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Immigration Hardship Spectrums

Varied Standards For Immigration Court And Immigration Agencies

Hardship is an important requirement in deportation and removal defense cases, revolving around cancellation of removal for undocumented immigrants at immigration court.

It is also an important requirement in green card and permanent residency cases, pertaining to consular processing and I-601 family unity waivers.

Suspension Of Deportation

Extreme Hardship

hardship-spectrum-suspension-of-deportation

This is the original version of hardship.

Used primarily in immigration court matters, it remains the clearest explanation of hardship.

However, it is not the only definition of hardship used in immigration law cases.

On the one hand, the types of evidence needed to demonstrate your qualifying relative’s level of hardship is the same.

Yet, the degree of hardship – i.e., the degree of suffering by a qualifying relatives – that must be supported by your evidence differs from one form of hardship to another.

Puzzled?

You’re not alone.

The graphs below attempt to show the differences in a visual manner.

Cancellation Of Removal (BIA Version)

Exceptional and Extremely Unusual Hardship

hardship-spectrum-cancellation-of-removal

Cancellation of Removal replaced Suspension of Deportation in immigration court cases in 1997. As part of this change, Congress changed the requirement for hardship to “exceptional and extremely unusual” hardship.

The graph above illustrates this change.

This legislative modification mandated a new judicial perspective towards the degree of suffering necessary for immigrants to prevail at their deportation hearings.

In my personal view on the new standard set forth for hardship, the language used by Congress has been wrongly perceived by immigration courts.

Rather, a plain language spectrum of hardship should look like the graph immediately below.

Cancellation Of Removal (Plain Language)

Exceptional and Extremely Unusual Hardship

hardship-spectrum-plain-language

For more information on interpreting these three graphs, see How To Understand Deportation Defense: Immigration Court Spectrums Of Hardship.

On the other hand, the definition of hardship used by immigration agencies went relatively unchanged from the incorporation of the hardship standard in permanent residency and green card cases.

Until 2016.

At that time, the U.S. Citizenship and Immigration Services (USCIS) announced that it was revising how hardship should be analyzed in I-601 Family Unity Inadmissibility Waiver cases.

Based on the changes outlined in its operating manual, the current I-601 Hardship Waiver Spectrum follows the pattern shown below.

I-601 Family Unity Inadmissibility Waivers

I-601 Extreme Hardship

hardship-spectrum-i-601-extreme-hardship

In the USCIS version of hardship, proving the existence of “extreme hardship” remains the standard necessary to win.

The terms “exceptional hardship” and “unusual hardship” have been added to the USCIS spectrum. But they represent a level of hardship lower than extreme hardship.

The key point is this. Hardship is an important requirement in both immigration court deportation and removal defense and I-601 family unity inadmissibility waivers cases.

Both require strong evidence to prevail. This is true, regardless which spectrum you’re required to follow.

By Carlos Batara


 

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