What factors are considered in evaluating extreme hardship?

An applicant for suspension of deportation under former section 244(a)(1) of the Act, as in effect prior to April 1, 1997, or special rule cancellation of removal under section 309(f)(1)(A) of IIRIRA, as amended by section 203 of NACARA, must establish that his or her deportation or removal would result in extreme hardship to the applicant, or to a parent, child or spouse who is a United States citizen or lawful permanent resident alien. In adopting the same standards for special rule cancellation of remova l as were required for suspension of deportation under former section 244(a)(1) of the Act, prior to amendments by IIRIRA, Congress appears to have intended the same standard for extreme hardship to apply to both forms of relief. The phrase "extreme hardship" is not defined in the Act, and NACARA provides no additional guidelines for interpretation of this requirement. Instead, "extreme hardship" has acquired specific legal meaning through interpretation by the Board and Federal courts.

The Board has not set forth a bright line test for determining "extreme hardship," finding that "extreme hardship" within the meaning of section 244(a)(1) of the Act "is not a definable term of fixed and inflexible content or meaning. It necessarily depends upon the facts and circumstances peculiar to each case." Matter of Hwang, 10 I & N Dec. 448, 451 (BIA 1964). Over time, however, precedent decisions issued by the Board and federal courts have created a body of case law that has provided a framework for analyzing claims of extreme hardship. See Matter of Anderson, 16 I & N Dec. 596 (BIA 1978); Matter of Ige, 20 I & N Dec. 880 (BIA 1994); Matter of O-J-O), Int. Dec. #3280 (BIA 1996); Matter of L-O-G, Int Dec. #3281 (BIA 1996); Matter of Pilch, Int. Dec. #3298 (BIA 1996). In these decisions and others, the Board has enumerated a series of factors that are relevant to a determination of extreme hardship. These precedent decisions are binding on the Service and EOIR.

Under this proposed rule, asylum officers will be required to consider suspension of deportation and special rule cancellation of removal applications under the same legal standards that govern adjudication by the Immigration Court. Because of the breadth of the case law governing the "extreme hardship" standard, the Department has concluded that a regulatory compilation of the relevant factors and standards identified within this body of law would provide a more uniform and focused source for evaluating ex treme hardship claims. This proposed rule is not intended, however, to overturn or modify existing case law. Nor does it intend to limit the development through case law of other relevant factors. Instead, codification is intended to assist adjudicators, attorneys, and applicants to identify factors that may be relevant to an extreme hardship determination in the context of an application for suspension of deportation or special rule cancellation of removal. This regulation, however, does not codify the h igher standard of "exceptional and extremely unusual hardship" required under former section 244(a)(2) of the Act, as in effect prior to April 1, 1997, section 240A(b)(1) of the Act for persons seeking cancellation of removal, or section 309(f)(1)(B) of IIRIRA, as amended by NACARA, for persons seeking special rule cancellation of removal.

This proposed rule maintains the flexibility of the existing standard by identifying broad factors that have been cited in existing precedent decisions as relevant to the evaluation of whether deportation would result in extreme hardship to the alien or to his or her qualified relative. These factors are (1) the age of the alien, both at the time of entry to the United States and at the time of application for suspension of deportation; (2) the age, number, and immigration status of the alien's children an d their ability to speak the native language and adjust to life in another country; (3) the health condition of the alien or the alien's child, spouse, or parent and the availability of any required medical treatment in the country to which the alien would be returned; (4) the alien's ability to obtain employment in the country to which the alien would be returned; (5) the length of residence in the United States; (6) the existence of other family members who will be legally residing in the United States; ( 7) the financial impact of the alien's departure; (8) the impact of a disruption of educational opportunities; (9) the psychological impact of the alien's deportation or removal; (10) the current political and economic conditions in the country to which the alien would be returned; (11) family and other ties to the country to which the alien would be returned; (12) contributions to and ties to a community in the United States, including the degree of integration into society; (13) immigration history, inclu ding authorized residence in the United States; and (14) the availability of other means of adjusting to permanent resident status.

Ultimately, "extreme hardship" must be evaluated on a case-by-case basis after a review of all the circumstances in the case, and none of the listed factors alone, or taken together, automatically establishes a claim of extreme hardship. Nor is the list exhaustive, as there may be other factors relevant to the issue of extreme hardship in a particular case. The listed factors should not preclude consideration of other factors raised by an applicant, nor is an applicant required to show that each of the lis ted factors applies in the applicant's case, in order to establish extreme hardship. Conversely, an adjudicator is not required to consider factors that have not been raised in making an extreme hardship determination.

