Carlos Batara – Immigration Lawyer header image

Beware The Role Of Discretion In I-601 Hardship Waiver Decision-Making

– Posted in: Immigration Law, Policy & Politics | I-601 Hardship And Waivers

Certain immigration inquiries happen too often.

Immigrants, not being fully informed, put their trust in programs with risks they do not suspect.

Like the I-601 waiver process.

A few days ago, a woman in early 30s visited my office to find out if I could help her husband.

She explained that he traveled to his home country for a green card interview, but he was not allowed to return to the United States. Despite a notario’s assurances to the contrary, her husband’s request for an I-601 waiver had been denied.

When I asked what her husband told her, she said he could not prove enough hardship. She did not know what that really meant.

Neither did I.

“Not enough hardship,” without details, has multiple meanings.

As a family-based green card attorney, I cannot effectively guide clients with such insufficient and incomplete information.

Wild guessing is not in their best interests.

I refuse to presume the reasons for a rejected immigration application without concrete details.

This is why a client’s most important inquiry, from the outset, is to try to figure out what will it take to win your or your family member’s case.

Building Blocks For Winning I-601 Extreme Hardship Waivers

In a previous blog post, I explained there are two elements to winning an I-601 extreme hardship waiver.

This article will focus on the second element, how discretion plays a major role in I-601 decision-making.

The first component pertains to proving extreme hardship to a qualified U.S. citizen or lawful permanent resident family member. To an extent, this aspect is objective.

Because this aspect depends on the preparation and organization of evidence presented to  government officers for review, immigrant families can assert a fairly strong degree of control over this part of the hardship decision-making process.

The second component, however, pertains to the discretionary decisions of the officer who evaluates the evidence presented. This aspect is subjective. Extreme hardship is in the eyes of the beholder.

To understand how these components work together, consider a murder trial.

In one case, after all the evidence is gathered and presented, Mr. Smith, who is 100% innocent, is sentenced to life in prison.

In a second matter, Mr. Jones, who is 100% guilty, is acquitted and allowed to go free.

A similar process is at work in extreme hardship waiver decisions.

While immigrant families with the greater amount of suffering do not always win their cases, those with less hardship sometimes prevail.

How Does USCIS Hardship Waivers Discretionary Decision-Making Work?

According to Steven D. Heller, a former USCIS adjudicator, there are two approaches to discretion in I-601 waiver cases.

First, there is the strict constructionist view. This means that an officer will exercise his or her discretion only after extreme hardship has been proven. Assessing extreme hardship is based solely on evidence presented by I-601 applicants.

Second, there is the holistic approach. This refers to the use of discretion in the actual  assessment of extreme hardship factors.

Based on my experience as a San Bernardino immigration lawyer, I believe that both approaches are commonly part of the I-601 extreme hardship decision-making process.

The Strict Constructionist View Of I-601 Discretion

As noted above, under the strict constructionist view, government officers will exercise discretion after extreme hardship has been proven.

This perspective dates back to Mendez-Moralez, a decision by the Board of Immigration Appeals which held that establishing extreme hardship to a qualifying family member and eligibility for a waiver does not create an entitlement to that relief.

In other words, an applicant’s extreme hardship claim must be weighed as an initial threshold matter. If the USCIS examiner finds extreme hardship has been demonstrated, the officer then begins an inquiry into whether the immigrant should be granted an I-601 inadmissibility waiver in the exercise of discretion.

The extreme hardship inquiry focuses on the immigrant’s family. The discretionary analysis centers on the immigrant. The former is driven by the possibility of harm, the latter is merits-based.

The Holisitic Approach To I-601 Discretion

In Heller’s view, the holistic approach to evaluating extreme hardship factors utilizes a “contextual assessment” of hardship factors.

He implies this empowers officers to arbitrarily expand or restrict the impact of hardship factors in their evaluations.

Whereas I agree that a holistic, contextual assessment opens the door to far-reaching subjective reasoning, all uses of discretion in immigration decision-making is subject to limits on abuse of discretion.

Moreover, without a holistic approach to evaluation, the totality of an immigrant and his family’s circumstances cannot be analyzed.

Allow me to explain.

Far too often, prospective I-601 clients, like Leonel, assert, “My co-worker, Johnny, just got back from his consulate interview. His case is just like mine.”

“He doesn’t have papers. His wife is a U.S. citizen and we both have two children. Plus we work at the same place. So I shouldn’t have much trouble getting a green card.”

Unfortunately, this type of thinking leads to disastrous results.

For instance, let’s just look at the children.

  • Are they the same ages?
  • Are they earning the same grades in school?
  • Given their grade levels, is there a potential for educational disruption?
  • Have any of them won special awards in school or the community?
  • Would any of them have language handicaps if they had to move to a foreign country?
  • Are any of them working age? Do any of them have special medical issues?

And in most cases, there’s a lot more to know about the children.

Without careful preparation, there is no way to know if the degree of hardship to Johnny’s children are less than, more than, or equal to the degree of hardship to Leonel’s children.

I-601 Discretion: Expansion And Restriction

Under a strict constructionist view, USCIS adjudicators do not weigh such factors. The only pertinent hardship is the hardship suffered by the qualifying relative.

But under a holistic approach, USCIS officers view the totality of the circumstances and, in their discretion, they have the authority to weigh any plausible factor of hardship.

In the above example, let’s assume Johnny’s children, ages 5 and 7, are U.S. citizens.

On the other hand, Leonel’s kids, born abroad, are ages 17 and 15.

Should their ability to remain in the U.S. and go to school here be part of the adjudicative process?

These types of considerations, notes Heller, are not really related to extreme hardship, but are clearly relevant for exercising discretion.

Thus, although the children are not statutorily included as qualifying relatives in the hardship regulations, an officer might very well find more grounds – under a holistic contextual assessment – to exercise favorable discretion on behalf of the hardship application related to Johnny’s wife.

USCIS Discretion: A Double Edged Sword

When it comes to immigration benefits based on extreme hardship, there will always be more losers than winners.

Extreme hardship, although a nebulous term, connotes a rare hardship. It is not the ordinary hardship suffered by the vast majority of immigration families who may lose a family member to deportation.

As a result, individuals looking into the possibility of filing for a I-601 family unity waiver need to grasp the significance of discretion in USCIS extreme hardship determinations.

On a practical level, discretion leads not only to expanded meanings of extreme hardship, but also to restricted and narrowed decisions.

It also means, as I’ve noted before, the key to winning an inadmissibility waiver is to support the application with as much, and as good, evidence as possible.

Whether the government officer exercises in the evaluation of extreme hardship or during the merits stage, you’ll be in a better position to prevail.

By Carlos Batara, Immigration Law, Policy, And Politics