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8 Practice Tips For Your I-601 Hardship Case

May 30, 2016

I-601 Family Unity Waiver Applications:
Eight Insights You Should Know

family-unity-hardship-defense-tips

Early in my career, at a seminar for new attorneys, a judge gave me a piece of advice that has guided me in representing immigrants at various courts, agency interviews, and immigration appeals to this day.

The advice, though simple, was profound.

Good lawyers, said the judge, prepare in advance. They know their evidence before their hearings start. They maximize their clients’ chances for success.

In I-601 hardship cases, sometimes for financial reasons, immigrants attempt to represent themselves. Many under-estimate the complexity of immigration law. Some simply fail to put in the time and energy needed to win.

Others hire legal representatives. Yet, they do not actively participate in putting together their cases. More often than not, they are ignorant about what actions are being taken to prepare their cases.

Neither situation is ideal for winning.

Preparing, Organizing, And Presenting Evidence

As a result, in this blog post, I outline eight insights to help immigrants prepare, organize, and present evidence – with or without the help of a lawyer – in an effort to improve their chance for victory and overcoming the threat of family separation.

Preparing, organizing, and presenting WINNING evidence is not easy. These pointers will help bring you and your family closer to removing the threat of separation forever.

1. Successful Clients Take Responsibility For Their Cases

2. Never Underestimate The Hardship Of Proving Hardship

3. Is Your Hardship Ordinary Or Extreme?

4. What Is Your Special Immigration Story?

5. Do Not Overlook Community Service

6. Show. Tell. Prove. But Do Not Exaggerate

7. Do You Know Your Qualifying Relatives?

8. Explain The Totality Of Your Circumstances

 

1. Successful Clients Take Responsibility For Their Cases

The best clients – those most likely to be successful – take matters into their own hands. They take control of their cases and work closely with their attorneys.

They don’t just drop their cases on the laps of their lawyers and disappear for months.

Lawyers cannot perform magic. They can compile evidence. They can help organize it. They can help shape it.

But they cannot — or at least they should not — perform such services alone. Because they do not know their clients’ life history, they cannot possibly know clients’ hardships without the input and cooperation of their clients.

In reality, clients who operate in a hands off approach are assuming some magic formula — A-B-C-D-E — exists for success. But since everyone has different lives, different histories, there is no one formula to fit all cases.

What happens when clients don’t play an active role in their cases? They’re stuck, clueless, if they lose their cases.

Here’s an example.

Shortly after I launched my Riverside immigration law practice, an older gentleman came to visit him. He explained that his wife was stuck in Mexico. She went to an interview. They would not let her return to the United States. The gentleman and his wife were told by those who prepared her papers that she would be able to return safely and legally after her interview.

She didn’t win.

The couple had three children who were doing fairly well in school. He was worried about what would happen to them without his wife. When asked about what evidence was presented to the government on behalf of his wife, he did not know what was sent, what was presented. He did not know his wife’s case was about.

He was clueless.

Some clients hear stories from others, like their uncles, who have the same amount of kids and work in similar jobs, and they think just because their uncle won, they will win. They think their situation is the same.

No two cases are ever exactly.

Don’t fall into the trap thinking there is a formula. You need to present your case as if it is the most unique case ever. And you need to plan an active role in developing the evidence it takes to win your case.

2. Never Underestimate The Hardship Of Proving Hardship

What types of misconceptions can undermine an immigrant’s chances of winning a family unity waiver and winning their deportation defense case?

Based on questions from the audience, prior to the taping of this presentation, the following concerns stand out for immigrants seeking I-601 waivers.

A. What is the biggest no-no for a client facing hardship?

As noted earlier, the biggest no-no is to believe lawyers have some type of magic pixie dust that can make all your immigration problems disappear. Nope. Rather, the best chance for victory is to work closely with your lawyer.

The magic pixie dust approach creates a situation where many attorneys just give their clients a few forms to fill out without taking enough time to really connect with their clients on building cases together. It flows from the false belief that a evidentiary formula — A, B, C, D, E — exists, which allow attorneys to avoid engaging directly with their clients.

Instead, clients need to contact their lawyers and ask to be more involved in shaping their cases in conjunction with their lawyers.

You might have fears about talking to your attorney. You might have fears about sharing all details of your immigration history.

If you want to improve your chances for success, you need to face your fears.

B. How careful should immigrants handling their case without an attorney be? In other words, how bad can they mess up their cases?