Generally, no single factor will be dispositive in making an extreme hardship determination. Matter of Anderson, 16 I & N Dec. 596. To establish extreme hardship, an applicant must demonstrate that deportation or removal would result in a degree of hardship beyond that typically associated with deportation or removal. For example, extreme hardship requires more than the mere economic deprivation that might result from an alien's deportation from the United States. Davidson v. INS, 558 F.2d 1361, 1363 (9th C ir. 1977), and Matter of Sipus, 14 I & N Dec. 229, 231 (BIA 1972). Loss of a job and the concomitant financial loss is not synonymous with extreme hardship. Matter of Pilch, Int. Dec. #3298. Similarly, readjustment to life in the native country after having spent a number of years in the United States is not the type of hardship that has been characterized as extreme, since most aliens who have spent time abroad suffer this kind of hardship. Matter of Chumpitazi, 16 I & N 629 (BIA 1978). The birth of a Unit ed States citizen child does not in itself provide a basis for a finding of extreme hardship. Davidson v. INS, 558 F.2d at 1363; Matter of Kim, 15 I & N Dec. 88 (BIA 1974). Nor does a significant reduction in one's standard of living or inability to pursue one's profession, in itself, compel a finding of extreme hardship. Matter of Pilch, Int. Dec. #3298.

The Board has also found that "a claim of persecution may not generally be presented as a means of demonstrating extreme hardship, for purposes of suspension of deportation." Matter of L-O-G, Int. Dec. #3281. In those cases in which a claim of persecution is raised, however, it must be examined from the perspective of extreme hardship, rather than on the basis of the criteria used to identify a refugee under asylum law. Ordonez v. INS, 137 F.3d 1120, 1123 (9th Cir. 1998). Consequently, issues such as the c ircumstances under which an individual left his or her country or the political consequences of such a return may be relevant to the discussion of listed factors such as the psychological impact of deportation or removal, current country conditions, immigration history, or remaining ties to the country of deportation or removal. See Matter of O-J-O, Int. Dec. #3280 (family's history of conflict with Sandinistas factored into evaluation of effect of current country conditions).

Thus, a factor that may not in itself be determinative may become significant, or even critical, when weighed with all the other circumstances and factors presented. Matter of L-O-G, Int. Dec. #328. Relevant factors that may not be considered extreme in themselves must be considered in the aggregate to determine whether extreme hardship exists. Matter of Ige, 20 I & N Dec. at 882. "In all cases, the particular degree of personal hardship resulting from each of the factors must be taken into account." Matter of L-O-G, Int. Dec. #328. Similarly, an adjudicator should not discount the effect of a factor simply because it is not unique to the individual. The Board has noted that the "word 'extreme' should not be equated with `unique' and hardship for suspension purposes need not be unique to be extreme." Id.

V. Adjudication by the Service

How will a decision be made if a person has applied for both asylum and suspension of deportation or special rule cancellation of removal?

An asylum officer will determine eligibility for suspension of deportation or special rule cancellation of removal concurrently with the determination of eligibility for asylum if an applicant who is eligible to apply with the Service under NACARA has applied for both forms of relief. After considering the information and documents submitted by the applicant, the testimony of the applicant and any witnesses presented at the interview, relevant country conditions information, and other information available to the asylum officer, the asylum officer will determine whether the applicant is eligible for suspension of deportation or special rule cancellation of removal or asylum. The Service will grant suspension of deportation or special rule cancellation of removal if the applicant is clearly eligible for the relief sought. If the Service finds that the applicant is not clearly eligible for suspension of deportation or special rule cancellation of removal and is ineligible for asylum, the asylum officer will ref er the application for suspension of deportation or special rule cancellation of removal to the Immigration Court (or dismiss the application without prejudice, if the applicant is in valid non-immigrant or immigrant status). The Service will also process the asylum application under the terms of the settlement agreement for eligible ABC class members or under 8 CFR 208.14 for all other NACARA beneficiaries.

When will the Service refer an application to the Immigration Court?

Under the proposed rule, asylum officers will not have the authority to deny an application for suspension of deportation or special rule cancellation of removal. Instead, an asylum officer will refer an application to the Immigration Court, if the applicant appears to be inadmissible or deportable and any of the following circumstances apply:

(1) The applicant appears to be statutorily ineligible for the relief sought;

(2) It appears that relief should be denied as a matter of discretion;

(3) The applicant appears to be eligible for relief only under the higher standards set forth in former section 244(a)(2) of the Act, as in effect prior to April 1, 1997, or section 309(f)(1)(B) of IIRIRA, as amended by NACARA (requiring, among other things, 10 years continuous physical presence and a showing of exceptional and extremely unusual hardship resulting from removal);

(4) The applicant appears eligible for relief only under the provisions that apply to battered spouses and children in former section 244(a)(3) of the Act, as in effect prior to April 1, 1997, or section 240A(b)(2) of the Act;

(5) The applicant declines to concede inadmissibility or deportability; or

(6) The applicant fails to appear for an interview or for a fingerprint appointment, and such failure to appear is unexcused. In the case of an unexcused failure to appear for an interview or for fingerprinting, the Service may refer the application to the Immigration Court without conducting an interview, or the Service may dismiss the application.

