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Patrick Glen

excerpted from: Patrick Glen, The Removability of Non-citizen Parents and the Best Interests of Citizen Children: How to Balance Competing Imperatives in the Context of Removal Proceedings, 30 Berkeley Journal of International Law 1 (2012) (186 Footnotes Omitted)


. . . US immigration law is codified in the Immigration and Nationality Act of 1952 (INA), as amended. Non-citizens may be subject to deportation proceedings in the United States because they are either inadmissible or deportable under sections 212 and 237, respectively, of the INA. The former applies to aliens seeking lawful admission to the United States, whereas the latter applies to aliens who have been admitted or are otherwise already present in the United States. If the US Government successfully establishes that an alien meets the criteria for inadmissibility or deportability, the alien is then placed in removable status regardless of whether they may have US citizen children. In other words, the sole consideration at this stage is whether the alien falls within the inadmissibility or deportability criteria of the INA.

Nonetheless, the INA does provide that otherwise removable aliens may apply for certain waivers. Some of these waivers are available only for spouses and children of US citizens, thus excluding parents of US citizens. For instance, if an alien is inadmissible under INA section 212(a)(6)(C)(i) for seeking to procure or procuring a US visa, immigrant documentation, or admission by fraud or willfully misrepresenting a material fact, he may apply for a waiver under INA section 212(i)(1) if he is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence and it is established to the satisfaction of the Attorney General that the refusal of admission . . . of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent[.] Other waivers are available without regard to whether the non-citizen alien has a qualifying relationship with a US citizen. For example, INA sections 212(d)(11) and 237(a)(1)(E)(iii) provide for waivers if the Attorney General charges the alien with smuggling, provided that the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was the alien's spouse, parent, son, or daughter[.] The imperative behind these waivers, as with other relief provisions of the INA, is family unity.

For other waivers, the fact that a non-citizen parent may have a US citizen child will be a factor in determining his eligibility for such a waiver. In such circumstances, the importance of this qualifying relationship may trump otherwise compelling interests in the removal of the non-citizen parent. For instance, under the INA, [a] ny immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party . . . domestic or foreign is inadmissible. Nonetheless, the Attorney General may waive this provision if the immigrant is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States . . . for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States. The Attorney General may deem an alien inadmissible if they have a communicable disease of public health significance. The Attorney General may waive this ground in the case of an alien who . . . has a son or daughter who is a United States citizen[.] Criminal convictions, involvement in criminal schemes, and intent to engage in illegal activities if admitted to the United States are encompassed by numerous grounds of inadmissibility and removability. The INA nonetheless provides certain waivers even in cases of criminality. The Attorney General, however, may waive certain criminal grounds of inadmissibility in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States . . . if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen . . . spouse, parent, son, or daughter. If the US Government deems that an alien within the United States is removable on account of being inadmissible at the time of his admission, the alien may obtain a waiver from the Attorney General if he or she is the spouse, parent, son, or daughter of a citizen of the United States, assuming he or she meets other eligibility criteria.

Beyond the statutory exceptions that the Attorney General must make in these types of cases, including discerning whether, in the appropriate cases, the non-citizen has a qualifying relationship with a US citizen, discretionary factors are the most important facet in determining whether waiver should be granted. The Department of Justice Board of Immigration Appeals has the ultimate discretion as to whether to grant or deny a waiver, but as part of that determination the Board must make an initial statutory eligibility determination about whether the removal of the alien will result in extreme hardship to a qualifying relative. The Board, however, does not define extreme hardship in the context of the preceding waivers. As the Board has written, extreme hardship is not a definable term of fixed and inflexible meaning, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case. Nonetheless, in its decision in Matter of Cervantes-Gonzalez, the Board did enumerate certain factors that would be relevant to the determination:

The factors deemed relevant in determining extreme hardship to a qualifying relative include, but are not limited to, the following: the presence of lawful permanent residence or US citizen family ties to this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.

Discerning whether a US citizen child would face extreme hardship upon the removal of a non-citizen parent provides one basis by which to weigh the best interests of that child. In Matter of Cervantes-Gonzalez, the Board did not find extreme hardship, but that case did not involve a US citizen child. The only qualifying relative in that case was the alien's citizen spouse; they married during the course of removal proceedings, she was a native Mexican and could thus easily acclimate to life in Mexico, there were no financial ties to the United States, and the wife made no claim that she would suffer extreme hardship if her alien spouse was removed. In Matter of Kao & Lin, the Board did find that the removal of non-citizen parents would result in extreme hardship to at least one of their US citizen children. The husband and wife applicants in that case were Taiwanese, had lived in the United States for 19 and 17 years, respectively, and had five US citizen children who were not fluent in Chinese. The Board found nothing in the record to indicate that [the children's] language capabilities . . . [were] sufficient for an adequate transition to daily life in Taiwan. Moreover, the Board emphasized that the children ha[d] lived their entire lives in the United States and [were] completely integrated into their American lifestyles. Their needs for housing, food, clothing, education, and community support ha[d] been adequately met. As a result, the Board was satisfied that to uproot the oldest daughter . . . at this stage in her education and social development and to require her to survive in a Chinese-only environment would [have been] a significant disruption that would constitute extreme hardship.

