• Extreme Hardship Waivers
  • September 25, 2015 | Authors: Wendy Rebecca Barlow; Eliza Grinberg; Alexander Joseph Segal
  • Law Firm: The Law Offices of Grinberg & Segal, PLLC - New York Office

    Extreme Hardship is a legal standard utilized in U.S. immigration law. It applies to some situations when certain unlawful activities of the noncitizen have made him or her inadmissible into the United States. From a practical perspective, when a noncitizen is inadmissible, he or she would not be eligible to obtain a favorable immigrant visa adjudication at an American Consulate or adjustment of status from within the United States.

    The phrase “extreme hardship” carries a specific meaning in U.S. immigration law. It refers to a standard utilized by adjudicators to determine whether deportation, or in the modern system, removal of the noncitizen from the United States, would cause extreme hardship to a qualifying relative. Depending on the specific ground of inadmissibility, a U.S. citizen (USC) or lawful permanent resident (LPR) spouse, parent(s), or son(s) or daughter(s) may be qualifying relatives.

    Extreme hardship waivers are discretionary. This means that if an immigration adjudicator decides against granting an extreme hardship waiver, an appellate agency or court has very limited authority to review the decision. These limitations were intended by Congress to ensure finality in decisions by concentrating authority over extreme hardship waivers in immigration adjudicators.


    There are multiple extreme hardship waivers available. Extreme hardship waivers of inadmissibility for unlawful presence are available pursuant to INA § 212(a)(9)(B)(v). INA §212(h)(1)(B) authorizes waivers of crimes of moral turpitude, multiple criminal convictions, and a single offense of simple possession of 30 grams or less of marijuana. At the discretion of an immigration adjudicator, certain offenses may even be waived even if they constitute aggravated felonies under statute. However, waivers of inadmissibility stemming from certain violent or dangerous crimes instead requires showing “exceptionally and extremely unusual hardship,” which presents a higher bar to demonstrate than regular extreme hardship.

    Extreme hardship waivers of inadmissibility related to fraud and misrepresentations in order to procure immigration benefits exist under INA §212(i). Suspension of Deportation, a now outdated form of relief that existed prior to 1997, used the same standard of extreme hardship.

    By contrast, Cancelation of Removal relief for both LPRs as well as nonresidents utilizes the “exceptionally and extremely unusual hardship standard,” except in the case of relief for battered spouses and children of USCs and LPRs, who may instead only have to demonstrate extreme hardship.


    Understanding applicable precedents is the best way to understand the meaning of the phrase “extreme hardship.” This is because Congress often writes laws in broad strokes sufficient to formulate the policy, and leaves the power to fill in the details to the executive branch. In the case of “extreme hardship,” Congress did not define what exactly constitutes “extreme hardship,” thus leaving the details to immigration administrators and federal courts.

    The leading administrative case on extreme hardship is the Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999). Cervantes arose in the context of the INA §212(i) waiver adjudication. The Board of Immigration Appeals (BIA) decided this case in 1999, and Cervantes has remained precedent ever since. Cervantes is about a young man from Mexico who lived in the United States for many years. In 1995, Cervantes, then twenty-four years of age and mired in immigration proceedings, married an LPR. His wife, who shortly after the marriage became a Naturalized US citizen, served as a qualifying family member for purpose of Cervantes's eventual extreme hardship waiver application. The government charged Cervantes with inadmissibility for fraud or misrepresentation of a material fact and put him in removal proceedings. As part of his defense against removal, Cervantes requested adjustment of status based on an approved visa petition filed by his USC wife. Because he had previously been caught using false documents, he was deemed inadmissible and thus ineligible for adjustment of status. To resolve the problem, Cervantes also requested a waiver of inadmissibility pursuant to INA §212(i), asking the Court to waive his inadmissibility so that he could adjust status.

