Extreme hardship

Extreeme Hardship is a legal term in the Unites States of America's Immigration Law.

United States Immigration Law: Extreme Hardship

In U.S. Immigration law effects of certain grounds to deportability and inadmisability can be waved, [ [http://en.wikipedia.org/wiki/United_States_Waiver_of_Inadmissibility] ] under the discretion of the USCIS adjudicator or immigration court. Several wavers are available by the statute of immigration codes while some other require showing "extreme hardship" potentially caused to a qualifying family member (the US citizen or legal permanent resident's close relatives) of the defendant (person excluded from admission or being removed).

Note that the hardship to the defendant is not relevant here, only the hardship caused to the qualifying family by removing the defendant or excluding him from admission. The wavers are govenred by INA 212 and INA 237 (potentially some others: add?). The United States Waiver of Inadmissibility application [ (I-601 [http://en.wikipedia.org/wiki/United_States_Waiver_of_Inadmissibility] ) ] is required for INA 212 wavers, while INA 237 wavers do not have such application.

Controversy

The term "extreme hardship" does not mean "extreme" in the common sense of the word. The US law perceives normal, usual effects of deportation or inadmissability as not "extreme". So separation of parents and small children, loss of employment or residence, uprooting of family are not considered "extreme", contrary to the apparent perception about US being family oriented and having human face government or laws. Following this line of thought, if suicide was a common effect of deportation, it would be considered "normal".

Here is a quote from BIA (Board of Immigration Appeals) rejecting appeal of a waver:

"U.S. court decisions have repeatedly held that the common results of deportation or exclusion are insufficient to prove extreme hardship. See Hassan v. INS, 927 F.2d 465, 468 (9th Cir. 1991). For example, Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), held that emotional hardship caused by severing family and community ties is a common result of deportation and does not constitute extreme hardship. In addition, Perez v. INS, 96 F.3d 390 (9th Cir. 1996), held that the common results of deportation are insufficient to prove extreme hardship and defined extreme hardship as hardship that was unusual or beyond that which would normally be expected upon deportation. Hassan v. INS, supra, held further that the uprooting of family and separation from friends does not necessarily amount to extreme hardship but rather represents the type of inconvenienceand hardship experienced by the families of most aliens being deported. The AAO recognizes that the applicant's spouse and/or children would likely endure hardship as a result of separation from the applicant.

However, their situation, if they remain in the United States, is typical to individuals separated as a result of deportation or exclusion and does not rise to the level of extreme hardship.

Qualifying Family Member

There are two levels of qualifying family members, depending on what grounds the waver is for.

In case of INS 212(i) or 237 (other?):
*US citizen or LPR parents
*US citizen or LPR spouse

Additionally, in case of 212(h) wavers
*US citizen or LPR children

The hardship caused to children is not considered at all for certain types of wavers due to the presumption that "merely breading on US soil does not allow one any claims to US citizenship".

Notes

External links

* [http://en.wikipedia.org/wiki/United_States_Waiver_of_Inadmissibility Waver of inadmisability (I-601) application] .
* [http://www.usdoj.gov/eoir/vll/intdec/vol22/3380.pdf Matter of Cervantes (good explanation of extreme hardship in the case law)] .
* [http://en.wikipedia.org/w/index.php?title=%22extreme_hardship%22&action=edit&redlink=1 BIA decision stating that family separation does not constitute extreme hadship] .
* [http://www.ilw.com/articles/2007,0717-scott.shtm Article explaining the levels of "hardship"] .