Generally, referrals to the Immigration Court will occur after the Service has evaluated the application and determined that the applicant is not clearly eligible for suspension of deportation or special rule cancellation of removal. In the case of applicants who are only eligible under the higher standard for either form of relief, referral is necessary to avoid complex determinations regarding admissibility or deportability that are more appropriately made by an immigration judge. Other grounds for refer ral are related to administrative efficiency and parallel provisions in 8 CFR part 208 with respect to the referral of asylum applications.

What happens if the Service finds that the applicant is eligible for suspension of deportation or special rule cancellation of removal, but is not eligible for asylum?

If the Service determines that the applicant is eligible for a grant of suspension of deportation or special rule cancellation of removal by the Service and makes a preliminary determination that the applicant is not eligible for asylum, The Service will grant the applicant suspension of deportation or special rule cancellation of removal and adjust the applicant's status to that of lawful permanent resident. When the Services notifies the applicant of the decision to grant suspension of deportation or spec ial rule cancellation of removal, the Service will notify the applicant that the Service has made a preliminary determination that the applicant is not eligible for asylum, but that the applicant has the right to continue to pursue the request for asylum. At the same time, the Service will give the applicant the opportunity to request to pursue the asylum application or to request in writing to withdraw the asylum application. If the applicant requests in writing to withdraw the asylum application, the appl ication will be dismissed without prejudice. If the applicant wishes to pursue the asylum application and the applicant is eligible for ABC benefits, the Service will send the applicant a Notice of Intent to Deny the asylum application and provide an opportunity to rebut the Notice of Intent to Deny pursuant to the terms of the settlement agreement. If the applicant is not eligible for ABC benefits and wishes to pursue the asylum application, the Service will send the applicant a Notice of Intent to Deny in accordance with current asylum procedures for applicants who are in valid immigration

status.

What happens if the Service determines that the applicant is eligible for both suspension of deportation or special rule cancellation of removal and for asylum?

If the asylum officer determines that the applicant is eligible for both asylum and a grant of suspension of deportation or special rule cancellation of removal by the Service, the Service will grant the applicant suspension of deportation or special rule cancellation of removal and adjust his or her status to that of lawful permanent resident. After the Service has adjusted the applicant's status to that of lawful permanent resident, the applicant will still be eligible for asylum. Section 208 of the Act provides that an alien who is physically present in the United States, or who arrives in the United States, may apply for asylum irrespective of the alien's status. Therefore, if an asylum officer has found that the applicant is eligible for asylum, the Service will grant the applicant's asylum application.

What happens if the Service finds that the applicant is eligible for asylum, but not suspension of deportation or special rule cancellation of removal?

If the Service determines that the applicant is eligible for asylum, but appears ineligible for suspension of deportation or special rule cancellation of removal, the Service will grant the application for asylum and dismiss the application for suspension of deportation or special rule cancellation of removal without prejudice.

What happens if the Service finds that the applicant is ineligible for asylum, suspension of deportation, or special rule cancellation of removal?

If the Service determines that the applicant is not eligible for a grant of asylum, suspension of deportation, or special rule cancellation of removal by the Service, and the applicant is not in valid immigrant or non-immigrant status, the Service will place the applicant in removal proceedings or move to recalendar or resume proceedings before EOIR if such proceedings were administratively closed or continued. The Service will refer the application for suspension of deportation or special rule cancellatio n of removal to the Immigration Court or, if proceedings before the Board and been administratively closed or continued, to the Board. The asylum application filed with the Service will also be referred to the Immigration Court, if the application is governed by current asylum regulations. The application for asylum will be denied, if the application is governed by the ABC settlement agreement.

What happens to a pending asylum application if the Service adjusts the applicant's status to that of lawful permanent resident?

Some asylum applicants may be eligible to adjust their status to lawful permanent resident through means other than section 203 of NACARA. For example, Nicaraguans and Cubans who have adjusted status under section 202 of NACARA may no longer wish to seek asylum in the United States. To avoid unnecessary scheduling of such persons for asylum interviews and unnecessary adjudications, the Service may notify the applicant that it intends to dismiss without prejudice the asylum application unless the applicant n otifies the Service in writing within 30 days of the date of the notice that the applicant would like to pursue the asylum request.

