Contributed by Bryon Large, Senior Attorney
The concept of hardship under
United States immigration law is considered at varying levels, depending on the
benefit an immigrant is seeking. In
removal (deportation) proceedings, relief from removal can be sought in some
circumstances when various levels of hardship can be demonstrated to certain
qualifying relatives, such as cancellation of removal. The same is true when an immigrant is seeking
a waiver of some ground of inadmissibility to the United States, through an
I-601 waiver, for example.
Quite frequently, immigrants seek
relief in the form of Cancellation of Removal.
To be successful, one must demonstrate that they have been present in
the United States for at least ten years, been a person of good moral character
during that time, have not committed a crime which would disqualify them from
relief, and they must demonstrate that their resident or citizen spouse,
parent, or child would suffer an “exceptional and extremely unusual hardship”
if they were to be deported.
Other forms of relief from
removal require immigrants to file for inadmissibility waivers in conjunction
with their residency applications, such as for unlawful presence, fraud, or
criminal inadmissibility issues. Those
intending immigrants must file for a waiver of that ground of inadmissibility
and, to do so, must demonstrate that their United States citizen or permanent
resident spouse or parent would suffer an “extreme hardship” if the admission
to the United States is refused.
Both “exceptional and extremely
unusual hardship” and “extreme hardship” are legal terms found in the
Immigration and Nationality Act. Both
require a demonstration of different levels of hardship, and both require
something more than a normal type of hardship one would suffer in similar
circumstances. “Extreme hardship” is a
much lower standard than “exceptional and extremely unusual hardship,” which is
contemplated to be a very difficult standard to reach.
GLBT immigrant spouses may have
an easier time reaching this standard for a variety of reasons. In general, the Immigration Judge or Officer
will want to understand what type of hardship the U.S. citizen or permanent
resident spouse will suffer if the immigrant spouse is not admitted to the
United States or is deported. If the
couple is going to live apart, what type of hardship will the distance
create? If the couple is going to move
to the foreign national spouse’s home country, what type of hardship will this
create? The discussion on hardship goes
much further than an emotional or economical argument in many cases.
For same-sex couples, or for
couples where one of the spouses is transgender, there are many issues not seen
in cases presented by their opposite-sex couple counterparts. First, legal relationship recognition can be
a challenge, depending on the home country of the foreign national spouse. In those countries where the relationship
wouldn’t be recognized legally, it may be impossible for the U.S. citizen spouse
to acquire lawful immigration status in that country. Other difficulties associated with the lack
of lawful recognition may also exist, such as inheritance rights, visitation
rights when sick, etc. Documenting these
issues is important and highly relevant to the hardship inquiry in any legal
review of hardship.
More important, however, is the
case where it is culturally taboo and/or unsafe to be an “out” same-sex
couple. Living in a home together and,
perhaps having a family, will usually create a highly visible relationship
exposing both the foreign national and the U.S. citizen to harassment,
discrimination, and physical harm. Such
treatment by government or non-government actors in the foreign country can be
documented by news articles, State Department Country Conditions Reports, and
other local sources. This potential
hardship to the U.S. citizen is a much lower standard that we look for when
applying for asylum-related benefits based on persecution, and the question
always focuses on the U.S. citizen or lawful permanent resident spouse. Potential for harassment, discrimination, and
physical harm based on sexual orientation and on the relationship itself can
create varying levels of hardship that would be important for the Immigration
Judge or Officer to review in looking at hardship.
Finally, if the U.S. citizen or
lawful permanent resident spouse is HIV Positive, this can create unique
hardship factors, as well. The couple
will want to spend time thinking about the availability of treatment (medical
professionals and medication) in the foreign country, the ability to travel,
the U.S. citizen or lawful permanent resident’s current health conditions and
amount of treatment required, and the stigma of HIV status being disclosed in
the foreign country. In many developing
nations, access to healthcare can be inconsistent, difficult, and often
costly. This can create greater burdens
on the U.S. citizen or lawful permanent resident, particularly considering the
overall high quality of HIV treatment available in the United States. If the U.S. citizen or lawful permanent
resident spouse is in declining health, travel may become difficult, as
well. And there is an increased threat
of visibility of the relationship if one is undergoing HIV treatment in the
foreign country. If the social stigma of
HIV status is great, this may also lead to difficulty in finding work in the
foreign country, which can become part of the hardship factors weighed by the
government.
Naturally, these issues are
case-specific, and reviewing which country the foreign national spouse is from
is equally important. GLBT persons will
not find the same sorts of hardship in a place like France as they might in a
place like Jamaica. Careful review of
that country’s laws, tradition, and culture, as well as careful review of the
facts of the case come into play in determining each case’s strategy. Identifying as GLBT can create unique
hardship issues that are not necessarily seen in opposite-sex
relationships. It is important to spend
time weighing those issues and determining how to present those factors in a
light favorable to the hardship standard sought.
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