Defining Extreme Hardship in I-601 Waiver Cases

Michael Cho Immigration Lawyer

According to Section 212(a)(9)(B) of the Immigration & Nationality Act, an alien unlawfully present in the United States for one year or more who again seeks admission to the U.S. within 10 years of the date of alien’s departure or removal from the U.S. is inadmissible.

However, Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility if the inadmissible alien can establish that refusal of admission would result in extreme hardship to the U.S. citizen or lawfully resident spouse or parent of the alien.  This is also referred to as the I-601 waiver, or the I-601 “extreme hardship” waiver.

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.” Matter of Hwang,10 I&N Dec. 448, 451 (BIA 1964 ).  In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999).  The factors include:

  • the presence of a lawful permanent resident or United States citizen spouse or parent in this country;
  • the qualifying family ties outside the United States;
  • the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries;
  • the financial impact of departure from this country;
  • and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate

The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include:

  • economic disadvantage
  • loss of current employment
  • inability to maintain one’s present standard of living
  • inability to pursue a chosen profession
  • separation from family members
  • severing community ties
  • cultural readjustment after living in the United States for many years
  • cultural adjustment of qualifying relatives who have never lived outside the United States
  • inferior economic and educational opportunities in the foreign country, or
  • inferior medical facilities in the foreign country

See generally Matter of Cervantes-Gonzalez. 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “relevant factors, though not extreme in themselves must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-O, 21 I&N Dec. 381, 383 (BIA 1996) (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 takes the case beyond those hardships ordinarily associated with deportation.”

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships.  See, e.g., Matter of Bing Chih Kau and Aiei Tsui Un, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate)

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 ( quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 247 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

Therefore, when adjudicating I-601 waivers, it is the totality of the circumstances that will determine whether denial of admission would result in extreme hardship to a qualifying relative.