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    “Extreme hardship” is an extremely important concept in immigration law which governs a range of reliefs that can be given by the Department of Homeland Security (DHS), immigration judges, Board of Immigration Appeals, and federal courts. Waivers of inadmissibility depend on the term being proven to cause such to certain qualifying U. S. citizen or permanent resident nuclear family members in situations relating to 3 and 10 year bars for staying illegally in the country for 180 days and one year respectively, fraud or misrepresentation, crimes involving moral turpitude, and even occasionally aggravated felonies. Currently U.S.C.I.S. is undergoing a review of the term and the various factors that should be considered for placement in its policy manual. Such review was undoubtedly spurred by DHS Secretary Jeh Johnson’s memorandum to U.S.C.I.S. Director Leon Rodriguez on November 20, 2014, the date of the President’s executive actions, “Expansion of the Provisional Waiver Program” in which he called for additional guidance over the meaning of the phrase “extreme hardship” to allow wider use of the I-601A program and for U.S.C.I.S. to think of criteria by which a presumption of extreme hardship could be made. In response, U.S.C.I.S. put out “Part B – Extreme Hardship Draft” in a “Draft USCIS Policy Manual, Volume 9: Waivers” for comment during the period from October 7, 2015 – November 23, 2015, and held a listening session on November 3, 2015, in which U.S.C.I.S representatives only gave a brief overview and opened up the telephone lines for comment without providing feedback.

    This is the opportunity for practitioners and others who may be affected by U.S.C.I.S.‘s ultimate position on the term in its policy manual to give input on the subject before the comment period closes. There appear to be 2 emails that can be used for this purpose. One was provided by U.S.C.I.S. on 10/7/15 as public.engagement@uscis.dhs.gov. The second was given at the listening session on 11/3/15 as OPE.feedback@uscis.dhs.gov. The subject line should be “Draft Policy Manual – Volume 9, Part B: Extreme Hardship (DRAFT)”. During this window of opportunity, all are encouraged to deliver comment on this important concept. Below please find our comment as example which was submitted to U.S.C.I.S. last week.

    From: Alan Lee, Esq.
    Sent: Friday, November 06, 2015 4:04 PM
    To: 'OPE.Feedback@uscis.dhs.gov'
    Subject: Draft Policy Manual – Volume 9, Part B: Extreme Hardship (Draft)

    Dear Sir/Madam:

    From reading the draft policy on extreme hardship, I have concerns relating to the portion making it implausible that a couple without a child will obtain a waiver and the draft’s failure to establish sets of circumstances under which extreme hardship would be presumed in such situation beyond two scenarios leading one to believe that other factual situations would be severely judged. The draft is the product of DHS Secretary, Jeh Johnson’s, memorandum to U.S.C.I.S. Director Leon Rodriguez on November 20, 2014, “Expansion of the Provisional Waiver Program” (part of the President’s Immigration Accountability Executive Action (IAEA) of November 20, 2014), in which he directed U.S.C.I.S. to issue new regulations and policies with respect to the use of the I-601A provisional waiver to all statutorily eligible applicants. It does not appear to comport with Secretary Johnson’s stated goals that “It is my assessment that additional guidance about the meaning of the phrase’ extreme hardship’ would provide broader use of this legally permitted waiver program” and “I further direct USCIS to consider criteria by which a presumption of extreme hardship may be determined to exist.” The draft policy would actually discourage wider use of the I-601A program.

    In the hypothetical case example on page 22, Scenario #1, the draft policy would not find extreme hardship to the qualifying relative as the factors would “include only common consequences of relocation” in a situation where there are no children involved, the alien entered without inspection 7 years ago, has been married to a U. S. citizen for 4 years, the wife is a sales clerk and a similar job in the country of relocation would pay far less, does not speak the foreign language, lacks experience in the country, and lacks the ties that would facilitate social and cultural integration and opportunities for employment. The alien is an unskilled laborer who would have a much lower salary in his own country.

