Extreme Hardship

I. Introduction

This chapter will cover the definition of extreme hardship. The subject merits its own chapter because proving extreme hardship is essential to winning a provisional waiver case, and understanding how it is defined will form the basis for your advising the client and preparing the case. We will cover how the term is interpreted by the U.S. Citizenship and Immigration Services (USCIS), the Board of Immigration Appeals (BIA), the Administrative Appeals Office (AAO), and the federal courts. We will also offer practical advice on how to satisfy the standard, because the term “extreme” can be intimidating. In practice, the USCIS approves waiver applicants that demonstrate rather “routine” hardship if they are well documented and well presented. In other words, the official standard is not as high as you might be led to believe if you relied solely on case decisions.

In this chapter we will offer a guide to evaluating the facts in your client’s case, determining which hardship factors to emphasize, and identifying the appropriate documentation to support each alleged hardship. How to obtain that documentation will be discussed further in a separate chapter. This will provide a structure that will hopefully make it easier to develop and package the waiver application. For example, we will stress not only identifying and prioritizing the possible waiver factors, but also applying their cumulative effect. Some waiver applications are based on one overwhelming hardship factor, but in most cases it is the combined effect of several factors that proves successful. Using examples, this chapter will focus on the five hardship factors most relevant for provisional waivers: health, financial, educational, personal, and country-specific (e.g., crime and safety in Mexico). In addition to summarizing and even including copies of some of the most often-cited administrative and judicial cases, we will provide an extreme hardship worksheet for use in client intake.

II. Extreme Hardship in Unlawful Presence Waivers

A. Qualifying Relatives in General

The extreme hardship standard is mandated by and set forth in INA § 212(a)(9)(B)(v). All applicants seeking to waive the three- or ten-year bar due to triggering unlawful presence must establish extreme hardship to a U.S. citizen or legal permanent resident (LPR) spouse or parent. This family member is known as a “qualifying relative.” Therefore, a precondition to filing the waiver is the existence of a particular family relationship; once that is established, the next step is showing that the qualifying relative will suffer extreme hardship if the applicant is not permitted admission to the United States. The standard for qualifying for the provisional waiver is even narrower, as we will describe next.

It is worth noting that U.S. citizen or LPR children are not included as qualifying relatives, nor is the waiver applicant or any other family member. As we will explain further, this does not mean that you will be ignoring the hardship they will suffer should the waiver be denied. Instead, you will need to funnel their hardship through the qualifying relative and make it part of his or her hardship. Show how hardship to the applicant or the applicant’s child will result in increased hardship to the qualifying relative. For example, the lack of health care in the foreign country to treat a child’s specific medical condition will result in greater stress and

suffering to the qualifying relative parent if the family elects to move there. The same could be true for any other non-qualifying family member who will suffer more due to the absence of the waiver applicant. Identify and document that hardship and then explain how it will increase the hardship experienced by the qualifying relative.

Example: Rashid, a citizen of Pakistan, is filing a waiver application based on extreme hardship to his U.S. citizen wife Joan. They have a ten-year-old U.S. citizen daughter, Ellen. Joan is anxious and depressed about the thought of leaving the United States and relocating to Pakistan, a country she has never even visited. She is worried about many things: cultural and religious differences, availability of health care, social ostracism, the language barrier, and how they will earn a living. She has also read articles about attacks in Pakistan against young girls seeking an education. Joan is fearful that Ellen could encounter violence, diminished educational opportunities, and discrimination if Rashid's waiver is not granted and the family is forced to relocate to Pakistan. At the same time, Joan worries about the psychological effect on Ellen if they decide to remain in the United States and Rashid is forced to live in Pakistan for ten years. Ellen is very close to her father and is already exhibiting signs of anxiety and depression at the thought of her father’s leaving. Ellen is not a qualifying relative. However, Ellen's current and potential suffering impacts on Joan and is another basis for her argument that she will experience extreme hardship.

B. Qualifying Relative for Provisional Waiver

Eligibility for the provisional waiver is even narrower than it is for those filing for the “general” unlawful presence waiver under INA § 212(a)(9)(B)(v). The provisional waiver regulations define qualifying relative as the U.S. citizen spouse or parent of the waiver applicant.1 The applicant's LPR spouse or parents do not qualify. This is significant, because many households contain LPR parents who could otherwise be considered in the extreme hardship calculation. It means that in most cases, U.S. citizen children petitioning for their parents will be unable to use the provisional waiver process. Under neither the general nor the provisional unlawful presence waiver process could the U.S. citizen child be considered a qualifying relative. But in the general process, the citizen child might first immigrate one parent who does not have an unlawful presence problem and then use that LPR parent as a qualifying relative in a waiver application filed by the other parent. This strategy would not work for the provisional waiver.

Example: Marisol is a citizen of Mexico who entered the United States without inspection. Luis is her LPR husband. Together they have a U.S. citizen son, Miguel. John’s I-130 on behalf of Marisol is approved, but Marisol will need a waiver of the unlawful presence ground of inadmissibility. John is not a qualifying relative for purposes of a provisional waiver because he is not a U.S. citizen. Miguel is about to turn 21 and can file an I-130 on behalf of his mother. But Miguel is not a qualifying relative under INA § 212(a)(9)(B)(v). The only way that the family can benefit from the provisional waiver process is for Luis to naturalize.

Example: Pedro, a U.S. citizen, wants to immigrate his parents. His father is living in Mexico City, but his mother has been residing here unlawfully for the past two years after she entered without inspection. Pedro would first like to immigrate his father, and then his mother, since she will face the unlawful presence bar upon leaving to consular process. But even when 1 8 CFR § 212.7(e)(3)(vii).

his father enters as an LPR, he would not be a qualifying relative on behalf of his mother’s provisional waiver application. In order to qualify for the provisional waiver, the father would first have to enter as an LPR and then naturalize five years later.

