how lawyer prepare for extreme hardship and cooperate to lea

by Annabell VonRueden 10 min read

How do I deal with a hardship case?

Extreme Hardship. You will find below an in-depth discussion of the legal standard of “extreme hardship” as well as extreme hardship factors commonly found in a successful I-601 waiver and I-601A provisional waiver application. Hypothetical I-601 waiver and I-601A provisional waiver cases are also included that demonstrate types of cases ...

How do you introduce exceptional hardship in court?

4.1. Extreme hardship factors. Factors the USCIS officer will take into account when determining extreme hardship can include (but are not limited to): The age of the alien, both at the time of entry to the United States and at the time of the application for relief; The age, number, and immigration status of the alien’s children and their ...

Should my client give evidence in a plea for exceptional hardship?

Appendix 1 Declaration Guide for Extreme Hardship Spouse in English Appendix 2 Declaration Guide for Extreme Hardship Spouse in Spanish Appendix 3 List of Evidence to Gather for Extreme Hardship Appendix 4 Non-LPR Cancellation of Removal Document Checklist Appendix 5 Sample Doctor Letter for Hardship Case

How do I prepare my client for a hardship hearing?

According to a policy adopted by U.S. Citizenship and Immigration Services (USCIS), your waiver will be approved if you can provide strong evidence that your relative will experience either: extreme hardship either in the U.S. (if you were not allowed to come to or stay in the U.S.), or. in your home country (if your relative follows you there).

What are the factors that determine extreme hardship?

Factors the USCIS officer will take into account when determining extreme hardship can include (but are not limited to): The age of the alien, both at the time of entry to the United States and at the time of the application for relief;

What is extreme hardship?

The “extreme hardship” must be to a qualifying immediate family member who is a U.S. citizen or lawful permanent resident (“green card” holder). Depending on the waiver being sought, a qualifying family member is usually ... 5 Examples of First-Degree Murder in California. Some types of immigration waivers can be granted only if ...

What evidence is included in a court case?

In general, however, such evidence will often include (but is not limited to): Expert opinions; Medical or mental health tests and evaluations by licensed professionals; Official documents, such as birth certificates, marriage certificates, adoption papers, or other court documents; Photographs;

Can you show hardship to multiple family members?

A waiver applicant need show extreme hardship to only one qualifying relative. Or the applicant can show hardship to multiple family members that would not qualify as extreme as to any one of them, but which, when considered in the aggregate, add up to extreme hardship. There is no hard and fast rule.

Can you get a waiver for a new life?

Yes, depending on the particular waiver being sought. But, in general , mere economic challenges and difficulty in adjusting to a new life hold less weight than serious medical conditions or dangerous conditions within another country. 4.3.

Can a non-citizen be waived?

But sometimes a waiver is only available if the non-citizen can prove that if he or she is not admitted into, or allowed to stay in, the U.S. it would result in “extreme hardship” to the applicant’s family.

Is a spouse a qualifying relative?

Different waivers have different definitions of “qualifying relative.”. In all cases, a spouse counts as a qualifying family member. In most cases parents and/or children also qualify for the extreme hardship test.

What are the arguments for extreme hardship?

Some of the more common arguments for extreme hardship when your relative accompanies you to your home country include, but are not limited to: Your home country is in or on the verge of war and/or political upheaval. Your relative has a serious medical condition that cannot be adequately treated in your home country.

What is a country report?

Country reports issued by the U.S. Department of State, or other governmental or human rights organizations, outlining the conditions of your home country that will lead to extreme hardship. Letters from medical professionals as evidence of physical and/or emotional conditions that will lead to extreme hardship.

What is a relative?

Your relative does not know the language of your home country. Your relative is a primary caretaker for a sick family member in the United States.

Can I get a waiver if I am blocked from getting a green card?