The worse that can happen is to lose. With or without a lawyer.

Sometimes a case can lost so badly that there is no possibility of a second chance, no possibility of winning an appeal, a motion to reopen, or a motion to reconsider.

Decision making at immigration court is discretionary. This means the adjudicators – either government officers or immigration judges – make subjective decisions, based on certain predefined rules, about how they perceive the evidence.

The rules may be more or less objective . . . the perception is subjective.

Even if an immigrant thinks the officer or judge was unreasonable, the challenge afterwards has to be made on technical grounds because discretionary decisions are nearly beyond review.

Without some type of technical mistake or evidentiary error, winning a post-decision motion or appeal is just about impossible.

Take criminal cases. The innocent sometimes go to prison for life.

This happens for two reasons. First, the evidence presented might not sufficient to prove a person’s innocence. Second, the evidence might be substantial, but the jury does not view the evidence in the same way as the defendant and his attorney.

Evidence presented . . . evidence perceived.

face-your-family-separation-fears

C. What is the rate of success?

I’m not sure what folks mean when they ask about success rates.

I understand what success means. I understand what success rate means. However, in general, I think discussion of success rates can be misleading.

Moreover, they can create a false sense of security.

When I first moved in Riverside and start practicing here, a local lawyer was running a huge telephone book ad. It proclaimed “99% success rate.”

I thought to myself, this guy must be really, really good, or he knows how to carefully pick his cases.

What type of cases was he handling?

Visa petitions? Removal trials?

Citizenship applications? Deportation appeals?

Some clients who came to my office would ask me, “Hey, this guy across town promises 99% success. What do you promise?”

My response was simple.

I don’t promise a specific success rate. I do not give percentages on my cases.

Instead, I promise my best efforts. I promise to do my best to make success happen for you. But I cannot promise you a certain success percentage rate.

Besides, what does 99% really mean? Even if the 99% comment is truthful, how do you know your case does not fit into the 1%?

Right now, immigration judges are administratively closing a lot of court cases. They count them as completed cases. But is an administratively closed case the same as a winning case?

In some administratively closed cases, immigrant defendants may have to return back to court in three years after the courts have caught up with its older or more pressing matters like the Central American refugee youth cases.

Is this success?

3. Is Your Hardship Ordinary Or Extreme?

Hardship is a confusing concept for many immigrant families.

Moreover, the idea of an extreme hardship – not just any old hardship – is difficult to grasp for most individuals, not only immigrants.

Another difficulty is caused by the use of supposedly different standards to evaluate hardship in various types of cases.

For instance, immigration courts have said that exceptional and extremely unusual hardship is a stricter standard than extreme hardship.

But for you, that’s not necessarily the way to look at hardship. If you understand the word “extreme,” it means the outermost edge. The only hardship worse than an extreme hardship is an unconscionable hardship, and that’s a standard courts cannot use.

Extreme Hardship Spectrum Of Severity

extreme-hardship-spectrum

The concept of extreme hardship was originally used at immigration court in former suspension of deportation cases.

The same concept is now used for adjudicating I-601 family unity waivers. (One big difference is the qualifying relatives requirement which I will describe later in tip #7.)

So although courts – in cancellation of removal cases, not waiver cases – have tried to slide hardship into a new category, exceptional and extremely unusual hardship, it does not change how you need to look at your case.

In short, the idea is this: ordinary cases don’t win.

Whether you have to prove an extreme hardship case or an exceptional and extremely unusual hardship, don’t get hung up on the terminology. Just realize your case has to be vastly different than the ordinary case.

Let me explain this point a little clearer here.

Ordinary hardship is losing hardship . . .

. . . Extreme hardship or exceptional and extremely unusual hardship is winning hardship.

I’m going to give you some quotes from actual court cases to illustrate this issue.

What is extreme hardship?

According to the Board of Immigration Appeals, “without a showing of significant or actual potential injury substantially different and more severe than that suffered by the ordinary alien who is deported, extreme hardship would not be found”.

What is exceptional and extremely unusual hardship?

In the BIA’s view, to meet this standard, “immigrants must provide evidence of harm to his spouse, parent, or child substantially beyond that which ordinarily would be expected from the alien’s deportation”.

Not much difference, really.

On July 14, 2015, USCIS issued tentative new guides for hardship cases in the unlawful presence I-601 waiver context.