    It does not appear to make sense that extreme hardship would not be found in this situation except if one is considering the hypothetical and its following U.S.C.I.S. analysis from a political viewpoint that the scenario could apply to a large number of Hispanics from Mexico and Central American countries whose spouses do not speak Spanish. Otherwise, why is it not extreme hardship if the U. S. citizen spouse in a loving bona fide marriage (I-130 already approved) of some duration will be forced to be a stranger in a strange land in which he or she would not be able to function well at all for lack of language and connections? This is also not a sojourn of small duration, as the bar for remaining illegally in the States in the U. S. for a year or more carries a 10 year penalty bar. In addition, where fraud or misrepresentation is found in a regular I-601 application, the bar has no time limit. The draft policy in this case belies one of its quotes of law on page 5, “At the same time, the hardship need not be unique” as a finding of no extreme hardship would only be based upon the commonality of the case rather than the extreme hardship associated with the situation regardless of the reasons given to justify denial.

    U.S.C.I.S. attempts to create an escape hatch in the hypothetical by prefacing the “generally would not favor a finding of extreme hardship” with the words “These facts alone.” But this does not work as the public and U.S.C.I.S. officers are then left with the question of what other facts than a child could influence the adjudication.

    I object to the bottom line being that a childless couple without more will generally not be given relief, that Scenarios #2 and 3 suggest relief where added factors are a child (#2) and LPR parents to the alien (#3), and that all other situations with other factors are left to the discretion of an adjudicating officer most likely disinclined to grant as the policy has already named two favorable situations for relief. What does this mean where those particular situations do not exist? Is a waiver application presumptively doomed to failure since U.S.C.I.S. already identified approvable situations? Will adjudicators and the public believe that the positing of acceptable hypotheticals creates a higher bar for the acceptance of other sets of facts? We believe that this perception even if unintended by the drafters will color the way in which applications are perceived. The result if left unaltered will offend Secretary Johnson’s wish for broader use of the I-601A since unclear and undefined factors are not conducive to the encouragement of broader use of the waiver provision. It is then left to applicants to guess what else could be important to a particular officer who will be using discretion to decide what constitutes extreme hardship given the vagueness of the guidance. These hypotheticals should be removed as they will- if kept in the final policy-dominate the discussion and adjudication of all such cases and leave to the discretion of each adjudicating officer what other factors are relevant since there is nothing further being offered here by U.S.C.I.S. If not removed, further language should be added to the effect that the hypotheticals are not to the exclusion of other approvable situations, and that the waiver provision should be generously interpreted. U.S.C.I.S. would not have to go far in justifying the latter approach, given that the cited waiver provisions, INA §§212(a)(9)(B)(v), 212(h)(1)(B), and 212(i)(1) are all pieces of remedial legislation, and the guiding principle has always been that such legislation is to be interpreted in the light to best assist the class of individuals that the legislation was meant to reach. Scott v. INS, 385 U. S. 214, 225 (1966); Costello v. INS, 376 U. S. 120, 128 (1964).

    Scenario #4 on page 23 presents the corollary situation of Scenario #2 minus a few years of U. S. presence and marriage to the U. S. citizen where the couple may choose to separate, and U.S.C.I.S.’s analysis again is that the facts alone generally would not favor a finding of extreme hardship, and that the aggregated hardships to the U. S. citizen include only common consequences-separation from the spouse and economic loss.

    Again everyone is left to guess what other facts for the childless couple could change a negative decision to a positive one. Since the starting point is the official U.S.C.I.S. presumption in both situations that a childless couple cannot obtain a waiver, an adjudicating officer cannot help but believe that he or she would have to be tremendously impressed by other facts to allow him or her to grant a waiver. And of course, this leaves it to the discretion of every officer to decide what will impress – how many years of marriage will ring a bell with the examiner, what weight to give psychological/psychiatric and doctors’ reports, factors to consider in evaluating the reports’ credibility if going behind their face, the effect of relatives in the U. S. on relieving hardship, effect of separation on the financial picture of the couple, whether the examiner thinks that letters from the community are relevant and if they are-how many, and whether notarized ones are required while those which are not are given no weight or little at all, etc. Here as in the other scenarios, U.S.C.I.S. must either remove hypothetical #4 or append the explanation that where other factors are present, immigration examiners should construe the waiver provision generously.

    The draft policy’s bottom line hypotheticals presuming waiver ineligibility for childless couples only promote a restrictive and not expansive interpretation and use of the I-601A waiver provision – a view antithetical to that of Secretary Johnson and the Administration as expressed in the Secretary’s memorandum to Director Rodriguez. Their removal or additional language to encourage adjudicators to generously interpret the waiver provision where additional facts are present is highly warranted.

    Very Truly Yours,

    Alan Lee, Esq.

    Alan Lee, Attorney at Law

    Reprinted with permission.

    About The Author

    Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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