Comments on the Draft Policy Recommendation (Vol. 9, Part B, Extreme Hardship)

Prepared for USCIS

By David North on October 30, 2015

October 30, 2015

From: David North, Fellow, Center for Immigration Studies

Re: Comments on the Draft Policy Recommendation (Vol. 9, Part B, Extreme Hardship)

On behalf of the Center for Immigration Studies, a Washington, D.C.-based research and policy organization, I wish to make three sets of comments:

  • First, on the immigration context in which these decisions will be made, including the number of aliens already admitted to this country generally, and in particular those we admit because we regard them as victims of some kind, and thus deserving of special treatment;
  • Second, the strange concept of a benefit based on an "extreme hardship" of a specific citizen or permanent resident alien outliving the death of the person bearing the hardship; and
  • Third, the fundamental question of who will decide these issues: Congress, representing the people of the United States, or individual immigration judges and other federal officials.

Context. For the last 90-plus years the Congress of the United States has decided, time and again, that most immigration to the United States must, except under very special circumstances, be numerically limited. It is obvious, or should be, to one and all that a very large portion of the world's population — certainly hundreds of millions of people — would like to migrate to the United States if they could. It should be equally obvious that we could not absorb such numbers and remain a nation that would be anything like the one we all live in today.

We are admitting or adjusting more than one million legal immigrants every year; these are in addition to the admissions of hundreds of thousands of nonimmigrants, many of whom tend not to return to their home countries. All of these are supplemented by generous helpings of illegal immigrants, with the total non-authorized population routinely estimated to be in the 11 to 12 million range. In short, we already have an extremely generous immigration policy and the proposed changes would make it even more so.

What is usually forgotten is that about one out of every six immigrants admitted or adjusted each year are in one of the 10 categories (and some 70 subcategories) of victims of some kind or another.1 There are refugees, asylees, crime victims, abused spouses, and even (hard though this is to believe) abused step-parents of citizens. These are individuals who, in the eyes of the immigration authorities, though perhaps not in the words in the law and regulations, personally and directly bear "extreme hardships" of some kind. What we are discussing today is the admission of persons whose non-admission, or non-adjustment, would cause an indirect "extreme hardship" on a U.S. resident.

More specifically, the "extreme hardship" benefit is potentially available to those who have applied for an immigration benefit/legal status, but who are ineligible for some reason. The largest number of people in this category (and the presumed intended target of the policy revision) are those who have been sponsored by a family member, but who cannot adjust status because they are here illegally and thus are subject to the 3/10-year bar. There are hundreds of thousands of illegal aliens in this category. They can apply for a waiver, but to get the waiver they have to show that a U.S. citizen or permanent resident would suffer "extreme hardship" if the applicant could not get the benefit sought. My suspicion is that the administration wants to rig it so that large numbers of aliens in this category can secure benefits through the watering down of the "extreme hardship" requirement.

It is within this context that the "extreme hardship" definition should be handled with great care, if changed at all. My recommendation is that the proposed changes be dropped.

The Ghostly Benefit. On p. 11 of the proposed Policy Manual there is this sentence: "Thus a foreign national who meets the requirements of INS 204 (l) may continue to apply for the waiver even though the qualifying relative has died."

This makes no sense at all. The reason for the waiver is to make it possible for the alien to relieve the citizen or resident (the qualifying relative) of an "extreme hardship." If that relative dies, then the hardship has disappeared, and so should the waiver.

Like many Americans I am a diabetic. If the logic for the continuation of a waiver after the relative's death were to be applied to my body after my death, but before burial, then my corpse would get daily insulin shots while lying in the funeral home.

Who Decides? If this re-definition of "extreme hardship" were to impact a handful of people then there would be no question that individual federal officials should be assigned the task. But this is potentially — given the way this administration works, as in the case of DACA — an instance in which perhaps hundreds of thousands of otherwise illegal immigrants will be regarded as eligible for benefits, through decisions made by individual federal officials.

If the administration wants to legalize their presence, it should ask that Congress make this decision.

1 For more on this subject, see my blog "Numerous Classes of Victims Secure Admission to the U.S."