If you are attempting to get a visa or green card in the U.S., but are blocked by being inadmissible, you may be eligible to file for a waiver of certain grounds of inadmissibility based on the extreme hardship your qualified relative will experience if you are not admitted to the United States. (This is typically done using USCIS Form I-601 ...

What is a relative dependent on?

The U.S. relative has a medical condition and depends on the foreign-born person for care. The U.S. relative is financially dependent on the foreign-born one and it will not be possible to provide adequate support from abroad.

Why can't my relative live in my home country?

Your relative has children from a previous relationship who will not be allowed to live or visit your home country due to custody issues. Your home country has a high rate of violence. Your relative has financial debt in the U.S. that cannot be paid from your home country.

Can you prove that your relative would experience extreme hardship?

You can, if you wish, prove that your relative would experience extreme hardship in both potential situations. But if only one situation would cause extreme hardship, be prepared to prove that that is the one you and your U.S. relative would choose. Also keep in mind that the qualifying relative does NOT have to be the same one who petitions ...

What are the factors that determine extreme hardship?

The final guidance also identifies five factors that “often weigh heavily in support of a finding of extreme hardship.” While the existence at the time of adjudication of one or more of these “particularly significant factors” would not create a presumption of extreme hardship, they are “often likely to support findings” of it. The five particularly significant factors are: 1 Qualifying relative was granted Iraqi or Afghan Special Immigrant Status, T nonimmigrant status or asylee or refugee status from the waiver’s applicant’s country of relocation 2 The qualifying relative is on active duty with any branch of the U.S. Armed Forces 3 Either the qualifying relative or a member of the household who is dependent on the qualifying relative’s care is disabled or suffers from a medical/physical condition that makes travel to or residence in the foreign country detrimental to his or her health or safety 4 The Department of State has issued either a countrywide travel warning or one for a region of the country where the applicant or the qualifying relative would likely relocate 5 Separation would result in the qualifying relative becoming the primary caretaker – and possibly income-earner – for the couple’s children or otherwise taking on significant parental or other caregiving responsibilities.

What is a qualifying relative statement?

The qualifying relative is required to submit a statement certifying under penalty of perjury the decision either to relocate with or to separate from the waiver applicant in the event the waiver is denied. The statement should be “sufficiently detailed” and “credible,” and should explain the reasons for the decision.

When did USCIS release the final guidance?

On Oct. 7. 2015, the agency issued a draft guidance that proposed significant changes to the existing assessment of extreme hardship, but did not incorporate the presumption of hardship criteria. Following a public comment period, USCIS has now released the final guidance, which reflects some changes from the initial draft.

Can a child be a qualifying relative?

Children cannot be qualifying relatives under the requirements for waivers for fraud or unlawful presence, nor can hardship to the waiver applicant be considered. Nevertheless, “the hardship experienced by non-qualifying relatives can be considered as part of the extreme hardship determination, but only to the extent that such hardship affects one or more qualifying relatives.” For this reason, the guidance encourages applicants to describe the emotional or other hardship that the qualifying relative parent would experience due to the suffering of a child who must either relocate to a foreign country or remain separated from the applicant. This “derivative hardship” is one of the factors that adjudicators must consider in weighing the totality of the circumstances.

Do hardship factors have to be considered in aggregate?

Adjudicators are reminded that the hardship factors must be considered in the aggregate and that no single hardship, taken in isolation, needs to rise to the level of extreme. This principle is already set forth in administrative appeal decisions and is codified in the SOP.

Do you need to establish a bona fide relationship with a dependent child?

The applicant will need to establish a bona fide relationship between the child and either the applicant or the qualifying relative. For purposes of this hardship factor, the immigration status of dependent children is irrelevant – they may be U.S. citizens, LPRs or undocumented.

Can a widow file an I-130 waiver?

The guidance also explains that widow (er)s whose U.S. citizen spouse had filed an I-130 petition before dying qualify to file a waiver if they were residing in the United States at the time of the death and continue to reside here.

What is the purpose of inadmissibility waiver?

