In order to procure certain waivers or other forms of immigration relief, an alien may be required to establish that a qualifying relative would incur “extreme hardship” were the applicant to be denied relief.
What is Extreme Hardship?
In order to procure certain waivers or other forms of immigration relief, an alien may be required to establish that a qualifying relative would incur "extreme hardship" were the applicant to be denied relief. In limited cases, the alien may be permitted to satisfy the extreme hardship requirement by establishing that he or she would incur extreme hardship upon removal.
Forms of Immigration Relief that Require Showing of Extreme Hardship
The following is a list of forms of immigration waivers and immigration relief that require the establishment of extreme hardship or a related form of hardship:
- A waiver of the 3- or 10-year bar of inadmissibility for the accrual of unlawful presence requires that the waiver applicant establish that his or her U.S. citizen or lawful permanent resident (LPR) spouse or parent would incur extreme hardship were he or she to be denied admission. See INA 212(a)(9)(B)(v).
- INA 212(h)(1)(B) provides for a waiver for several types of criminal grounds of inadmissibility. In order to obtain a section 212(h) waiver, the applicant must establish that his or her U.S. citizen or LPR spouse, parent, or child would incur extreme hardship if the applicant is denied admission. However, if the criminal offense that caused the inadmissibility was of a violent or dangerous nature, the applicant must meet a higher standard of "exceptional and extremely unusual hardship."
- INA 212(i)(1) provides for a waiver for certain types of immigration fraud or misrepresentation. In order to procure a section 212(i) waiver, the applicant must establish that his or her U.S. citizen or LPR spouse or parent would incur extreme hardship were the applicant to be denied admission. If the applicant who is seeking relief is a Violence Against Women Act (VAWA) self-petitioner, the applicant may satisfy the requirement by establishing extreme hardship either to applicant or to a parent or child.
- INA 216(c)(4) allows for the Attorney General to remove conditions on permanent residency for an alien who obtained conditional permanent resident status without meeting the generally applicable requirements for the removal of conditions. INA 216(c)(4)(A) and (C) require that the alien establish that he or she would incur extreme hardship if removed, but the circumstances causing such hardship must have occurred during the conditional permanent residency period.
- In order to be eligible for NACARA cancellation of removal or suspension of deportation, the applicant must establish that applicant's removal would result in extreme hardship either to the applicant or to a U.S. citizen or LPR spouse, parent, or child.
- In order to be eligible for non-LPR cancellation of removal under INA 240A(b)(1), the applicant must establish that the applicant's removal would result in "exceptional and extremely unusual hardship" to a U.S. citizen or LPR spouse, parent, or child.
- In order to be eligible for special rule cancellation of removal as a battered spouse or child (VAWA cancellation of removal), the applicant must establish that either the applicant or his or her parent or child would incur extreme hardship. The factors causing the hardship may be particular to the abuse.
- Under INA 212(e), a certain J1 exchange visitors may obtain a waiver of the two-year foreign residency requirement by establishing that applicant's U.S. citizen or LPR spouse or child would incur "exceptional hardship."
- Under INA 101(a)(15)(T)(i)(IV), an applicant for T visa status as a victim of trafficking must demonstrate that he or she would suffer extreme hardship involving unusual and severe harm upon removal.
Extreme Hardship Factors
The most important administrative precedent for immigration extreme hardship is the Board of Immigration Appeals' (BIA) decision in the Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999). The decision addressed extreme hardship factors in the section 212(i) context, but its principles are generally applicable to all extreme hardship determinations. The Board listed the following factors that should generally be considered in making an extreme hardship determination (paraphrased):
- Presence of qualifying relative's family ties to the United States;
- Qualifying relative's ties outside of the United States;
- Conditions of country where qualifying relative would relocate if the applicant is removed;
- Financial impact of the departure of the qualifying relative; and
- Significant health conditions of the qualifying relative.
Furthermore, the dissenting opinion in the Cervantes offered further factors that are also considered in extreme hardship cases (paraphrased):
- 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 waiver applicant would be returned, and the effects of following on the qualifying relative;
- 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, skills, and employability as well as any other relevant factors.
It is important to remember that each case is unique. The factors that may or may not be relevant in a given case will depend on its facts. Accordingly, a determination will be made based on the totality of the circumstances. Furthermore, merely demonstrating that the applicant (note that Cervantes addressed INA 212(i), which does not consider hardship to the applicant or to his or her child, whereas certain other forms of waivers and relief do allow such hardship to be considered) or his or her qualifying relative would incur extreme hardship is necessary, but not sufficient, for establishing eligibility for relief. For example, in the INA 212(i) context, an applicant may meet the extreme hardship requirement, but the negative effects of his or her fraud or misrepresentation or other negative factors may nevertheless result in discretion being exercised against granting the waiver.
Victims of Violence
Certain persons seeking waivers as victims of violence or serious crimes may upon factors particular to their abuse in seeking an extreme hardship waiver.
For example, an applicant for T visa status must demonstrate that he or she would suffer "extreme hardship involving unusual and severe harm upon removal." While this standard is higher than regular "extreme hardship," the applicant may appeal to factors particular to being a victim of a severe form of human trafficking in satisfying the burden of proof.
VAWA-self petitioners may also appeal to factors relating to harm incurred from their abuse in establishing the requisite extreme hardship. For example, in the special rule cancellation of removal context, special factors that may be considered are the physical and psychological consequences of the abuse to the applicant and the effect on the applicant of the loss of access to U.S courts and the criminal justice system were the applicant to be removed.
Higher Hardship Standards
Cancellation of removal for non-LPRs requires that the applicant meet a higher bar of proof of "exceptional and extremely unusual hardship" in order to be granted relief. Certain convictions for violent or dangerous criminal activities trigger this standard in the INA 212(h) context as well. In the Matter of Recinas, 23 I&N Dec. 467, 470 (BIA 2002), the Board granted cancellation of removal to an applicant based on extreme hardship to her U.S. citizen children. The Board held that the applicant met her burden for a variety of reasons including that her children would be unable to adjust to life in the country of return, they were reliant on the applicant for support, the applicant's mother (a U.S. citizen) who helped her support the children would not relocate, and the applicant would likely be unable to obtain status in the United States subsequent to her removal.
If an alien is seeking a waiver or other form of immigration relief, it is important to consult with an experienced immigration attorney. When the establishment of some form of extreme hardship is required, an experienced immigration attorney will be able to assess the situation and determine whether it will be possible to compile evidence to make a compelling case toward satisfying the requirement.
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