III. What Is Extreme Hardship

How has the term "extreme hardship" been defined? Establishing extreme hardship has been a requirement for many different immigration benefits and forms of relief. In addition to being a necessary element for various waivers of inadmissibility, including for fraud2 and criminal conduct,3 it is or was a requirement for suspension of deportation,4 Nicaraguan Adjustment and Central American Relief Act (NACARA),5 relief for self-petitioners under the Violence Against Women Act (VAWA),6 and a waiver of the joint petition requirement for conditional residents.7 Despite that prevalence in the immigration laws, the term "extreme hardship" is not defined in the statute or the regulations. Instead, the term remains purposefully fluid and vague. In the words of the BIA, it "is not a definable term of fixed and inflexible content or meaning."8 But over the course of more than four decades, the Immigration Service, the BIA, the AAO, and the federal courts have identified the elements of what this term means and have provided a framework for establishing a successful hardship claim.9

A. Extreme Hardship Factors

Because different sections of the immigration statute impose the same extreme hardship requirement, case law from other contexts – suspension of deportation decisions and other sections of the immigration statute – inform what the term means in a waiver of inadmissibility hardship claim.10 The BIA in Matter of Cervantes-Gonzalez when comparing how the term should be defined for a fraud waiver with how it was interpreted for suspension cases noted that "we find the factors articulated in cases involving suspension of deportation and other waivers of inadmissibility to be helpful, given that both forms of relief require extreme hardship and the exercise of discretion."11 Matter of Anderson,12 the seminal extreme hardship case, dealt with eligibility for suspension of deportation and set forth the range of possible factors that the BIA 2 INA § 212(i).

3 INA § 212(h).

4 Former INA § 244(a)(1996).

5 Pub. L. No. 105-100, tit. II, 111 Stat. 2160, 2193–201 (1997), as amended.

6 INA § 204(a)(1)(A), (B).

7 INA § 216(c)(4)(C).

8 Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999); Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964).

9 See, e.g., Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996); Matter of L-O-G-, 21 I&N Dec. 413 (BIA 1996); Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

10 Matter of Kao & Lin, 23 I&N Dec. 45, 49 (BIA 2001).

11 Matter of Cervantes-Gonzalez, supra.

examined to see if the applicant had satisfied the requirement. Suspension of deportation is no longer a defense to deportation under current immigration laws, but the requirement used to be that the applicant had to prove extreme hardship to himself or herself or to his/her U.S. citizen or LPR spouse, parent, or child. So the qualifying relatives are not the same as those for the unlawful presence waiver, but the factors the BIA enumerated are instructive, nevertheless. The Matter of Anderson factors include the following:

1) Applicant's age both at the time of entry and at the time of relief2) Length of residence in the United States3) Family ties in the United States and abroad4) Health-related issues5) Financial situation, including business or occupation6) Possibility of other means of immigrating7) Applicant's immigration history8) Applicant's position in the community, and9) Economic and political conditions in the applicant's home country.

One of the Matter of Anderson factors, the possibility of other means of adjusting status, is not directly relevant to a waiver application. A waiver applicant, in nearly all instances, has no means of adjustment of status unless the waiver is granted. Moreover, at least one circuit court has held that simply because there may be an alternative means of immigrating does not necessarily undercut the hardship to the qualifying relative.13 That court found: "the sick parent or child who dies in the meantime, or the child who permanently loses the opportunity to receive special education or therapy during the critical years that it is needed will not experience a reduction in the hardship as the result of the applicant's eventual return."14

Case law following Matter of Anderson further developed and expanded these nine extreme hardship factors as they relate to other forms of relief. Additional relevant hardship factors include:

1) Ability to raise children if family members are not available to help15

2) Quality of life factors in the home country16

3) Educational opportunities for children who do not speak, read, write language17

4) Separation from family members, especially in single parent situations18

5) Separation from family members when qualifying relative was ill or elderly19

12 Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).

13 Arteaga de Alvarez v. Holder, 2012 U.S. App. LEXIS 26364 (9th Cir. December 29, 2012).

14 Id. at (pg 9 -- need final publication for page)

15 Matter of Recinas, 23 I&N Dec. 467, 470 (BIA 2002) (BIA considered that the non-citizen depended on her legal resident mother to assist her in the care of her U.S. citizen children).

16 Matter of Cervante-Gonzalez, supra at 566. (BIA noted that quality of life factors were relevant to the extreme hardship inquiry).

17 Matter of Recinas, 23 I&N Dec. 467, 470 (BIA 2002) (BIA considered whether the U.S. citizen children were able to read, write and speak in the language of the country of deportation).

6) Significant health conditions when medical care was unavailable20

7) Violence, damage from civil war and disasters in home country21

8) Psychological impact including depression, trauma22

9) Political persecution23

10) Contributions to the community24

11) Acculturation and integration into U.S. society,25 and12) Severe personal consequences and non-economic hardship flowing from economic

ones.26

18 Matter of Recinas, 23 I&N Dec. 467, 470 (BIA 2002) (BIA considered the fact that the U.S. citizen children were entirely dependent upon the noncitizen because the parents were divorced and the father was not involved in their care).

19 Mendez v. Holder, 566 F.3d 316, 322 (2d Cir. 2009) ("Petitioner's daughter suffers from severe asthma. Petitioner testified that she has about twenty-five asthma attacks a year and that her condition requires the use of a home nebulizer as well as an inhaler. She also requires regular visits to the emergency room for serious attacks…. Petitioner's son was diagnosed with Grade II Vesicoureteral Reflux. This disease causes urine to reflux from the bladder back  [**5] to the kidneys and liver, causing staph infections, scarring, and tissue damage. Ultimately, the condition can lead to kidney or liver failure.”).

20 Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999) (BIA reviewed expanded hardship factors following Matter of Anderson in 212(i) waiver application.).

21 Matter of L-O-G, 21 I&N Dec. 413, 420 (BIA 1996) (“Nicaragua is an extremely poor country, still in political turmoil, with a shattered economy, very high unemployment and minimal government.”).22 Lam v. Holder, 698 F.3d 529, 534 (7th Cir. 2012) ("Lam submitted a letter from his wife's psychologist, who stated that Ms. Lin suffered from ‘severe’ postpartum depression and that she was ‘truly psychologically unable to care fully’ for their children. Her psychologist also stated that Lam's removal would place Ms. Lin 'in extreme psychological distress.'"); Ravancho v. INS, 658 F.2d 69 (3rd Cir. 1981) (“[p]sychological trauma may be a relevant factor in determining whether a United States citizen child will suffer ‘extreme hardship’ within the statute.”).

23 Gutierrez-Centeno v. INS, 99 F.3d 1529, 1534 (9th Cir. 1996) (“Gutierrez and her family have had a history of conflict with the Sandinistas. In light of the political instability in Nicaragua and the power which the Sandinistas continued to wield after the election of the Chamorro government, the political situation in Nicaragua is also a factor that should have been considered. See In re O-J-O, 1996 WL 393504, at 5 (‘In light of the respondent's family's history of conflict with the Sandinistas, the current political situation in Nicaragua should be factored into the hardship assessment.’)"; Blanco v. INS, 68 F.3d 642, 646 (2d Cir. 1995) (“incidents of violence that have been and would be directed at her in El Salvador. Her affidavit in support recounted the killing of her common-law husband, her father, and her uncle; the murder of a neighbor; threats against her by guerrillas; injury to her child from a bomb blast outside her home; and child kidnapping from a school attended by one of her children. This evidence was relevant to a claim of hardship more personally directed and more severe than the claim that might be made by any deportee to such a strife-torn nation.”).