Some pundits claimed the proposal would soften the hardship equation. Well, upon my review, I did not see any major additions or substantive changes. On the contrary, I think some of the language could make it tougher to win hardship waivers.

On October 21, 2016, over a year later, USCIS issued its new policy manual for determining extreme hardship in the context of seeking family unity waivers.

My view is that the new policy guidelines do not change any existing rules. Rather, the guide merely clarifies some considerations for adjudicators. As a result, the tips offered in this blog post remain unaffected and continue to provide immigrant families with useful advice for developing winning I-601 waiver applications.

To simplify matters, when you’re trying to figure out your evidence, just think of ordinary versus extreme. Ordinary is losing; extreme is winning.

Since courts have said that most hardships of immigrants are ordinary, what is extreme?

If you draw a hardship spectrum from 0 to 100%, we know 50% is average. That’s ordinary. So if your case is about the same as others’ cases in terms of severity, hardship severity, that’s average, that’s ordinary.

Does that mean if your hardship is more severe than 51% of all hardship cases, your hardship is extreme? No way. That might be a tiny bit unusual. It’s not extreme.

  • More severe than 60% of cases? Is that extreme hardship?
  • More severe than 70%? of cases? Is that extreme hardship?
  • More severe than 80% of cases? Is that extreme hardship?

Okay, 90% is unconscionable. So I would guess a hardship that is more severe than 70%, or maybe 80%, of all other hardship cases is probably extreme hardship.

Remember the evaluation is subjective. I’ll explain that more in a little while.

Unfortunately, most immigrants don’t think like this. They think in a formula sequence.

In reality, is there really an ordinary alien with an average hardship?

Is that a family with two kids, three kids, or four kids . . . ages 7, 8, 11, or 14 . . . earning $10,000 a year or $30,000 a year . . .driving in a beat-up ‘63 Chevy or a relatively new Toyota?

What type of dreams do they have for their family?

Is it an immigrant who just sits around in the backyard every Sunday and has a party? Or someone who reads to their children, hoping they become astronauts, doctors, and accountants?

What type of job does an ordinary alien work?

I don’t believe there’s an ordinary alien. That is the attitude you must have about your case and you have to help those who are helping you to explain your situation this way.

You are not ordinary. Your hardship is not ordinary. Prove it.

4. What Is Your Special Immigration Story?

If any of you have visited my website, you know that I talk about a story when I met Charles Kuralt. He was a very famous reporter. He won a lot of awards. Every Sunday evening, he would interview someone off the streets and tell their life story in an hour. Every story was beautiful. They were great stories. He won a Pulitzer Prize year after year for his shows.

Well, when I first started college as a freshman, I wanted to be a journalist. When he came on campus to speak, I was given the assignment to interview him.

I asked him, “How do you choose your subjects? How do you find these people? Who does the research? You must have a great research team.”

And he told me, “Carlos it’s really relatively easy.”

The way he described it, it was like the game, “Pin The Donkey.” He said, “I go to a room. They blindfold me. They have a map of the United States, a big map. And they spin me around and I walk and I stick a needle on the map, and whatever city or rural area we hit, that’s where we travel to. When we get there, we ask people if they would allow me to interview them and the first person who says yes, that’s who I interview, and then that’s the story which gets presented on television.”

I thought to myself, “What an amazing formula.”

He told me, “Let me give you a secret. Everybody – absolutely everybody – has a Pulitzer Prize novel in them. They just need the right storyteller.”

That’s the way I look at immigration now.

It doesn’t matter what country you’re from. You’ve traveled so many miles. You’ve had many ordeals and obstacles in your life and now you’re married, engaged to a citizen or permanent resident. You may have children. You may not. You have dreams, different dreams. You want to buy a home. You want to live the American life. You want to travel. You want to be able to put food on the table for the kids.

You have a special story – and you need to make sure you tell that story when you present your waiver or defend yourself in court.

FREE I-601 HARDSHIP PDF: Learn when and why you need an immigration lawyer to write a hardship letter for your wife or husband. Click here to download your copy.

If you have anyone helping you, you have to make sure he or she understands that they have to tell your story. All those factors of your life story – the money, the home, the school – must be put together in a way to tell your Pulitzer Prize novel.

Now, many judges like to cut hearings short because they’re overloaded and they want to narrow the focus on certain areas. But if you’ve done your job of outlining other issues, the minor issues, don’t exclude them. They count. They help build your case.