    An immigration judge denied Cervantes’ request for a waiver, thus setting the stage for Cervantes to appeal to the BIA. After hearing the case, a majority on the BIA dismissed the appeal. The BIA decided that Cervantes's family had not demonstrated that they had managed to develop meaningful financial ties to the United States. The majority held that the lack of such ties was an important factor in its evaluation of whether Cervantes warranted a waiver.

    The BIA further explained that Cervantes's wife was well aware prior to marrying Cervantes that he was in the midst of deportation proceedings. The BIA highlighted the fact that Cervantes's wife was of Mexican origin and had relatives who were then living Mexico, thus mitigating the extreme hardship claim. The BIA also noted that during the proceedings, Cervantes’ wife never mentioned that she would suffer extreme hardship if she and her husband moved to Mexico. Given all these factors, BIA found that Cervantes's wife would not experience extreme hardship in the event that she followed her husband to Mexico.


    Matter of Cervantes is very important for several reasons.

    First, it reinforced the factors that should be considered when evaluating an application for an extreme hardship waiver. Despite being decided in 1999, Cervantes is still good law on evaluating extreme hardship claims. The reason for its longevity is that between the majority and the dissenting opinion, the BIA did an excellent job of explaining the concept of extreme hardship as well as providing guidance to understanding of how it works in the context of removal proceedings. The BIA noted that extreme hardship can be viewed narrowly, but not so narrowly that it should be nearly impossible to demonstrate. Since Congress clearly created the extreme hardship waiver to prevent USC and LPR qualifying relatives from suffering extreme hardship in the event of an alien’s removal, the BIA noted that the waiver should be granted provided that extreme hardship can be successfully demonstrated.

    Second, due to the BIA’s status among immigration adjudicators, its precedent opinions are binding so long as they stand.

    Third, and perhaps most important, the BIA explained in Cervantes that the meaning of extreme hardship and provided clear way for immigration judges to approach the issue. It provided clarity for how “extreme hardship” as a concept would be implemented in the context of inadmissibility waivers. The Board followed federal case law and held that, although extreme hardship was not a rigid concept which could be defined strictly in regulatory terms and that it must be viewed instead on a case-by-case basis, there are general factors that should always be considered when making an extreme hardship determination. The BIA also opined, at the very least in the dissenting opinion, that the cumulative effect of all these factors on the qualifying relative should be determinative in deciding whether the noncitizen seeking a waiver should be allowed to remain with his or her family in the United States.

    Fourth, an opinion authored by then-BIA member Lory Diana Rosenberg, which concurred with the majority in-part but dissented with regard to its decision to deny Cervantes an extreme hardship waiver, arguably sheds even more light on what factors should be considered, and how they should be weighed, than dud the majority opinion. Ultimately, Judge Rosenberg’s opinion is at least as important to read as the majority opinion because it provides a detailed overview of the factors relevant to extreme hardship law as it stood when Cervantes was being decided. Judge Rosenberg’s opinion does a good job emphasizing that some factors not mentioned in the majority opinion were very important for any adjudicator to consider, at least in the view of the Ninth Circuit Court of Appeals and the U.S. Supreme Court. It is also worth mentioning, as the dissenting opinion noted, that the relevant inquiry should not be whether any particular factor, or a group of factors, creates extreme hardship for the qualifying relative, but instead whether the cumulative effect of all relevant factors creates extreme hardship for the qualifying relative. This is a very important distinction the majority regrettably did not address. Had it done so, it would have likely concluded, as Judge Rosenberg did, that Cervantes warranted a waiver. Fortunately, since Cervantes was decided, the factors noted by Judge Rosenberg and her approach to weighing them have steadily gained support among immigration adjudicators, and judges. Some of the specific factors Judge Rosenberg noted include the economic conditions in the country where the qualifying relative would follow his or her noncitizen family member; the extent of the family ties of the qualifying relative in the United States; overall family situation; length of residence in the United States; the ability to raise children in the foreign country in question; the education and professional skills of the qualifying relative especially in the context of his or her employability in the foreign country; other factors not noted but possibly applicable to a specific case.