24 Urbina-Osejo v. INS, 124 F.3d 1314, 1318-19 (9th Cir. 1997) (“Urbina worked as a volunteer telephone counselor for the San Francisco Aids Foundation, teaching AIDS prevention to Spanish-speaking callers.”); Matter of O-J-O, 21 I&N Dec. 381 (BIA 1996) (“He is deeply involved in church activities, attending services regularly and serving as a voluntary deacon in his congregation….The hardship related to community involvement, however, derives from the loss of the personal and social bonds established during the course of such activities.”).

Case law requires that each of these factors be analyzed in the context of the facts and circumstances specific to each case.27

Example. Carlos, a Mexican citizen, is married to Rosie, a U.S. citizen. The couple has two U.S. citizen children together. Carlos provides great emotional, financial, and parental support to Rosie. During times when Carlos was absent, Rosie became depressed, experienced difficulty sleeping, and was unable to properly care for her children. A psychological report found that Rosie suffers from separation anxiety and is susceptible to depression. Carlos is an attentive father and the children would greatly miss him if he were required to leave and reside in Mexico for ten years. In the past when Carlos’s work took him away for long periods, their eldest son didn't eat well, became rebellious, and performed poorly at school. Rosie has no family in Mexico, but has strong family and community ties in the United States. She speaks very little Spanish. She has worked as a filing clerk at the same job for the past 16 years and worries about the poor employment opportunities she would experience in Mexico. Rosie is also worried about other things that would happen were she and the children to relocate to Mexico with Carlos: the reported violence in northern Mexico, where Carlos is from; the loss of health insurance for her children, which is currently paid for by her employer; the lower qualify of educational and health-care options; and the expected difficulty to adjusting to life in Mexico.

Facts similar to those in the above example were used in waiver case that was originally denied by the USCIS in Mexico but later approved by the AAO.28 It is provided here as an example to show the range of factors that typically comprise a waiver case, and how the applicant, Carlos, might be able to successfully establish extreme hardship to the qualifying relative, Rosie, in a provisional waiver application.

B. Extreme Hardship and Regulations

In addition to the hardship factors enumerated by the BIA, the AAO, and the federal courts, the agency has set forth factors that it will consider in determining whether an applicant for suspension of deportation or cancellation of removal under NACARA has satisfied the extreme hardship standard. These are enumerated in the regulations and consist of the following, many of which overlap with those discussed in case law:

1) Age of the applicant

25 Ramos v. INS, 695 F.2d 181, 184 (5th Cir. 1983) ("[his] speech, choice of toys, knowledge, and interest were typical of American boys . . . . [His] choice of toys and drawings were typical of American children. . . . He would be particularly vulnerable to a move at this age because he is just now developing relationships outside the home . . . . Once a child has adopted the culture of a country he is subject to rejection by peers if he is forced to readjust to the new culture. The child at age six and onward is particularly vulnerable to this."26 Tukhowinich v. INS, 64 F.3d 460, 464 (9th Cir. 1995) (“Because the loss of financially comparable employment would create not only an economic hardship for Ms. Tukhowinich but would severely frustrate what she regards as the overriding mission in her life – to provide for her parents and siblings – we think the BIA should have considered the implications of her economic loss.”).

27 Jara-Navarrete v. INS, 813 F.2d 1340 (9th Cir. 1987); Zavala-Bonilla v. INS, 730 F.2d 562 (9th Cir. 1984); Ramos v. INS, 695 F.2d 181 (5th Cir. 1983); Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964).

28 AAO Decision, Mexico City, Mexico, March 26, 2012. The AAO found that the applicant established extreme hardship.

2) Age, number, and immigration status of the applicant’s children and their ability to speak the native language of the foreign country and adjust to life there

3) Health conditions of the applicant or his spouse, parents, and children, and the availability of required medical treatment in the foreign country

4) Ability of the applicant to obtain employment in the foreign country

5) Length of residence in the United States

6) Family members residing in the United States and their immigration/citizenship status

7) Financial impact of the applicant’s departure

8) Disruption of educational opportunities

9) Psychological impact of the applicant’s departure

10) Current political and economic conditions in the foreign country

11) Family and other ties in the foreign country

12) Contributions to and ties to the community in the United States

13) Immigration history, and

14) Availability of other means of obtaining LPR status.29

The agency has expanded on this list to include abuse-related hardship factors for applicants for VAWA suspension of deportation or cancellation of removal:

1) The nature and extent of the physical or psychological consequences of abuse

2) The impact of loss of access to the U.S. courts and criminal justice system (including, but not limited to, the ability to obtain and enforce orders of protection, criminal investigations and prosecutions, and family law proceedings or court orders regarding child support, maintenance, child custody, and visitation)

3) The likelihood that the batterer's family, friends, or others acting on behalf of the batterer in the home country would physically or psychologically harm the applicant or the applicant's child(ren)

4) The applicant's needs and/or needs of the applicant's child(ren) for social, medical, mental health, or other supportive services for victims of domestic violence that are unavailable or not reasonably accessible in the home country

5) The existence of laws and social practices in the home country that punish the applicant or the applicant's child(ren) because they have been victims of domestic violence or have taken steps to leave an abusive household, and

29 8 CFR § 1240.58(b).

6) The abuser's ability to travel to the home country and the ability and willingness of authorities in the home country to protect the applicant and/or the applicant's children from future abuse.30

The hardship factors for VAWA-related cases, while not binding in non-VAWA cases, are still relevant in all waiver cases and should be included when they exist.

Example: Miriam, a citizen of Mexico, is married to John, a U.S. citizen. They reside together in Tucson with their one-year-old child. Miriam came to the U.S. to escape an abusive relationship with an ex-boyfriend, and she fears returning to Mexico where he continues to live. John has two children from a prior marriage and would be unable to financially support the children or meet his childcare obligations if he were to accompany Miriam to Mexico. John is also distraught that he would be subject to the drug-related violence that pervades Mexico.

These facts formed the basis for a waiver application that was originally denied by the USCIS in Mexico, but which was granted by the AAO on appeal. 31 The decision reflects the sensitivity of the agency to domestic violence claims.