When you combine them with your bigger issues, you now have a better chance to meet the extreme hardship standard, or the exceptional and extremely unusual hardship standard, necessary to win your case.

5. Do Not Overlook Community Service

Another issue you should raise, whenever possible, is community service.

One of the big arguments I often had in the beginning of my career was how government lawyers and immigration courts look at the community service of immigrants.

I call their approach “elitist thinking.”

I once had a judge cut me off in closing argument because I have infuriated him so much with this analysis that he said, “Are you implying that I grew up with a silver spoon in my mouth?”

Oh well . . . if the shoe fits . . .

My point is this: community service doesn’t have to be limited to being the president of the Kiwanis Club, or an officer of the Chamber of Commerce.

You could be just a volunteer for your church, for your children’s school, at the YMCA teaching kids how to swim or play soccer. You’re there every week, every Saturday, and you give your best.

That’s community service, too.

Yet when I read the transcripts of cases as an appeals attorney, I wonder why aren’t more lawyers using community service in their hardship cases? And why are those who incorporate such issues limiting their presentations to the elitist approach of evaluating community service?

6. Show. Tell. Prove. But Do Not Exaggerate

Compare these words:

  • Discomfort versus disaster
  • Misfortune versus misery
  • Displeasure versus desperation
  • Hard times versus hopelessness
  • Difficult versus destruction

Do you sense a difference in the words?

The first set of words describe ordinary hardship. The second set – disaster, misery, desperation, destruction – describe extreme hardship, exceptional and extremely unusual hardship.

When you are presenting your evidence, you have to present evidence that shows your hardship is like the latter category of words, not the former.

Some clients who come to my office asking about our family immigration services tell me, “My husband works the same job as this other person and we both have three kids. He got a waiver for hardship, so we should get a waiver for hardship too.”

Or you read these good character letters people write as part of family unity applications for their friends and relatives. They list a few factors, and they think that’s enough for showing hardship.

In such matters, there is nothing unusual about what they describe. The case is going to look pretty ordinary in the eyes of the adjudicator.

Extreme hardship is extreme. Ordinary hardship is ordinary. You may have the evidence to show extreme hardship. You may have a life full of exceptional and extremely unusual hardship.

Still, you must compile the evidence and put it together in a way that your Pulitzer Prize novel gets told.

putting-together-hardship-evidence-puzzle

Hardship is not just heartache, sorrow, and sadness. Boy, do I hear this a lot. And I say, “Stop it.”

You need more. I understand the pain and emotional aspects. But this is ordinary. It’s like economic and financial loss. For instance, I hear, often, “If I get deported, my wife’s not able to put food for the kids and the clothes.”

Once in a while economic suffering can be an extreme hardship. But not usually. Courts have said financial hardship, economic hardship, by itself is not enough to win your case.

In some cases, people are doing very well. So they lose. The judge says, “You’re a successful business person. You know how to make money. You can go home and make money over there. Plus you speak the language and you’re from there originally – it’s not extreme hardship to me. Economic and financial inconvenience, maybe, but not extreme hardship.”

Don’t exaggerate when you’re discussing your economic circumstances.

    Q: “When you go home, can you get a job?”
    A: “No, I can’t get a job.”
    Q: “Why?”
    A: “I’m too old.”
    Q: “How old are you?”
    A: “I’m 37.”
    Q: “Do you have any skills?”
    A: “No.”
    Q: “Well did you ever have work before?”
    A: “Yeah?”
    Q: “What did you do?”
    A: “As a cashier.”
    Q: “Well you got a skill.”

And the judge is going to ask about it.

Are you telling me there are no stores or cash registers in your home country?

Don’t exaggerate.

Some people want to exaggerate their hardship. You can exaggerate to me. You can exaggerate to your husband, wife, children, cousins, aunts, friends, community members, churchgoers, and coworkers.

It will not work at court. It is not going to work with an adjudicator.

Don’t exaggerate.

Show. Tell. Prove.

Don’t simply conclude.

Don’t just say, “My wife won’t be able to afford dinner for my kids if I’m deported.”

Prove your hardship.

How much does she make? Why can’t your wife work? Does your wife have an illness prevent you from doing any jobs outside your home? Or maybe you have a little baby, you can’t afford child care?

Prove your hardship. Be specific.

There are ways to use the issue of economic hardship – but not by just saying there will be economic hardship.

Add details.