The process for adjudicating eligible ABC class members' asylum applications is governed by the ABC settlement agreement and the 1990 asylum regulations. Accordingly, this provision does not apply to them, and the Service will not presume their applications abandoned. However, if the Service grants an eligible ABC class member suspension of deportation or special rule cancellation of removal and makes a preliminary determination that the class member is not eligible for asylum, the Service may notify the class member of the negative preliminary assessment regarding asylum eligibility and give the class member the opportunity to withdraw the asylum request.

How will an application be processed if the applicant was in proceedings in Immigration Court that were administratively closed under the ABC settlement agreement?

Pursuant to the ABC settlement agreement, EOIR already has administratively closed proceedings for ABC class members who were in proceedings before the Immigration Court. This action was taken to afford the class members the opportunity to pursue a de novo asylum adjudication with the Service. Because these class members were in deportation proceedings prior to April 1, 1997, they may be eligible to apply for suspension of deportation. If the Service grants either asylum or suspension of deportation to a re gistered ABC class member whose proceedings with the Immigration Court were administratively closed, such grant of asylum or suspension of deportation will terminate those proceedings under this regulation. (The Department currently is engaged in efforts to clarify language in the ABC settlement agreement in accordance with this proposal for automatic termination of proceedings before EOIR upon a grant of asylum). If the Service denies asylum to a registered ABC class member whose previous proceedings were administratively closed and the asylum officer determines that the applicant is not clearly eligible for suspension of deportation, the Service will move to recalendar proceedings before the Immigration Court, pursuant to the settlement agreement. At the same time, the Service will refer to the Immigration Court the application for suspension of deportation.

How will applications be processed for applicants who have an appeal pending with the Board of Immigration Appeals, which was continued under the ABC settlement?

Pursuant to the ABC settlement agreement, the Board stayed or continued indefinitely appeals that had been filed by ABC class members in order to give them the opportunity to pursue the benefits of the settlement agreement. If the Service grants either asylum or suspension of deportation to a registered ABC class member whose proceedings with the Board were administratively closed or continued, such grant of asylum or suspension of deportation will terminate those proceedings under this regulation. (As not ed above, the Department currently is engaged in efforts to clarify language in the ABC settlement agreement in accordance with this proposal for automatic termination of proceedings before EOIR upon a grant of asylum.) If the Service denies asylum to an eligible ABC class member and does not grant suspension of deportation, the Board shall resume proceedings upon notice from the Service, under the terms of the ABC settlement agreement. The Service will refer the application for suspension of deportation to the Board. The Board will remand proceedings to the immigration judge solely for adjudication of the application for suspension of deportation unless the eligible ABC class member also moves for, and is granted, a remand of the asylum application pursuant to the terms of the ABC settlement agreement.

How will applications be processed for class members eligible for ABC benefits who have been issued a final order of deportation?

Section 203(c) of NACARA permits eligible NACARA beneficiaries with final orders to file a motion to reopen in order to pursue suspension of deportation or special rule cancellation of removal under NACARA. Section 203(c) requires that all NACARA beneficiaries who are under final orders of deportation, including ABC class members, must have filed a motion to reopen no later than September 11, 1998, in order to obtain relief under section 203 of NACARA. (The applicable rule, 8 CFR 3.43, was published in the Federal Register on June 11, 1998, at 63 FR 31890.) An ABC class member who has been issued a final order, but currently has an asylum application pending before the Service, may file an application for suspension of deportation with the Service only if he or she has filed a motion to reopen with EOIR, and the motion has been granted. Unless the case is reopened, the alien will remain subject to the order of deportation, which will be enforceable if the alien is denied asylum under the terms of the ABC settlement agreement. If the motion is granted, the ABC class member may move to have his or her deportation proceedings administratively closed in order to apply for suspension of deportation with the Service. As is the case for all NACARA beneficiaries with final orders, eligible ABC class members who have challenged their immigration proceedings in Federal court must file and be granted a motion to reopen by EOIR in order to seek relief under section 203 of NACARA. If the applicant has pending in Federal court a case that was stayed so that the applicant coul d pursue ABC benefits, the Government will wait until the application for suspension of deportation is adjudicated before requesting that court proceedings be resumed or dismissed.

All motions to reopen under section 203(c) of NACARA must have been filed on or before September 11, 1998. Therefore, any alien who did not file a motion to reopen by that date is no longer eligible to file a motion to reopen proceedings under section 203(c) of NACARA.