C. USCIS Instructions on Extreme Hardship Factors and Provisional Waiver

The instructions to the provisional waiver application, Form I-601A, summarize the hardship factors and distill them into five categories. [confirm on Monday] These are the same categories that the USCIS has been using for almost a decade when it has been advising applicants and issuing requests for more documentation to evidence extreme hardship in waiver cases. The hardship factors that the USCIS will consider can be categorized as follows:

1) Health-related factors – such as ongoing or specialized treatment required for a physical or mental condition; availability and quality of such treatment in the foreign country; anticipated duration of the treatment; chronic vs. acute conditions; long-term vs. short-term condition

2) Financial considerations – such as future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children with special needs; cost of care for family members (elderly and sick parents)

3) Education-related factors – such as loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time or grade; availability of special requirements, such as training programs or internships in specific fields

4) Personal considerations – such as close relatives in the United States and country of birth or citizenship; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States, and30 8 CFR § 1240.58(c).

31 AAO Decision, Ciudad Juarez, March 6, 2012. The AAO found that the applicant established extreme hardship.

5) Special factors – such as cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access (or lack of access) to social institutions or structures (official or unofficial) for support, guidance, or protection.32

These five hardship categories encompass the numerous factors enunciated in BIA and federal court cases. Rather than limiting the more detailed hardship factors described BIA and federal court cases, the hardship factors specified in the provisional waiver instructions condense the factors into five discrete groups. We will discuss each of these five groups in greater detail. But it is important to remember the significance of their cumulative effect.

D. Ordinary Hardship Insufficient

Extreme hardship means something more than the ordinary hardship one would suffer in being separated from family members or from a country and lifestyle to which one has become accustomed.33 The difference in economic standards that exists between the United States and Mexico or other Latin American countries is not enough to establish extreme hardship to the applicant. Specifically, economic hardship and loss alone are not sufficient to support a finding of extreme hardship.34

For example, a claim of difficulty in finding employment and inability to find employment in a chosen trade or profession will not be sufficient to prove extreme hardship without other hardship factors.35 In Matter of Cervantes-Gonzalez, the BIA rejected the hardship claim and commented that neither the waiver applicant nor his wife had any real financial ties to the U.S. because the wife was unemployed and the applicant was an unsuccessful musician in a band. 36 However, economic hardship may be sufficient where other hardship factors are implicated and where there is a complete inability to find work.37

Similarly, the fact that an applicant will be required to readjust to life in his or her home country after residing in the U.S. is not a factor that, in and of itself, will be found to constitute

32 USCIS, Instructions for Application for Provisional Unlawful Presence Waiver, Form I-601A, rev. ____, 2013.

33 Matter of Pilch, 21 I&N. Dec. 627, 631 (BIA 1996)

34 Palmer v INS, 4 F.3d 482, 488 (7th Cir. 1993);

35 Hernandez-Patino v. INS, 831 F.2d 750, 754 (7th Cir. 1987) (Petitioner “claims he would not be able to secure steady employment other than subsistence-level seasonal sharecropping.”).

36 Matter of Cervantes-Gonzalez, supra at 568.

37 Urban v. INS, 124 F.3d 644, 648 (7th Cir. 1997) (“However, in light of Urban's age and alleged health problems, the Board's failure to consider her total inability to find employment is quite troubling.”); Santana-Figueroa v. I.N.S., 644 F.2d 1354, 1357 (9th Cir. 1981) (“In a country with widespread poverty, complete inability to find work can have exceptionally severe personal and noneconomic consequences. For an aged person with no means of support but his own labor, the consequences may include untreated illness, malnutrition or starvation. These bleak prospects cannot rationally be said to fall short of extreme hardship in all cases simply because they are traceable to "economic" causes.”)

extreme hardship.38 Without more, mere “readjustment” is considered to be the kind of hardship suffered by anyone who has spent time abroad.

In addition, reduced or educational opportunities and medical facilities alone will not be sufficient to establish extreme hardship. In Matter of Kim, the BIA weighed the reduced medical and educational opportunities the U.S. family members would face in Korea against the fact that the parents had been “able to obtain college educations in Korea, to learn English, and to come to the United States and adapt to life here; there is no reason to believe that their children will not be able to do the same.”39 Diminished educational opportunities and medical facilities without other strong hardship factors did not tip the scales toward a finding of extreme hardship.

D. Factors Considered Cumulatively

The USCIS will consider any of the five factors that are alleged in a provisional waiver application, as well as their cumulative effect.40 Because a hardship determination requires the review of specific circumstances, an evaluation of hardship can only be made if those circumstances are actually considered. 41 The hardship assessment is predicated on a properly focused factual inquiry into all the hardships claimed by the petitioner.42 The adjudicator must provide more than a cursory, generalized review of each hardship claim.

The BIA has consistently stressed the combined nature of these factors: “Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.”43 Although a particular hardship factor may not be extreme when considered on its own, in combination with other factors, the hardship faced by the qualifying relative may become extreme. An INS General Counsel memo on extreme hardship in the battered spouse context notes that “[f]actors which may not alone be determinative should be considered, and may become a significant or even critical factor when weighed with all the other circumstances presented.”44 An applicant’s inability to reside in the United States may have a ripple effect that causes hardship to many aspects of the qualifying relatives’ lives. The range of consequences, both small and large, must be evaluated in their totality in an extreme hardship evaluation.45

38 Matter of Ige, supra at 883.

39 Matter of Kim, 15 I&N Dec. 88, 90 (BIA 1974).

40 Salameda v. INS, 70 F.3d 447, 449-50 (7th Cir. 1995).

41 Santana-Figueroa v. INS, 644 F.2d 1354, 1357 (9th Cir. 1981).

42 Jara-Navarrete v. INS, supra at 1342.

43 Matter of Ige, 20 I&N Dec. 880 (BIA 1994).

44 INS General Counsel’s Office, Memo from Paul W. Virtue, “’Extreme Hardship’ and Documentary Requirements Involving Battered Spouse and Children” (August 16, 1998).

45 Matter of O-J-O, supra at 383, quoting Matter of Ige, 20 I&N Dec. at 882, (“The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships

Example: Priya, a citizen of India, came to the United States in 2009, flying first from India to Mexico and entering the United States without inspection. In 2010 she married U.S. citizen George, who owns a modest restaurant that the couple operates together. George has diabetes and depends on Priya to run the restaurant whenever he is not feeling well. Priya is from a small village in the Punjab where her family still resides. Her family pooled money together to enable her to come to the United States after she was abused by a wealthy landowner in her village. George is anxious and depressed about Priya’s history of abuse and the possibility that she will have to return there. He is currently taking medication to deal with insomnia. He has lived his whole life in Winesburg, Ohio, where his parents and siblings also reside. The couple has a one-year old daughter, Ritu. Priya is eligible to file for the provisional waiver for unlawful presence.