For example, “My children have dreams. They want to go to college.” “Right now we’re sending them to parochial school. We live in a tough neighborhood and we want to protect them from the gangs.”

Add details.

Show. Tell. Prove.

It’s amazing how many families are clueless when it comes to explaining the hardship to their children.

Children are one of the most important factors in a hardship analysis, especially if they’re U.S. citizens.

I do not think judges and adjudicators want to strip the kids of the benefits of U.S. citizenship by forcing them to move to another country. But if you don’t show the evidence, the immigrant will be deported and separated from their family or the children are going to “lose” their citizenship, essentially, by having to move to another country.

Don’t be general. Be specific.

Tell your story. Not just a loose collection of facts. Tie the evidence together.

You may have a hardship, an extreme hardship. But you need to show it. You need to tell it. You need to prove it.

7. Do You Know Your Qualifying Relatives?

The requirement of qualifying relatives is another technical issue which confuses a lot of people.

Basically, when you are presenting a family unity or deportation defense case, the law specifies whose hardship counts. Those who count are considered your qualifying relatives.

Under suspension of deportation, you can show the extreme hardship to yourself, the immigrant – your spouse if your spouse is a U.S. citizen or permanent resident – your child if your child is a U.S. citizen or permanent resident – or to your parent if your parent is a U.S. citizen or permanent resident.

When the law for deportation relief changed to cancellation of removal, the hardship requirement changed from extreme hardship to exceptional and extremely unusual hardship.

The new law deleted the immigrant’s own hardship from direct analysis, so now the immigrant could only show hardship to his spouse, child, or parent, if they were U.S. citizens or permanent residents.

Under cancellation of removal, no longer does the immigrant’s personal hardship count.

Under the original family unity waivers, the 601 inadmissibility waivers you file abroad, who is a qualifying relative for hardship purposes?

A citizen or permanent resident spouse. A citizen or permanent resident parent.

Hey, wait a minute? What about the kids?

They’re not statutorily qualified.

What about the Stateside I-601 family unity waivers implemented by President Obama for immigrant families a few years ago? Who are the quantifying relatives?

A U.S. citizen parent or a U.S. citizen spouse.

What about a lawful resident spouse? What about a lawful resident parent?

Oh, my goodness, they shrunk the list again.

So the list of qualifying relatives has went from immigrant, lawful resident or U.S. citizen spouse, child, or parent . . . to merely U.S. citizen spouse, or parent. With each new program, the list of qualifying relative is slimmed down as to who counts.

Editorial Update: On August 29, 2016, after this blog post was published, a new federal regulation went into affect. Under this change, a lawful permanent resident spouse or parent now count as qualifying relatives for purposes of I-601 stateside waivers.

 

You have to know your qualifying relatives.

You have to know whom you’re building your case around, because your evidence must center on the hardship of those who meet the requirements of your qualifying relatives.

8. Explain The Totality Of Your Circumstances

Totality of the circumstances is the real test for evaluating hardship.

This means all circumstances of hardship should be explained by the immigrant and examined by the I-601 examiner.

There are direct and indirect factors of hardship. Let’s dive into this.

Assume we are discussing the hardship of a lawful permanent resident spouse. The hardship of the children does not count.

Really? Yes, really, because children are not qualifying relatives for I-601 waivers. But this you should know: we’re talking about direct hardship. The law says the hardship factors of children don’t count directly because they are not qualifying relatives.

But what if your spouse’s hardship is adversely impacted and made worse because of what’s going to happen to the children if you get deported. Well, then, it does affect her hardship, doesn’t it?

That’s an indirect factor of your spouse’s hardship. Keep that in mind.

Totality of the circumstances.

Remember, too, that since government officers can make discretionary decisions, two may look at the same hardship issues but view the impact differently.

Let me give you a practice tip.

When you present your case, prepare your case for the meanest, rudest, strictest, smartest adjudicator you’ll ever meet.

Why? Because if you don’t, you might not be ready on the day of reckoning.

It’s better to prepare for a tough officer or judge and get a sympathetic officer or judge – than to prepare for a sympathetic officer or judge and end up with a tough officer or judge.

Always prepare for the hardest possible opponent.

Always. Always. Always.

The officer or judge who will decide your case has discretionary power. They can look at your evidence, and conclude, “I think you have presented a lot of good evidence, yet I don’t think you it rises to the level of extreme hardship.”

Remember that and you’ll never take preparation too lightly.

By , Immigration Law, Policy, And Politics

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