'Extreme Hardship' Need Not Be So Extreme Under USCIS Policy Guidance

By Dan Cadman on October 28, 2016

Law360 posted an item the other day with this teaser:


USCIS Unveils Guidance on Extreme Hardship Determinations

U.S. Citizenship and Immigration Services on Friday released policy guidance on extreme hardship determinations regarding certain relatives, making good on one of the lesser known initiatives announced under President Barack Obama's executive actions on immigration.

Extreme hardship is an important principle in immigration law, because the statute provides waivers of inadmissibility for certain aliens who can establish that their removal/denial of admission would result in such hardship to certain categories of U.S. citizen or resident alien family members.


The Immigration and Nationality Act (INA) says this at Sections 212(h) and (i) (codified at 8 U.S.C. § 1182(h) and (i)):


The Attorney General may, in his discretion, waive the application of [the respective grounds of inadmissibility for each of these waiver provisions]...in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.


Example: an alien who is inadmissible/removable for having committed certain crimes is father to a minor child with renal disease who requires frequent dialysis, which would be unavailable or outside the alien's financial reach in his country of nationality. This is a near no-brainer. The waiver of the grounds of inadmissibility (if they are covered by the waiver) will almost certainly be granted — even if the child's treatment is now being taken care of via taxpayer resources because the family is un- or under-insured. I raise this last point not to be callous but to point out that such decisions are not made in a vacuum. There is rarely unmitigated and unambiguous good to be achieved when adjudicating such waivers, since the whole basis of the adjudication is because the alien's past is checkered enough to require the waiver to begin with.

But it's also worth pointing out that many, perhaps most, requests for waivers based on "extreme hardship" don't meet the bright-line test so handily as the hypothetical I've just laid out.

The changes incorporated into the guidance were previously announced by USCIS in a memorandum including the draft language, soliciting public comment. Presumably having considered the comments, the language has now been solidified and finalized. Because my curiosity was piqued enough by the Law360 teaser, I went to the USCIS website to see exactly what kind of guidance is now being given to its adjudicating staff where waivers based on extreme hardship are concerned.

I can't say I was surprised; the Obama administration has had seven-plus years now to weave its progressive open-borders-agenda magic in this and many other areas of immigration law that are technical enough not to draw much attention outside a few policy wonks and practitioners such as members of the private bar, who of course are happy to see definitional and guidance boundaries expanded. I was, though, taken aback by what I would charitably describe as "definition creep" in the way the agency is choosing to construe the plain words of the statute. Here are just a few of the eyebrow-raisers I found:

In the "Factors and Considerations for Extreme Hardship" table of the guidance, under "Economic Impact", we find these clues as to whether an adjudicator should determine that extreme hardship exists:

  • Qualifying relative's need to be educated in a foreign language or culture
  • Economic and financial loss due to termination of a professional practice;
  • Decline in the standard of living, including high levels of unemployment, underemployment, and lack of economic opportunity in country of nationality.

Are these items truly so onerous as to constitute "extreme" hardship? I have my doubts. Many people relocating abroad, for instance to take a job they desire, find that they and their families need to develop new language skills and broader cultural horizons. This is neither unique nor extreme, nor even undesirable. Likewise, employees relocating at an employer's insistence to a new job locale, even within the United States, may find that they lose money on sale of a home, given the collapsed real estate market that never fully recovered from the Great Recession. And decline in the standard of living is certainly a strong possibility, given the great wealth of the United States compared with most of the world — but that is true of virtually every alien and family facing repatriation.

What exactly makes these things "extreme" as compared with the plight of other removable aliens similarly situated? If they are indistinguishable, how can they be a basis to grant a waiver (which should be the extraordinary exception, not the rule)?

In fact their very enumeration seems to be in conflict with the textual narrative, which says,

The common consequences of denying admission, in and of themselves, do not warrant a finding of extreme hardship. The Board of Immigration Appeals ( BIA ) has held that the common consequences of denying admission include, but are not limited to, the following:
  • Family separation;

  • Economic detriment;

  • Difficulties of readjusting to life in the new country;

  • The quality and availability of educational opportunities abroad.


What, then, are we to make of this double-talk in the official policy guidance?

Under "Country Conditions", also in the "Factors and Considerations for Extreme Hardship" table, adjudicating officers are urged to consider, among other things the existence of State Department travel advisories, which consist of alerts and warnings. Alerts are usually of a more transitory nature (for instance, emanating from acts of God such as hurricanes, earthquakes, etc.); warnings on the other hand caution American citizens that life or property may be at risk in certain areas of the globe, often from terrorism or conflict. But given the unsettled nature of the world, the list is quite extensive at any point in time.

There is a great deal of narrative discussion of the usefulness of State Department travel advisories. I don't completely discount their utility in arriving at a decision, but think that utility has been vastly overplayed in the policy guidance to once again ensure that, as often as possible, adjudicators "get to yes". Consider: If an alien principal and his family risk repatriation to a state where ethnically, culturally, linguistically, and religiously they are virtually indistinguishable from the indigenous population, do they really face the same risk as most American citizens who might be considering travel to the area? I think probably not.

Finally, I note that the guidance now "[c]larifies that factors, individually or in the aggregate, can be sufficient to meet the extreme hardship standard." (Emphasis added.)

Think of it this way: No single family member exhibits sufficient hardship as to be described as extreme, and therefore there is no "extreme hardship" wall of sufficient size to act as a legal impediment to removing the alien. What to do? Deny the waiver? Well no, of course not. The guidance is telling adjudicators to see if they can build that wall with enough small pebbles aggregated from all of the family members. But that is not what the law specifies.

Let's be direct: Being denied to right to live or remain in the United States will inevitably incur hardships, and not just to the principal alien at the center of the case, but also to his or her family. That's unfortunate but to be expected, and is a consequence of the principal having engaged in conduct in the first place that rendered him or her inadmissible.

The law has made clear that waivers should be granted only on the basis of extreme hardship, which in ordinary usage it's fair to say stops just short of the "exceptional and extremely unusual hardship" end of the spectrum that is the standard applied to cancellation of removal. Yet what I see happening is an attempt by the administration, using policy guidance in a bureaucratic handbook for USCIS adjudicators, to fit ordinary and expected hardships into the definition of extreme using artful language.

As we shift into the final months of the Obama White House, watch for more high jinks and regulatory, definitional, or policy sleight of hand where immigration is concerned, because you can bet solid money on this administration putting as many worms into the apple as they possibly can before decamping.