She can employ all of the five factors to support her hardship claim. The potential extreme hardship to her husband as a result of her absence would touch on all of the following: his health and psychological state; the financial difficulties that would result; the loss of economic opportunities for Ritu; his family ties here and the other personal factors; and the social conditions in India that forced Priya to leave. While none of these factors may be compelling in isolation, when taken together they are likely to constitute extreme hardship.

E. Analysis of the Five Factors

Let us examine the five factors in greater detail and provide ideas to consider when developing the theory of your client’s case. We will discuss specific documents to obtain in a separate chapter. The unpublished AAO decisions can be illuminating, and therefore we are providing summaries or appropriate quotes from cases that deal with each of these five factors.

1. Health-Related Factors

The strongest waiver applications include health-related factors, so start with an examination as to whether any of them exist in your client’s family. These could include serious medical conditions, physical or mental disabilities, psychological abnormalities, or relatively minor and treatable conditions. They could be suffered by the qualifying relative – the U.S. citizen spouse in most cases – or the child, parent, or other family member. As we have stressed before, make sure you channel the hardship through the qualifying relative. The U.S. citizen parent needs to indicate how he or she would suffer if the child/parent/sibling in turn would suffer due to the waiver applicant’s absence.

Common health-related conditions include heart disease, strokes, cancer, diabetes, high blood pressure, lack of mobility, allergies, and physical disabilities. Chronic health-related afflictions pose stronger hardships than acute ones, which flare up and then subside. In the same way, long-term ones are stronger than short-term. Common mental or psychological conditions include Alzheimer’s and other forms of senility, depression, anxiety, schizophrenia, and bipolar disorder. Ask your client for a description of all illnesses or health-related problems in the family, no matter how minor. It may take some investigation and follow-up questioning to uncover them.

takes the case beyond those hardships ordinarily associated with deportation.”)

It is very important to discuss the health-related problem in layman’s terms. When possible, break down medical jargon into simple words through use of examples. Describe how the health-related problem affects the family member in a typical day or in their performing a typical task.

It is also very important to describe how the qualifying relative’s anticipated absence will make the health-related problem worse. It is not enough to state that the qualifying relative suffers from a heart condition; explain how the applicant’s departure and extended absence will aggravate the problem. Include documentation about the availability of treatment facilities and affordable medication in the foreign country where the family member would reside. This will be covered in greater detail in a separate chapter.

Example: “The applicant's older daughter's physician states in a November 10, 2008 letter that [the older daughter] was diagnosed with eczema and asthma and she requires bronchodilators and preventative medication. He states that she was hospitalized in October 2008. The applicant's older daughter's physician states that a prolonged separation from her father could make her vulnerable to more frequent and severe asthma exacerbations. The record includes a psychological evaluation of the applicant's spouse, dated December 16, 2009, which reflects that she is suffering from Major Depressive Disorder with accompanying features of Anxiety. Several family and friends of the applicant's spouse have detailed the emotional difficulty that she is experiencing.”46

Example: “The AAO finds the psychological report demonstrates the applicant's spouse has inadequate coping skills and stressful situations negatively contribute to mental and emotional well-being. The record allows us to find that her separation from the applicant has pushed her into a mental state in which she cannot function well and care for her children.”47

In both AAO decisions above, the psychological well-being of the qualifying relative is considered significant factors, in combination with other health-related factors. The waiver applications in both cases contained psychological evaluations that identified the mental condition. The first example also included a doctor’s letter verifying ongoing treatment for eczema and asthma that required bronchodilators and preventative medication, and stated that separation from the waiver applicant could result in additional and more severe asthma episodes.

Psychological reports can play an important role in establishing and verifying anticipated hardship. Most practitioners steer clients to psychologists they have worked with in the past who know the type of issues you need addressed. Most U.S. citizen spouses will experience anxiety and depression, or both, at the thought of their partner leaving the country for an extended period of time. The challenge is to show how this reaction is different or more severe than that experienced by others. While we do not want to discourage you from using this type of evidence, we do want to point out that a report based on a single visit of an hour or less may not carry much weight with the

46 AAO Decision, Ciudad Juarez, pg. 5, March 28, 2012. The AAO found that the applicant established extreme hardship.47 AAO Decision, Mexico City, pg. 5, March 26, 2012. The AAO found that the applicant established extreme hardship.

adjudicator. The strongest reports and applications indicate a history of psychological problems or treatment so that the applicant’s absence would aggravate a pre-existing condition.

2. Financial Considerations

You should be able to identify financial hardship in every waiver case. These could include the following: anticipated loss of job by the applicant or the qualifying relative, or both; re-employment at a reduced salary; sale of business, house, and other property; loss of health insurance coverage; increased costs due to relocation; travel costs by the qualifying relative to visit the applicant; additional child care costs resulting from loss of the applicant; additional education-related costs in the foreign country; and additional costs in providing care to elderly parents. The possible financial factors will depend on the particular facts in your client’s case, but make sure you explore and identify all of them. As in all waiver applications, include the costs that would result if the qualifying relative remained in the United States and those if he or she accompanied the applicant to the foreign country.

Be detailed and include a budget showing current revenue and expenses. Don’t just submit bills; itemize all major financial costs and forms of income. Then explain and demonstrate how the family would be unable to meet expenses or would suffer financially due to the applicant’s absence. This will be covered further in a separate chapter. The Board has favored applicants who have not amassed savings or who do not have substantial equity in a house or other property they will be selling. Credit card or other debt is viewed as a positive factor. Qualifying relatives who have had to rely on public assistance or church hand-outs after the applicant has departed were viewed as sympathetic cases. With provisional waiver applications, speculate how the qualifying relative would be able to care for himself or herself without the applicant’s financial support, and indicate the potential need and eligibility for Food Stamps, Temporary Assistance for Needy Families, or other federal or state needs-based assistance programs.

Example: “The applicant's spouse asserts that without her husband's additional income, it is harder for her to meet all the household obligations and payments. See Letter from ___ dated July 27, 2007. The applicant's spouse states that living on one income is a hardship and that she has had to consider selling or renting out their home. See Letter from ___ dated March 11, 2008. The applicant submitted several household bills from his time of residence in the United States, but there is no evidence in the record concerning the applicant's spouse's income or the extent of her current financial obligations. Further, there is no indication that the applicant's spouse is past due in any of her payments or' otherwise unable to meet her financial obligations. The applicant's spouse further states that her husband has been unable to find employment in Mexico because he does not have education beyond the sixth grade. See Letter from ___ dated October 12, 2009. The record does not contain any information concerning country conditions in Mexico, including the area where the applicant resides. There is no indication as to whether the applicant's spouse would be able to find employment if she relocated to Mexico. It is noted that there is no evidence in the record concerning with whom the applicant resides and the extent of his financial obligations in Mexico, especially in light of his unemployment in Mexico."48

48 AAO Decision, Mexico City, pg. 5, January 17, 2012. The AAO found that the applicant’s evidence was insufficient to establish extreme hardship.