To establish eligibility for a waiver of inadmissibility or deportability, the alien must demonstrate not only statutory eligibility, including extreme hardship to a qualifying relative, but also that the waiver is warranted in the exercise of discretion. Thus, even if statutory criteria are met, the Board may deny the alien's waiver application. In determining whether a waiver is justified, the adjudicator considers the adverse and positive factors in the specific case, thus providing a second opportunity to weigh the best interests of citizen children. Adverse factors include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record and, if so, its nature, currency and seriousness, and the presence of other evidence indicative of an alien's bad character or undesirability as a permanent resident of this country. Favorable considerations include:

family ties in the United States, residence of long duration in this country (particularly where the alien began his residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country's Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value and service to the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien's good character.

In weighing these adverse and positive factors, the adjudicator must take into account the underlying significance of these factors :

[I] f the alien has relatives in the United States, the quality of their relationship must be considered in determining the weight to be awarded this equity. Further, the equity of a marriage and the weight given to any hardship to the spouse is diminished if the parties married after the commencement of deportation proceedings, with knowledge that the alien might be deported.

In Matter of Mendez-Moralez, the Board upheld the denial of a waiver of inadmissibility under INA section 212(h)(1)(B) despite the fact that Mendez-Moralez had a citizen wife, three citizen children, two lawful permanent resident brothers, lawful permanent resident parents, and supported his family financially, because it found that adverse factors--the seriousness of his conviction for sexual assault of a minor and his lack of rehabilitation-- outweighed these equities.

Thus, although the Justice Department's determination of removability of a non-citizen parent will not make reference to any US citizen children that the alien parent may have, the existence of such children may influence the Department's ultimate inadmissibility or deportation determination. In making that decision, the INA permits the adjudicator to assess and weigh the best interests of the citizen child at two points, first at the threshold level of determining statutory eligibility, and second if and when the adjudicator exercises his or her discretion in granting the alien parent a waiver.

In addition to waivers of inadmissibility or deportability, the INA also provides various forms of relief, some of which are conditioned on a non-citizen possessing a qualifying relationship with a US citizen. This article focuses on two forms of relief: (i) status adjustment and (ii) cancellation of deportation proceedings for certain non-lawful permanent residents.

An alien non-lawful permanent resident in removal proceedings may seek cancellation of removal proceedings. To establish his eligibility for such relief, he must demonstrate that he has remained in the United States for a continuous period of ten years preceding his application, has good moral character, has not been convicted of certain disqualifying offenses, and that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States [.] Even if the applicant meets the statutory eligibility criteria, he must still establish that cancellation of removal should be granted in the exercise of discretion. As with the various waivers discussed above, the focus will often be on if the alien can establish exceptional and extremely unusual hardship to a qualifying relative.

The Board has held that the exceptional and extremely unusual hardship standard is much higher than the extreme hardship threshold required for INA section 212 inadmissibility waivers. The heightened requirement reflects Congress's intent to limit cancellations of removal proceedings for non-permanent residents to truly exceptional cases where the applicant can demonstrate hardship substantially beyond the ordinary hardship that would be expected when a close family member leaves this country. Nonetheless, the factors the agency considers in determining whether removal would result in exceptional and extremely unusual hardship are identical to those utilized in finding extreme hardship: the adjudicator simply weighs the evidence differently in light of the higher burden espoused by the alien seeking relief.

As with the extreme hardship determination, the adjudicator will not consider hardship factors relating to the applicant himself unless such factors also impact or affect the potential hardship to a qualifying relative. In evaluating the import given to qualifying relatives, the adjudicator should consider the ages, health, and circumstances of those relatives. For example, the Board in Matter of Monreal-Aguinaga opined an applicant who has elderly parents in this country who are solely dependent upon him for support might well have a strong case. Another strong applicant might have a qualifying child with very serious health issues, or compelling special needs in school. Economic issues may also be relevant: A lower standard of living or adverse conditions in the country of return are factors to consider only insofar as they may affect a qualifying relative, but generally will be insufficient in themselves to support a finding of exceptional and extremely unusual hardship.

