applicant’s children and their ability to speak the native language of the foreign country and adjust to life there
3)Health conditions of the applicant or his spouse, parents, and children, and the availability of required medical treatment in the foreign country
4)Ability of the applicant to obtain employment in the foreign country
5)Length of residence in the United States
6)Family members residing in the United States and their immigration/citizenship status
7)Financial impact of the applicant’s departure
8)Disruption of educational opportunities
9)Psychological impact of the applicant’s departure
10)Current political and economic conditions in the foreign country
11)Family and other ties in the foreign country
12)Contributions to and ties to the community in the United States
13)Immigration history, and
14)Availability of other means of obtaining LPR status.[29]
The agency has expanded on this list to include abuse-related hardship factors for applicants for VAWA suspension of deportation or cancellation of removal:
1) The nature and extent of the physical or psychological consequences of abuse
2) The impact of loss of access to the U.S. courts and criminal justice system (including, but not limited to, the ability to obtain and enforce orders of protection, criminal investigations and prosecutions, and family law proceedings or court orders regarding child support, maintenance, child custody, and visitation)
3) The likelihood that the batterer's family, friends, or others acting on behalf of the batterer in the home country would physically or psychologically harm the applicant or the applicant's child(ren)
4) The applicant's needs and/or needs of the applicant's child(ren) for social, medical, mental health, or other supportive services for victims of domestic violence that are unavailable or not reasonably accessible in the home country
5) The existence of laws and social practices in the home country that punish the applicant or the applicant's child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household, and
6) The abuser's ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant and/or the applicant's children from future abuse.[30]
The hardship factors forVAWA-related cases, while not binding in non-VAWA cases, are still relevant in all waiver cases and should be included when they exist.
Example: Miriam, a citizen of Mexico, is married to John, a U.S. citizen. They reside together in Tucson withtheir one-year-old child. Miriam came to the U.S. to escape an abusive relationship with an ex-boyfriend, and she fears returning to Mexico where he continues to live. John has two children from a prior marriage and would be unable to financially support the children or meet his childcare obligations if he were to accompany Miriam to Mexico. John is also distraught that he would be subject to the drug-related violence that pervades Mexico.