Example: “Asserting economic hardship, the applicant's spouse states that a reduction in his weekly work hours from 40 to 32 "in the last 4 or 5 months," has resulted in “an extreme economic situation." See Hardship Letter 2, dated October 26, 2009. A Letter from ___ dated October 14, 2009, asserts that the applicant "started having some financial difficulty" about a year ago resulting in his "having to get advancements" on his paychecks. ___ lists six dates between December 23, 2008 and October 14, 2009 on which she asserts the applicant's spouse received advances. Id. The applicant's spouse states that he cannot buy food for his two children in the U.S. and his wife and child in Mexico. See Hardship Letter 2, dated October 26, 2009. He states that the $150 he sends to Mexico every other week pays only for his spouse and daughter's food and utilities, and he cannot afford to send his daughter to school there. Id. Western Union Transfer Receipts, various dates, showing transfers of $150 from the applicant to the applicant's spouse, have been submitted in support. The record contains no documentary evidence showing the combined income of the couple before the applicant departed to Mexico or applicant's past or prospective future earnings. With regard to expenses, partial billing statements have been submitted for a personal loan, credit card, and telephone service. See Partial Billing Statements, various dates. While the statements are incomplete, it appears that only one account has a past due balance, in the amount of $58.17. See AT&T Statement, dated August 19, 2009. Three International Bank of Commerce Statements, for the same account, dated June, September and October 2009, show an overdraft balance of an average of $287. And a Letter From_ dated September 17, 2009, asserts "Your child's amount due has been paid or a scheduled payment has begun." The "charge" listed is $250 for a "broken display." Id. While these documents are helpful in showing some of the applicant's spouse's expenses, they paint an incomplete picture as to the entirety of the household income verses expenses related to separation from the applicant. The applicant's spouse stated in an earlier letter that he has hardship raising his daughters alone, having to pay childcare and leave work early to pick them up from school. See Hardship Letter 1, undated. The AAO recognizes that the applicant's spouse has taken on an added financial burden by sending support to Mexico for his wife and daughter in addition to his expenses at home. The difficulties described, though not insignificant, do not take the present case beyond those hardships ordinarily associated with the inadmissibility of a family member.”49

In these AAO decisions, the evidence of the financial and economic considerations were dismissed as insufficient to show that the hardships faced by the qualifying relative demonstrated extreme hardship. Instead the AAO found that the circumstances were simply “common” results of a finding of inadmissibility – not extreme hardship.

In the first example, the AAO focused on the lack of evidence beyond the letters from the applicant’s spouse, relatives and employers. Although the record in the case included financial documents and bills, the AAO decision is dissatisfied with these documents and complains that there is no evidence about employment possibilities in the area where the applicant resides in Mexico, the extent of financial responsibilities in Mexico, or the income of the applicant’s spouse. Without evidence from a medical professional, the decision seems to ignore the spouse’s statement that she was taking medication due to her feelings of defeat and despair because of the applicant’s absence.

49 AAO Decision, Mexico City, January 25, 2012, pg. 5. The AAO found that the applicant had not established extreme hardship.

In the second example, the AAO wanted to see documentary evidence showing the combined income of the couple before the applicant departed to Mexico, the applicant's past or prospective future earnings, and more evidence of overdue bills.

3. Educational Factors

In every case where you have a child or children, you are likely to have educational hardship. Most of these anticipated hardships will be due to the child’s accompanying the applicant to the foreign country. Typical hardships could include the child’s lack foreign language ability, loss of grade, poorer quality of education in the foreign country, lack of access to tutors, lack of access to special education, loss of potential internship or externship programs. But educational hardship could also result if the child is going to remain in the United States. These could include the inability to afford private school, or after-school educational counseling for special needs, or tutors.

The educational hardships may also be experienced by adults, who are in college, in training programs, are working on advanced degrees, or were planning to take advantage of internship programs.

Example: “The applicant's spouse has asserted that she is raising her and the applicant's two children by herself and that she has been unable to continue her college education as she had dreamed. It is reasonable to acknowledge that there will be some degree of impact from having to assume additional parenting duties, but the record does not distinguish the impact on the applicant's spouse from the impacts commonly experienced by relatives of inadmissible family members who remain in the United States. Further, her inability to pursue a college education is not considered an uncommon impact.”50

Example: “The applicant provided evidence of the qualifying spouse's past enrollment in community college. The qualifying spouse also indicates that she had to quit school after the applicant left for financial reasons.” 51

In the above AAO decisions, education-related hardship to the qualifying relative is quickly rejected. It appears that these two AAO cases include little if any objective evidence about education in the applicant’s home country. In addition, these AAO decisions fail to consider a comparison with educational opportunities in the foreign country, the disruption of the qualifying relative’s current program, or the difficulty of pursuing education in a foreign language or culture.

Other AAO decisions refer briefly to the loss of educational opportunities for the applicant’s children and immediately dismiss such claims, noting that children are not considered qualifying relatives. Remember to funnel the anticipated hardship to the child through the qualifying relative. Have the qualifying relative explain how he or she would suffer watching her child be disadvantaged due to receiving a poorer quality education. A separate chapter will provide tips for documenting

50 AAO Decision, Mexico City, pg. 5, November 22, 2011. The AAO found that the applicant had not established extreme hardship.

51 AAO Decision, Mexico City, pg. 5, December 15, 2011. The AAO found the applicant had not established extreme hardship.

educational hardship. The loss of educational opportunities to U.S. citizen children of the qualifying relative often results in financial, emotional, and psychological hardship to the qualifying relative. Reports that document access to education in the foreign country, the cost of education in the foreign country, the number of high school and college graduates in the foreign country, the availability of scholarships and internships in the foreign country can bolster the case.

4. Personal Factors

Personal factors could include a range of issues specific to the qualifying relative, the applicant, and their family members. The agency typically looks to issues such as the following: how long the couple has known each other; how long they have been married; how many family members they have in the United States and their citizenship and immigration status, especially the family in the foreign country; where these family members reside and how often they interact with the qualifying relative; existence of elderly parents who rely on the care provided by the qualifying relative or the applicant; involvement in the community, such as church, school or sports clubs; and the age of the qualifying relative. It is taken as a given that the older the qualifying relative the harder it will be to adjust to life in a foreign country or life without the applicant.