The Board's reasoning in its decisions illustrates how high a standard exceptional and extremely unusual hardship is in practice. In Matter of Monreal-Aguinaga, the Board found no exceptional and extremely unusual hardship in removing a non-citizen father with three US citizen children, one of whom had already returned to Mexico with the applicant's non-citizen spouse. The Board found the case sympathetic, noting potential hardships to the school-aged children as well as less opportunities in Mexico for the family. Nonetheless, it pointed to mitigating factors that prevented a determination of exceptional and extremely unusual hardship. The Board reasoned that if the applicant was removed and the remaining two US citizen children followed, the nuclear family could be reunited, the applicant could work and support the family in Mexico, the children could understand and communicate in Spanish, and the applicant's US resident parents could survive financially without his assistance.

Similarly, the Board found no exceptional and extremely unusual hardship in the case of Matter of Andazola-Rivas. There, the applicant was a single mother of two school-aged US citizen children, whose entire family lived within the United States. Despite the possibility of separating the alien parent from her family if the Board denied her waiver to halt removal proceedings, it found that the facts, including the health of the children, the possession of significant financial assets, and the diminished educational and economic opportunities available in Mexico were insufficient to demonstrate exceptional and extremely unusual hardship.

The Board did, however, find exceptional and extremely unusual hardship in the case of Matter of Recinas. Recinas was a single mother with six children, four of whom were US citizens. Her four citizen children had never been to Mexico and did not speak, write, or understand Spanish well. The rest of her family, including two lawful resident parents and five lawful resident siblings, also lived in the United States, and Recinas also operated her own business in the United States. Recinas had no other means to lawfully immigrate to the United States in the near future, and, with no family in Mexico, the children would be entirely dependent on her for financial and emotional support. The Board concluded that these factors combined to render the hardship in this case well beyond that which is normally experienced in most cases of removal. In so holding, however, the Board did hold that Recinas' case present[ed] a close question and that it consider[ed] this case to be on the outer limit of the narrow spectrum of cases in which the exceptional and extremely unusual hardship standard will be met. Thus, in the absence of facts as sympathetic and compelling as those in Matter of Recinas, the Board is unlikely to grant a waiver to cancel deportation proceedings.

Adjustment of status can also provide non-citizens with effective relief from removal. To adjust status, a US citizen or lawful permanent resident files a visa petition for an alien relative. So long as the petitioner has a qualifying relationship with the alien-beneficiary, the granting of this petition could then lead to the adjustment of status of that alien to a lawful permanent resident. Visas for qualifying alien relatives are, on the whole, allocated based on a hierarchy of preference categories, which establish when a visa will be available to the alien-beneficiary. The INA provides, however, that visas are immediately available to aliens whose petitions are filed by US citizens, as long as the alien-beneficiary has an immediate-relative relationship with the petitioner. This category, which is not subject to the direct numerical limitations on immigrant visas, encompasses the children, spouse, and parents of a US citizen. Accordingly, a non-citizen parent could adjust status based on a petition filed by a US citizen child. However, if a parent is the beneficiary of the petition, the petitioner must be at least 21 years of age--that is, a child cannot petition for his parent(s) until he has attained that age. Thus, although adjustment may provide an avenue by which a non-citizen parent could obtain lawful status in the United States, a potential beneficiary may have to wait for as long as 21 years before his or her child could file a petition, from the birth of the child to his obtaining the age of majority.

To conclude, the INA does provide avenues for a non-citizen to obtain relief from removal by way of parentage of a US citizen child. However, relief can be difficult to obtain, even when the case involves a parent-child relationship. Cancellation of removal involves onerous demonstrations of hardship to the US citizen child, and petitions by the child for the parent's adjustment of status often involve prolonged delay. In short, contrary to the shouts of anchor-baby opponents, who seem to believe the mere fact of having a citizen child will insulate the non-citizen parent from removal, it can hardly be said that the INA will provide ready relief to non-citizen parents of US citizen children.

Furthermore, non-citizen parents have scant opportunity to appeal adverse outcomes. The administrative judgments of the Board and immigration judge are likely to be the last word on the matter, as the INA curtails the courts of appeals' jurisdiction to review discretionary determinations. The courts of appeals retain jurisdiction to review colorable legal and constitutional challenges, but this is unlikely to provide a basis for review in most cases, as the substance of the challenge will likely revolve around the agency's weighing of the evidence--an archetypal discretionary determination.

. Adjunct Professor, Georgetown University Law Center; Attorney, Office of Immigration Litigation, United States Department of Justice. The views and opinions reflected in this article do not represent those of the federal government or Department of Justice.