Extreme Hardship Defined

Section 212(a)(9)(B) of the Act provides, in pertinent part:

(i) In General – Any alien (other than an alien lawfully admitted for permanent residence) who –

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of alien’s departure or removal from the United States, is inadmissible.

(v) Waiver. – The Attorney General [now the Secretary of Homeland Security (Secretary)] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

Section 212(a)(6)(C)(i) of the Act provides, in pertinent part, that:

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Section 212(i) of the Act provides, in pertinent part:

(I) The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

(**Please note that the I-601a Provisional Waiver requires a showing of extreme hardship to the U.S. citizen spouse or parent.  In other words, lawful permanent residents are not allowed to be the qualifying relative for I-601a Provisional Waivers).

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 of Immigration Appeals 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 relative’s 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 which the qualifying relative would relocate. Id.  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. Id. at 566.

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 lge, 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 “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of lge, 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.” Id.  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 Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BI2001) (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).

The Psychological Evaluation

The psychological evaluation can thus be a powerful piece of evidence to demonstrate and prove the extreme hardship that the qualifying relative would suffer if he or she is separated from the applicant; or alternatively, if the qualifying relative leaves the U.S. and re-locates abroad in order to be with the applicant.  I will first go over an I-601 waiver application that was approved by the AAO to examine the characteristics of a successful and persuasive psychological evaluation.

The applicant in this case is a native and citizen of Mexico who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for fraud or willful misrepresentation of a material fact in order to procure an immigration benefit.  The applicant is married to a U.S. citizen and seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside with her husband in the United States.

The qualifying relative (the U.S. citizen husband) was born in Texas.  He is 58 years old, and has 10 siblings, 4 children from previous relationships, and 3 grandchildren who all reside in the U.S.  He has a 88 year old elderly father.  He fears that he would not have a job if he moves to Mexico and consequently would not be able to afford visits to see his father.  He encountered a shoot-out between drug cartels and the Mexican military during a visit to see his mother-in-law during a visit to Ciudad Juarez, Mexico.  He and his nephew were stopped by armed men with machine guns who threatened their lives during a visit to see his mother-in-law in the state of Sinaloa, Mexico.  A letter from his sister-in-law confirms the violence in Los Mochis Mexico, and the general state of disrepair of the house there that the applicant and her U.S. citizen husband would have to live in.

The psychological report submitted as part of the I-601 waiver application expressly states the following:

• The U.S. citizen husband was the middle child of eleven children who grew up in a home with a physically and verbally abusive alcoholic father.
• The U.S. citizen husband watched and heard his mother being beaten and felt powerless to stop his father.
• The U.S. citizen husband is very close to his siblings since they supported each other while growing up in order to survive.
• The U.S. citizen husband grew up in Idaho where he felt a sense of discrimination and prejudice during his school years.
• When the U.S. citizen husband was 23 years old, he was called back home from the U.S. Army because his mother had died, his father had left, and there was no one to care for his younger siblings.
• The U.S. citizen husband’s first marriage was brief and they had a son together.  His ex-wife disappeared with his son and he was unable to find him until his son was 12 years old and complained that his mother abused him.  His son subsequently lived with him for two years.
• The U.S. citizen husband’s physician prescribed him Prozac for his depression which dates back to his first marriage.
• The U.S. citizen husband re-married and had two children with his second wife.  This marriage lasted 28 years.
• When the U.S. citizen husband met his current wife (the I-601 waiver applicant), he felt there was new meaning in life.
• He fears he will go into serious depression if she moves back to Mexico without him, and fears that if he moved to Mexico with her, he would deeply miss his children and siblings.
• The U.S. citizen husband has a history of depression and anxiety.
• The U.S. citizen husband has difficulty sleeping, feels anxious, and had had thoughts of suicide.
• The U.S. citizen husband has been diagnosed with Dysthymia and Adjustment Disorder with Depression and Anxiety.
• If the wife is not allowed to remain in the U.S., the U.S. citizen husband would experience serious psychological consequences and it his highly likely his depression would worsen to the point he would consider suicide.

In my experience, effective psychological evaluations should always include a detailed personal history of the person being examined (along with the waiver applicant and family members in general).  It should concisely and accurately detail the unique circumstances of the patient that makes him or her particularly vulnerable to hardship.

The psychological evaluation in support of a I-601 or I-601a waiver should summarize the psychological and medical history of the patient, including the length of time the patient has suffered from psychological disorders and medical illnesses; any treatments received including surgery; and the medications the patient has been prescribed.  This is particularly important because the USCIS can discount the credibility of psychological diagnoses prepared solely to support the I-601 or I-601A waiver application.  A discussion of a history of previously diagnosed psychological disorder(s) will go a long ways towards establishing credibility.

The psychological evaluation should describe the emotional impact of both separation and re-location.  In other words, it must discuss the psychological and emotional impact on the qualifying relative if he or she becomes separated from the applicant due to inadmissibility; as well as the psychological and emotional impact on the qualifying relative if he or she re-locates abroad in order to be with the applicant.

Since mental and physical well-being have been found to be closely related, the psychological report can also emphasize the physical consequences of patient’s current or future psychological state.  For example, if the patient suffers from coronary disease, then an aggravation of his or her psychological disorders could contribute to a fatal heart attack.

The psychological evaluation should state the methodology used to diagnose the patient.  It should specify all of the symptoms shown by the patient that led to a particular diagnosis.   If applicable, if should expressly state that separation from the applicant (and re-location abroad to be with the applicant) would make the psychological disorders worsen.   It should also state what the consequences will be for the patient if his or her psychological disorders worsen, including the possibilities of decompensation or suicide.

A well-written psychological evaluation should have a final section that summarizes the conclusions of the psychologist or psychiatrist.  It should emphasize all of the hardships that the patient is currently suffering from, as well as those that he will suffer (or that will grow worse) should the applicant not be admitted to the United States.

It is therefore essential that the psychological evaluation be prepared by a professional who has experience with the unique requirements of the extreme hardship standard used in I-601 and I-601a waiver applications.  If your chosen psychologist or psychiatrist does not have such experience, I suggest providing a link to this article and making sure they understand the importance of a well-written and detailed psychological report.