Be creative, since the list is by no means exhaustive. In documenting these personal factors, you will be relying on statements in the declarations of the applicant and qualifying relative, in addition to letters or statements from other family members, friends, neighbors, employers, teachers, and church or civic leaders.

Example: “The applicant's spouse is the custodian for her grandson due to the mental health condition of her own daughter and that based on this the applicant's spouse would experience extreme hardship upon relocation and separation. Counsel asserts that, upon relocation the applicant's spouse would experience hardships due to her age and that relocation would be additionally burdensome because she is the custodian for her grandchild. He explains that the applicant's spouse would have to give up her career in the United States and would be separated from her other daughters and grandchildren.”52

Example: “The qualifying spouse has lived in the United States her entire life and has close family ties to the United States, including her parents, siblings and friends. The record contains several letters indicating the closeness of the qualifying spouse’s relationships with her friends and family and the importance of her relationships, in light of the mental and medical issues that she suffers.”53

These two AAO decisions looked at the personal considerations: the loss of personal relationships and separation from family members flowing from the denial of a waiver of inadmissibility. In both of these cases, hardship based on personal considerations was one of 52 AAO Decision, Bloomington, MN, pg. 4, March 26, 2012. The AAO found that the applicant established extreme hardship.

53 AAO Decision, Denver, CO, pg. 5 October 25, 2011. The AAO found that the applicant had established extreme hardship.

several factors considered. These cases also demonstrated significant medical hardship, both physical and psychological, to the qualifying relative. In addition, the applicants in both cases provided strong supporting documentation including letters from family members, medical records and doctors’ letters, and in the case of the grandmother who had custody of her grandchild, court records awarding custody.

5. Special Factors

Special factors typically look to country conditions – political, financial, cultural, religious, and even environmental. How strong is the central government? Can the police or security forces protect the safety of its citizens? Would religious customs and requirements make it difficult for someone from another faith to be accepted? Has a recent environmental disaster made life there a challenge?

With Mexican provisional waivers, the attention will be on the drug-related violence in that country, particularly in the northern border states. Unlike in asylum cases, where the applicant must show a well-founded fear of persecution throughout the country, the waiver applicant has the choice of where he or she will reside. It is the conditions in that specific locale that are important. Applications that indicate high levels of violence, mortality, or lawlessness in the particular city or state where the applicant intends to reside have resulted in favorable decisions. As described a separate chapter, it is more effective to submit articles, reports, or declarations detailing the violence in the region where the applicant lives or intends to live, rather than general country condition reports.

Example: “Occasions [when] she visited the applicant in Honduras she and her daughter became ill with parasites due to unsanitary conditions in the country; that she will not be able to help her mother and the rest of her family from Honduras; that she will not find employment in Honduras because her Spanish is not good enough and she does not speak their dialect, that she and her family will live in extreme poverty; and that it will be difficult for her to adjust socially. The applicant's spouse also states that she fears for her and her daughter's lives in Honduras because of crime, including gang violence. The AAO notes that Honduras has been designated as a Temporary Protected Status (TPS) country based on extensive damage to the country caused by natural disasters, and its designation as such does not expire until January 5, 2012. Based on the designation of TPS for Hondurans, the United States is not returning Hondurans to Honduras, and when added to the normal hardships created by relocation, establishes extreme hardship.”54

Example: “The record supports that the applicant's spouse has significant family ties in the United States, and that she does not have family ties in Pakistan. The AAO can also accept that she does not speak the language of Pakistan and would experience some cultural challenges upon relocation. The AAO will give due consideration to these common impacts when determining overall hardship upon relocation. Although the AAO recognizes that Pakistan is not a western country and that its primary religion is Islam, general materials on national human rights statistics are not enough to demonstrate that a qualifying relative will experience discrimination or be a victim of religious crime simply because they do not adhere to Islam. Nonetheless, the AAO will give some consideration to the fact that the applicant's spouse has 54 AAO Decision, Tegucigalpa, Honduras, pg. 6, September 1, 2011. The AAO found that the applicant had established extreme hardship.

resided in the United States for a significant period of time and that relocating to Pakistan would pose a cultural challenge to her.”55

In the first AAO decision, the AAO not only carefully considered the special country condition factors, such as gang violence in Honduras, but also noted that country’s TPS designation. The United States already recognizes the hardship of returning an individual to Honduras in light of the natural disasters of the recent past. On the other hand, in the second AAO decision, the AAO acknowledges the religious, cultural, and language barriers to the qualifying relative’s adjustment to life in Pakistan while subsequently discarding the importance of these hardship factors.

IV. Discretionary Factors

Do not forget to address the discretionary factors in your client’s case; these are often unrelated to the extreme hardship factors. Every AAO decision discusses whether the applicant has met this burden, assuming he or she has established extreme hardship. They can often tip the balance in either direction: strong cases can lose if negative discretionary factors are not addressed, and borderline cases can turn into approvable ones by stressing the positive factors.

Based mostly on AAO decisions, we have compiled a list of both the positive and negative factors that should be discussed, if they are present in your case. Documenting these will be addressed in further detail in a separate chapter.

Positive factors include the following, some of which may have already been brought out in demonstrating extreme hardship:

U.S. citizen children Aging parents that depend on the care of the qualifying relative or applicant Community involvement Volunteer activities Payment of taxes Steady employment history Entry into the United States as a young child No prior marriages and divorces Other evidence of good moral character.

Negative discretionary factors, on the other hand, include the following: Criminal convictions or activity Prior marriage to a U.S. citizen or LPR that may or may not have led to the filing of an I-

130 Multiple illegal entries

55 AAO Decision, New Delhi, India, pg. 5, June 29, 2011. Almost all AAO decisions state this two-fold requirement.

Prior arrests by DHS resulting in grants of voluntary departure Evidence of failure to pay child support Evidence of domestic violence

V. Tips to Demonstrating Extreme Hardship

The following are tips we have gathered from practitioners with experience in filing waiver applications. Some of these tips have been mentioned previously, but need highlighting.

A. Qualifying Relative Can’t Leave and Can’t Live Without Applicant

As explained before, the hardship to the qualifying relative must be demonstrated based both on his or her inability to leave the United States and reside in the foreign country and on his or her inability to remain here without the applicant's assistance.56 You must prove both elements. It used to be, especially with suspension of deportation cases, that the applicant could choose between the two scenarios – the qualifying relatives would stay here or they would live with the applicant in the foreign country – and then select whichever one appeared more heartbreaking and life-threatening. But the BIA, and later the AAO, became skeptical of a qualifying relative’s decision to remain in the United States despite all the alleged hardship that would result, or its counterpart, to uproot the family and accompany the applicant despite all the alleged horrors that would follow.57 The agency essentially became wise to that approach and now it requires that extreme hardship be demonstrated with both outcomes.