    Fifth, Judge Rosenberg's dissenting opinion contains a landmark explanation of why selectively not weighing certain factors, not weighing certain factors enough, or excessively weighing other factors, invariably leads to an arbitrary decision that is a disservice both to the applicant and to the system of immigration laws as a whole. She argued, quite convincingly, that if the majority had properly weighed all of the factors in the case, it would have granted Cervantes’ request for a waiver.


    BIA made several consequential legal conclusions in Cervantes decision. First, the Board, as the highest administrative tribunal for removal and deportation issues, decided that the meaning of the extreme hardship was not fixed. This holding makes sense since the specific facts of each extreme hardship claim are unique. A factor that may support extreme hardship in one case may not support extreme hardship in another case, and vice versa.

    However, the BIA reasoned that, while each case is unique, this does not preclude there from being certain uniform factors that should always be considered. To identify these factors, the Board turned to accumulated existing precedent which governed the now-defunct suspension of deportation relief. The Board also looked at precedent from waiver adjudication under INA §212(c), which was the inadmissibility waiver of certain criminal conduct and convictions, subsequently replaced by the INA § 212(h) waiver. The majority eventually identified five general groups of factors that should always be taken into account when considering an extreme hardship claim:
    • qualifying relative's ties to the United States, including financial and other;
    • qualifying relative's ties outside the United States including financial and other;
    • political and economic condition in the country of return which might cause hardship to the US relative;
    • financial impact of departure on the qualifying family member;
    • health conditions of the applicant and his family, especially if the needed medical care is not available in the country of return.

    Matter of Cervantes still stands today because the decision was sound. It has been cited in a multitude of extreme hardship cases since it was decided. For example, Julie C. Ferguson cited in her book “AILA’s Focus on Waivers Under the Immigration & Nationality Act,” Matter of [name and A-number redacted] (AAO Jan 9, 2008), a decision by the Administrative Appeals Office (AAO) to overturn the denial of an INA § 212(i) waiver application by the consular officer-in-charge in Athens, Greece, based on extreme hardship that would be suffered by his wife in the event of his removal to Lebanon.1

    After reviewing the facts of the case closely and applying the factors and methods from Cervantes, the AAO found that the applicant's wife would suffer extreme hardship both if she was forced to stay in the United States and take care of the couple’s child alone, and if she followed her husband to Lebanon in the event of his removal.2

    Evidence demonstrated that the wife suffered from depression, panic attacks and anxiety disorders. She was at risk of recurrence since her mother experienced similar problems and she lost her father at a young age. She also suffered from hair loss and could not stay home alone because she was lonely and scared. Her son suffered from asthma and often required medical attention, including hospitalization. All of these factors about her son's health contributed to even more stress for the wife. The case record also showed that during previous travel to and from Lebanon, her son required medical care. The medication that he needed was not available in Lebanon, and the family would not have health insurance to cover these medical expenses. The case record contained reports about adverse conditions in Lebanon that would contribute to extreme hardship for the wife. The applicant also included a Department of State travel advisory encouraging Americans to avoid traveling to Lebanon. Based on the evidence, and in light of precedents including Matter of Cervantes, the AAO found that the applicant and his wife would experience extreme hardship if his waiver of inadmissibility was denied.3

    Many years have elapsed since the important Cervantes decision. Over these years, the BIA and federal courts have developed a long list of factors that are applicable to demonstrating extreme hardship. While factors do not weigh the same in every case, Cervantes and other precedents paint a picture on what may be used to support an extreme hardship waiver application.

    1 J. Ferguson, AILA’s Focus on Waivers Under the Immigration & Nationality Act (AILA 2008) 142, describing Matter of [name and A-number redacted] (AAO Jan 9, 2008), published on AILA InfoNet at Doc. No. 08011562 (posted Jan. 15, 2008)
    2 Id.
    3 Ferguson 143, describing Matter of [name and A-number redacted] (AAO Jan 9, 2008), published on AILA InfoNet at Doc. No. 08011562 (posted Jan. 15, 2008) [for the section]