For the purpose of inadmissibility waivers, you must prove that a “qualifying family member” will suffer extreme hardship due to your continued inadmissibility. Who constitutes a “qualifying family member” is based on why you were labeled Inadmissible.

What is the discretionary process used by USCIS?

The USCIS uses a discretionary process to decide if there is extreme hardship in any given case. In making this determination, the USCIS officer will decide if your alleged hardship, taken as true, is “extreme”. This question is answered by looking at two situations:

What would happen if a mother returned to her home country?

If forced to return to her home country, her U.S. citizen children would face extreme hardship because they do not know the language or culture, would be forced to abandon their education, and under the current political climate of the mother’s home country there is a real concern for the children’s safety.

What is extreme hardship?

When attempting to establish “extreme hardship,” there are two important things you should keep in mind: Extreme hardship requires a degree of hardship beyond that typically associated with family separation.

Does USCIS consider extreme hardship?

Rather, the USCIS considers “extreme hardship” on a case-by-case basis while considering any number of factors. No two cases are the same. What is required to prove extreme hardship in one case may not be required in your case. Moreover, USCIS must consider ALL relevant factors.

Can you be declared inadmissible?

There are a number of reasons you can be declared “inadmissible.”. However, not all declarations of inadmissibility can be excused through “waiver.”. Not all waivers can be proved through “extreme hardship.”. In the following tables you can find the more common grounds for an inadmissible finding, if this can be overcome with a waiver, ...

Does USCIS have discretion?

The USCIS officer has considerable discretion in deciding whether all the circumstances taken together (not just extreme hardship) merit the granting of a waiver. Neither immigration law nor the USCIS policy manual identifies a specific type or amount of evidence necessary to establish eligibility for a waiver.

Why is documentary evidence important?

Documentary evidence is really important in exceptional hardship cases. It can often make or break a case. Spend some time discussing what documents your client can produce for the hearing.

How many points can you get for not being a lawyer?

If you are not a lawyer, have been accused of a motoring offence and are likely to reach 12 penalty points or more then the information might be useful for you. If the court accept that you will suffer exceptional hardship as the result of the 6 month minimum disqualification you may not be banned at all.

Why are character references important?

General character references can sometimes be helpful. They show that you and your client take the case seriously and can help present your client in a good light. They are less important than letters giving practical information about exceptional hardship.

What is general mitigation?

General mitigation: Credit for guilty plea, remorse, apologise for committing the offence. Offence mitigation: This should usually be pretty brief or avoided altogether. Most of these cases are speeding matters where your client will get 3 points and a fine. Mitigation won’t change that.

How long should a client talk?

You need to have a long talk (absolute minimum 30 minutes) with your client about their personal circumstances. I prefer to take instructions over the phone but a face-to-face meeting is fine. Find out all that you can about them. Use the following as a framework.

Does the CPS prosecute exceptional hardship cases?

Not many exceptional hardship cases are prosecuted by the CPS. Most of them are dealt with by police prosecutors in specialist motoring courts. Everyone is aware of the commin issues. Deal with them and make sure that you have answers when you are taking instructions.

Is it harder to plead exceptional hardship?

The plea for exceptional hardship is stronger and it is emotionally more difficult for the court to reject it. If you have prepared the case properly (and taken a proof) giving evidence should be easy. If I have a client who will not come across well or who is over-anxious I will revert to no. 1.

What is hardship showing?

The hardship showing, in contrast, must be a joint effort —the client is the expert on her life and the key to identifying hardship and securing evidence. Advocates guide this process, frame the information, and connect it to the legal requirements. Consequently, the advocate-client partnership is crucial to proving a winning hardship case.

What is the burden of proof for a waiver?

The waiver applicant has the burden of proof. In other words, the applicant bears the burden, or responsibility, of proving extreme hardship to the Qualifying Relative. They must establish that a Qualifying Relative would suffer extreme hardship by a preponderance of the evidence (the standard of proof), which means the probability that extreme hardship would result is more likely than not. The standard of proof refers to the degree to which the applicant must convince the adjudicator that extreme hardship will result if the waiver is denied. See Matter of Chawathe, 25 I&N Dec. 369, 376 (AAO 2010).