A common mistake is to focus on one option to the exclusion of the other. Let this dual requirement form a basis for your analyzing and preparing the application. It will then form the basis for your cover letter and how you present the application and supporting documents.

B. Start with an Effective Interview

You need to build trust and a positive connection with the client so that he or she feels comfortable revealing personal information. While intake forms and questionnaires are helpful in understanding the basic facts of the case, the information that will decide whether to proceed with a waiver application and its ultimate success will be conveyed through one-on-one conversations between you and the client. Take the time to build this connection.

Begin at the beginning, not when the couple met or married. Get a complete biographical history of your clients – the applicant and the qualifying relative – from birth to the present time. Incidents during childhood or adolescence could become critical in linking hardship to their potential separation or residence abroad.

56 Matter of Ige, 20 I&N Dec. 880, 885 (BIA 1994).

57 Id.

Example: Jane is a U.S. citizen and the qualifying relative in her husband Jorge's unlawful presence waiver. Jorge is a citizen of Mexico. The couple has been married for five years and has two U.S. citizen children. Jane's psychological evaluation states that she has a close relationship with her husband and considers him as "saving her." She was raped twice before the age of 16 and experienced other trauma based on her parents' divorce. After Jorge departed the United States for his consular appointment, Jane became unable to support herself and her family and started receiving WIC and Medicaid benefits. Jane stated that if she joined Jorge in Mexico, she would not understand the language and would suffer from being separated from her mother and all of her friends. She was worried about the medical care and educational opportunities for her children in Mexico.

The AAO granted the waiver application based on Jane’s adolescent trauma and the support that her husband has been providing.58 They relied on her biographical history, her detailed declaration, and the psychological evaluation. Her juvenile delinquency and poor choices at that time formed the theory of the case. Had this not been emphasized and recalled in her declaration, the AAO would not have been as sympathetic. Had her representative not obtained a complete biographical history, this might never have been revealed.

C. Prioritize the Hardship Factors

Take all the possible hardship factors, assign them a weight, prioritize them with strongest coming first, and then weave them into a compelling story. Remember that you don’t need a single, overwhelming hardship factor in order to win. You can have several ones that in the aggregate push the case over into the “extreme hardship” category. The accumulation of various hardship factors can be easier to identify and establish than proceeding with that special one that is rare and atypical. But lead with the strongest hardships and put the weaker ones at the end. This will also be true when preparing your index of attached documents.

D. Establish Nexus Between Hardship and Absence or Residence Abroad

It is not enough that the applicant has identified various pre-existing hardships, even if they are severe. He or she must establish why they would get worse if the applicant were separated from the qualifying relative or if the qualifying relative relocated to the foreign country. Describe the “nexus” between the applicant’s residing abroad and the qualifying relative’s increased suffering. Another common mistake is describing and documenting a health-related hardship without linking it to the applicant’s absence. Make sure you also describe the role the applicant currently plays in alleviating that hardship and the support he or she currently provides. In addition, make sure you describe and document how this health-related condition will be aggravated by the qualifying relative’s living in the foreign country.

E. Only Hardship to the Qualifying Relative Counts

58 AAO Decision, Mexico City, Mexico, September 23, 2010. The AAO found the applicant established extreme hardship.

Incorporate hardship to all family members, but filter it through the qualifying relative. Only the hardship to the qualifying relative – not to the applicant and other family members – counts. Don’t be restrained by this requirement. Simply channel the hardship that will be experienced by the children or the applicant through the qualifying relative. Get used to inserting phrases such as “it would pain me to see my child suffer if…” in the clients’ declarations. Include photos of the entire family, letters from the children, psychological evaluations of key family members. Their suffering will compound that experienced by the qualifying relative.

F. Support Every hardship Claim

Every hardship claim must be supported by documentary evidence. Allegations of hardship that are conclusory and unsupported by documentation will not establish a legally cognizable claim.59 In addition, statements by the applicant's representative are not evidence and will not be considered in the hardship determination.60 Because a finding of extreme hardship requires the adjudicator to examine and weigh the evidence, the waiver application must contain specific, documentary evidence to prove hardship. A common AAO denial will include language summarizing the hardship claimed by the applicant, but then indicate that it can not be considered because it was not verified or supported.

G. Determinations of Extreme Hardship are Highly Subjective

Will the hardship of the qualifying relative be considered extreme or will it be deemed "normal" hardship? What is the tipping point that moves hardship from ordinary to extreme? The unique circumstances of the case and the cumulative impact of "aggregated individual hardships" have, in some cases, transformed everyday hardship to extreme hardship. But strong cases are also denied due to the subjective nature of the decision-making process.

The potential separation of the couple or from family members residing in the United States is a factor to be considered in evaluating every hardship claim. This separation and the resulting aguish may be the single most important hardship factor when considering all the factors combined.61 However, the BIA in Matter of Cervantes-Gonzalez rebuffed the hardship of separation when the couple married after deportation proceedings had already begun. But in contrast, the AAO considered the hardship of a married couple and commented that "Matter of Cervantes-Gonzalez reflects the norm that spouses reside with one another and otherwise establish a life together, such that separating from one another is likely to result in substantial hardship."62

59 INS v. Jong Ha Wang, 450 U.S. 139, 143 (1981) (This case arose in the context of a motion to reopen but affirms the importance of providing documentary evidence to prove extreme hardship) .

60 Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).

61Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998).

62 AAO Decision, Mexico City, Mexico, pg 5-6, September 23, 2010.

How can one reconcile sometimes wildly divergent decisions on waiver applications where the basic facts and circumstances were similar? Are the different decisions based simply on subjective adjudications? How can there be defined, specific hardship factors and at the same time decisions that appear to give unrestrained discretion to the extreme hardship determination. Nearly every AAO decision repeats the mantra from Matter of Hwang – that extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.”63

A review of administrative decisions demonstrates that even very strong waiver cases can be denied, both by USCIS and the AAO. As many practitioners can attest, inconsistent adjudications of hardship exist at all levels. However, the first step in preparing a winning waiver application requires an understanding of and familiarity with how this term has been defined and interpreted by the agency. Follow the guidelines and tips we have set forth. But do predict the outcome to your client or raise expectations, since this is an imperfect science.

63 Matter of Hwang, supra at 451.