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The Element Of Discretion In 601 Determinations

by Steven D. Heller

When I was adjudicating I-601 waivers at the US Embassy in London my colleagues and I used to theorize on the element of discretion in waiver determinations. Some adhered to a strict constructionist view (discretion only comes into play once extreme hardship is established), others favored what I call a holistic approach (discretion, in a general sense, allows for a contextual assessment of hardship factors). I won't say which side I was on at the time, but I will note that I have certainly gained an appreciation for the holistic approach since leaving USCIS to enter into private law practice.

One of my attorney colleagues once suggested to me that he thought USCIS adjudicators tended to find hardship in cases in which there were US citizen children-even if the underlying inadmissibility excluded children from the list of qualifying family members (e.g. 212(a)(9)(B)). "They want US citizen kids to go to school in the United States," he mused.

Perhaps.

In my experience, the holistic approach to 601 waiver adjudication was, in effect, a means of ratcheting the extreme hardship standard one way or another. As such, an individual deemed inadmissible on account of an overstay of one year and two months might enjoy a more relaxed standard than someone who overstayed five years. Similarly, an applicant who worked as a nurse might have an easier time of establishing extreme hardship than, say, a web designer (n.b. I said "applicant" and not "qualifying family member").

Considerations such as those suggested above are not really related to extreme hardship, but they are clearly relevant for assessing discretion. Is the holistic approach putting the cart before the horse? In a sense, but maybe I was viewing it too narrowly.

It has been over 10 years since the Board of Immigration Appeals decided In re Mendez-Morales, a case in which the Board concluded that, despite establishing extreme hardship to a qualifying family member, it was appropriate to deny relief in the exercise of discretion because of persuasive negative factors (not the least of which being the applicant's conviction for first degree sexual assault). The framework of analysis applied in Mendez is clear: a finding of extreme hardship is a threshold determination, but it is not the end of the matter. After extreme hardship is found the adjudicator must then determine whether to exercise favorable discretion. And, of course, one favorable factor to be assessed is the finding of extreme hardship itself. But, Mendez also made clear (consistent with other cases) that the extreme hardship determination itself is to be made based on the totality of the circumstances. The question, then, is whether the holistic approach can be about applying the totality standard to the extreme hardship determination.

The factors generally associated with extreme hardship determinations include the following: the presence of lawful permanent resident or United Sates citizen family ties to the United States; 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 to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to an unavailability of medical care in the country to which the qualifying relative would relocate. See In re Cervantes-Gonzales, 22 I&N Dec. 560 (BIA 1999) (citing various predecessor cases dating back to Matter of Anderson, 16 I&N Dec. 596 (BIA 1978)).

For instance, take the presence of US citizen children on an INA 212(a)(9)(B) waiver. They are not qualifying family members; however, if their mother (spouse of the applicant) is suffering from the psychological and financial strain of having to coordinate medical care and special needs services in the country of removal for a child who is already well-situated in the US, the presence of the children becomes a contributing factor to assessing the hardship suffered by the USC spouse.

Conversely, consider a similar family, but where the qualifying family member and the applicant were both natives and citizens of the United Kingdom, where their extended families still reside, and where the inhabitants enjoy national health insurance. In that situation, notwithstanding the US citizenship of the children or other favorable discretionary factors, establishing extreme hardship would probably be difficult.

And then you get to discretion. Where extreme hardship is a totality determination, discretion is a balancing test (based on the record as a whole).

Some of the favorable factors found in case law are as follows:

  • Family ties in the United States and the closeness of the underlying relationship;
  • Unusual hardship to the applicant or to the lawful permanent resident or United States citizens, or relatives and employers;
  • Evidence of reformation and rehabilitation; Length of lawful residence in the United States and status held during that residence (particularly where the alien began his or her residency at young age);
  • Evidence of respect for law and order, good moral character, and intent to hold family responsibilities (such as affidavits from family, friends, and responsible community representatives);
  • Considerable passage of time since deportation or removal;
  • Deportation or removal for less serious reasons;
  • Absence of significant undesirable or negative factors; and
  • Eligibility for waiver of other exclusionary grounds.

Some of the unfavorable factors to consider are:

  • Evidence of moral depravity, or criminal tendencies reflected by an ongoing or continuing police record, the nature, recency and seriousness of the criminal violations, if any;
  • Repeated violations of immigration laws, willful disregard for other laws;
  • Likelihood of becoming a public charge;
  • Previous instances of fraud in dealings with US immigration authorities or false testimony;
  • Mandatory grounds of inadmissibility for which no waiver exists or for which the alien is not eligible;
  • Absence of close family ties or hardships;
  • Spurious marriage to a USC for the purpose of gaining an immigration benefit;
  • Serious violations of immigration laws which evidence a callous attitude without hint of reformation of character;
  • Nature and underlying circumstances of the exclusion ground at issue; and
  • The presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident of this country.

Upon review of the record as a whole, the adjudicator must balance the positive and adverse factors to determine whether discretion should be favorably exercised.

The extreme hardship standard has always been high, with or without a holistic approach. The core element of the determination is the facts-and the primary role of the attorney in representing a 601 waiver case is to make sure those facts are presented to the adjudicator-to populate the "record as a whole" both for the extreme hardship determination itself as well as for the discretionary determination. I suppose you could call that the "record as a whole-istic approach."


About The Author

Steven D. Heller is a solo practitioner based in Brighton, UK. He worked for USCIS for several years in various capacities, most recently at the USCIS office in the US Embassy in London. He can be reached at usvisa@btinternet.com.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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