What is extreme hardship?

Almost every person applying for a form of immigration relief will suffer some hardship if the application is not granted. However, by requiring “extreme hardship” for certain forms of relief, the government is asking for a showing of how certain family members would suffer more than what could be expected. The regulations at 8 CFR § 1240.58(b)—in the Suspension of Deportation context—state that the hardship must be “beyond that typically associated with deportation.” Cases have also explained that the hardship must exceed what is usual or expected. See, e.g., Hassan v. INS, 927 F.2d 465 (9th Cir. 1991); Matter of Cervantes-Gonzalez v. INS, 244 F.3d 1001 (9th Cir. 2001). Although “extreme hardship” must be beyond what is “to be expected,” it does not need to be unique. Matter of L-O-G-, 21 I&N Dec. 413, 418 (BIA 1996). A 2002 BIA case, Matter of Andazola, clarified that “extreme hardship” is not as demanding as the “exceptional and extremely unusual” hardship standard. Matter of Andazola, 23 I&N Dec. 319 (BIA 2002).

What is hardship waiver?

Instead, hardship waivers focus on hardship that certain qualifying family members would suffer, if the applicant is denied a waiver. These family members are referred to as Qualifying Relatives, and the applicant must prove that the Qualifying Relative (QR) would experience hardship if the waiver is denied. If the would-be waiver applicant does not have any QRs, then they are not eligible to seek a waiver.

What is hardship in immigration?

Hardship can be helpful to show when applying for many different forms of immigration relief . However, some forms of immigration relief statutorily require some level of hardship. For example, hardship is required for Suspension of Deportation under old INA § 244(a), Non-LPR Cancellation of Removal under INA § 240A(b)(1), VAWA Cancellation under INA § 240A(b)(2), and also for several inadmissibility waivers—the 212(h) waiver for certain criminal grounds, 212(i) waiver for fraud or misrepresentation, and the unlawful presence waiver for the three- and ten-year bars.

Which is better, C or B?

C is the best of the options above, but there is no right answer. Be creative. Here, C is better than A or B because while A just talks about splitting up the family and Rashid’s mother’s health condition, and B just talks about how his daughters would suffer, C covers all those key points—the country conditions and how his wife and daughters would be affected by relocating to Afghanistan, in addition to splitting up the family and his mother’s health condition.

Does Kelda have a daughter?

She must prove that if the waiver is not granted, Adam will suffer extreme hardship. Kelda and Adam have a seven-year-old daughter, Mia, who has been diagnosed with autism and receives special services at her school; these same services would not be available in Kelda’s country of origin.

What is considered inadmissible?

The Immigration and Nationality Act and its corresponding regulations define which persons are inadmissible. Persons found inadmissible are those who are unable to obtain a green card through consular processing, apply for adjustment of status from within the US, and unable to obtain a nonimmigrant visa to visit the US. You might find yourself inadmissible because you committed certain crimes, acted fraudulently in an effort to obtain an immigration benefit, or have accumulated more than six months of unlawful presence in the US.

Can a criminal conviction be waived?

If you have a criminal conviction that can be waived, you may be eligible if you can show that your US citizen or lawful permanent resident spouse, parent, or children would suffer extreme hardship if the waiver is not granted.

Can a US citizen get a waiver for fraud?

Like the unlawful presence waiver, you must show extreme hardship to your US citizen or green card holding spouse or parent in order to obtain a waiver for fraud. Again, children are qualifying relatives. Often, immigrants make the mistake of focusing on the hardship to their children when they are qualifying relative. This mistake will result in a challenge or a denial of your waiver application.

Who is not a qualifying relative?

Therefore, children, siblings, and other extended family members are not qualifying relatives.