EXTREME HARDSHIP. HOW EXTREME IT REALLY IS?
Extreme Hardship is an important concept to know and understand since many benefits, including those which can serve as defenses to removal or deportation are based on some degree of extreme hardship.
OVERVIEWThe 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.
DEGREES OF EXTREME HARDSHIPThe 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.Fraud and misrepresentations waivers are addressed in INA ?212(i), and also use the same standard of extreme hardship. Suspension of Deportation (former deportation proceedings) relief used the same standard of extreme hardship, and so still does the special Cancellation of Removal relief for battered spouses.
CANCELLATION OF REMOVALBy contrast, Cancellation 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 Cancellation of Removal could be granted by an immigration judge as a matter of discretion.