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What is "Extreme Hardship" for Immigration Purposes?

Because “extreme hardship” isn’t defined in the legal code, its meaning is interpreted based on the decisions made in Board and Federal courts.


Relevant factors

When determining whether deportation would cause extreme hardship to a person or their relative(s), the courts have previously considered the following factors.

  • age of the applicant when entering U.S.

  • length of residence in U.S.

  • age of applicant when requesting suspension of deportation

  • immigration history

  • applicant’s children: their age, immigration status, and their ability to speak language and adjust to life in country they would return to

  • health of applicant/family, availability of any needed medical treatments in country they would return to

  • how connected applicant is to community in the U.S.

  • how applicant contributes to community in the U.S.

  • applicant’s level of social “integration”

  • whether any family members are living in the U.S. legally

  • whether any family members are living in the country they would return to

  • claim of persecution --

    • the current economic / political circumstances in the country they would return to;

    • the circumstances under which applicant left the country;

    • family history

  • financial impact that leaving would have on applicant and other family members is much more extreme than what is typical for deportation/removal

  • applicant’s employability in the country they would return to

  • disruptive impact on education

  • psychological impact of deportation on applicant, spouse and children is much higher than the stress that is typical of returning to a country after being away for several years

  • other options available to adjust to permanent resident status


Notes:

  • The applicant can raise factors that are not on this list.

  • It is not necessary to demonstrate that all the listed factors are applicable to you either.

  • No one factor will be considered as most important when establishing extreme hardship. Instead all the relevant factors are weighed together when a decision is made in your case.

What is not accepted as a sole basis for extreme hardship:

  • a child born in the U.S. as a citizen

  • significant loss in standard of living

  • inability to pursue applicant’s profession


Schedule

When you apply for suspension of deportation, or a special rule cancellation of removal, your asylum officer can’t deny your application. If any of the following applies to you, they must refer your application to Immigration Court.

  • applicant is ineligible for relief

  • applicant should be denied relief as a “matter of discretion”

  • applicant is only eligible under higher standards that require more complex deliberations from the court (10 years presence in the U.S. and exceptional and extremely unusual hardship resulting from removal, etc)

  • applicant is only eligible as a battered spouse or child

  • applicant denies inadmissibility or deportability

If your application is deemed ineligible by the courts, one of the following could happen:

  • the courts will put you in removal proceedings

  • the courts may move to reschedule proceedings

If the applicant doesn’t appear for a scheduled interview/fingerprint session and doesn’t have a qualifying excuse, the asylum officer can either refer your application to Immigration Court or dismiss your application.


If eligible for suspension of deportation / special rule cancellation but not asylum:

In this case, you would be granted the suspension or cancellation and have your status adjusted to lawful permanent resident. You can choose to either continue to pursue the request for asylum or withdraw your asylum request.

If eligible for suspension of deportation / special rule cancellation and asylum:

In this case, you would be granted the suspension or cancellation and have your status adjusted to lawful permanent resident. The courts will also acknowledge that you are eligible for asylum even after your status is adjusted.

If eligible for asylum but not suspension of deportation / special rule cancellation:

You’ll be granted asylum but your application for suspension of deportation / special rule cancellation will be dismissed.

References:

https://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-42380/0-0-0-44857/0-0-0-47481/0-0-0-47683.html

https://www.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-15135/0-0-0-21123.html

https://preview.uscis.gov/ilink/docView/INT/HTML/INT/0-0-0-15135/0-0-0-19175.html

https://www.justice.gov/sites/default/files/eoir/legacy/2014/07/25/3280.pdf

https://www.justice.gov/sites/default/files/eoir/legacy/2014/08/15/nacara203.pdf

https://www.uscis.gov/humanitarian/refugees-asylum/asylum/nacara-203-nicaraguan-adjustment-and-central-american-relief-act

https://www.law.cornell.edu/cfr/text/8/240.66

https://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-42380/0-0-0-44857/0-0-0-47481/0-0-0-47637.html

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-7238.html

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/act.html

https://www.uscis.gov/sites/default/files/USCIS/Outreach/Policy%20Review/DRAFT_Extreme_Hardship_Policy_Manual_Guidance_for_public_comment.pdf

https://cliniclegal.org/resources/uscis-explains-extreme-hardship-and-how-it-applies-certain-waiver-applications

https://cliniclegal.org/resources/uscis-explains-extreme-hardship-and-how-it-applies-certain-waiver-applications