Friday, May 13, 2016

Immigration Article of the Day: Hardship Reconstructed: Developing Comprehensive Legal Interpretation and Policy Congruence in INA § 240A(b)’s Exceptional and Extremely Unusual Hardship Standard by Lucy Twimasi

Hardship Reconstructed: Developing Comprehensive Legal Interpretation and Policy Congruence in INA § 240A(b)’s Exceptional and Extremely Unusual Hardship Standard by

Lucy Twimasi

April 30, 2016, UCLA Chicana/o-Latina/o Law Review, Forthcoming 

Abstract:     U.S. immigration laws are designed to balance competing policy interests dictating when and the country should be amenable to opening its doors to foreign nationals. Given the existence of these competing interests, U.S. immigration law has a structure that is stringent and forgiving — rigorous yet generous. Like many other forms of relief built into U.S. immigration law, removal relief statutes recognize that removable foreign nationals who entered the country without authorization or remain in the country without legal status have formed attachments, contributed to the economy and possess certain characteristics valuable to the country’s social construct. Therefore, perhaps, it is ideologically impermissible to remove them. In the same vein, certain removable people who support permanent resident and U.S. citizen family members are eligible for relief because they add value to the lives of their families and to the U.S. social fabric. Nevertheless, the U.S. also seeks to enforce its immigration laws where they have been broken.

With all of these policy goals in mind, Congress has enacted relief-based immigration laws seeking to retain individuals who are otherwise removable. The cancellation of removal statute for non-lawful permanent residents (“non-LPRs”) is one such immigration law illustrating competing ideologies — the value in giving certain undocumented people a pathway to U.S. citizenship; and at the same time, fairness in requiring them to meet rigorous eligibility standards before the status is accorded. Specifically, the “exceptional and extremely unusual hardship” standard has evolved to become the dividing line between individuals who will gain relief and those who will not. The standard requires a fact-intensive inquiry into the lives of the removable person, his or her family members, and the many esoteric hardship possibilities that may arise if the person is removed. The outcome of this inquiry will turn on a question of interpretation, which is the factor most fraught with legal uncertainty and policy-based disharmony.

There are three problems restraining uniform interpretation of the hardship standard in the Immigration and Nationality Act’s (INA) cancellation of removal for non-LPRs. First, Congress does not provide substantive directives on the kinds of situational factors constituting exceptional and extremely unusual hardship. As a result, adjudicators are left to interpret the standard on a case-by-case basis. Secondly, administrative case law that would serve as precedent for immigration judges, practitioners and removable people is lacking because only three Board of Immigration Appeals (the Board) cancellation decisions directly addressing the hardship standard have been published to date. Lastly, the U.S. federal appellate courts are, in many ways, precluded from reviewing the Board’s discretionary decisions. Thus, respondents in cancellation of removal cases are largely barred from seeking judicial review of the Board’s decisions relating to its interpretation of the hardship standard. Without judicial review yielding precedential case law, the meaning of the standard can be subject to changing interpretations.

The three seminal cases published by the Board confirm that the adjudicators’ interpretation of the hardship standard will produce counterintuitive policy outcomes for removable people and their families. A closer look into the Board’s case rationale shows that the Board is denying cancellation in cases where the removable person faces major losses if he or she leaves the U.S. If we are to follow the Board’s precedent, factors such as having a business, financial assets, and a unified family can serve as evidence against a removable person.

This Article will argue that because Congress has not substantively defined the cancellation of removal hardship standard, interpretation of the standard is causing idiosyncratic outcomes and creating undue hardship for removable people and their families. Although adjudicators use factors to define the standard, its interpretation is inconsistent and varies from one case to the other. Notably, the interpretation of the hardship standard is causing outcomes that are not congruent with emerging U.S. immigration policy.


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