Day 231: “Extreme Hardship” and Family Separation

Photo by Ante Hamersmit on Unsplash

In the Immigration Clinic, we’re preparing an application for a “Provisional Unlawful Presence Waiver” for one of our clients. The client married a U.S. citizen, which technically makes the client eligible for a green card. But because the client entered the United States without inspection, they can’t “adjust status” to permanent residency within the United States; they’ll have to travel to another country to apply for their green card, and then seek a lawful “admission” upon their return.

However, here’s the Catch-22: because the client was unlawfully present in the United States before traveling, they would — without the waiver — be denied permission to re-enter when they seek to return from the green card interview.

U.S. Citizenship and Immigration Service will waive the unlawful presence bar and let the client back in the country if the client can show that a U.S. citizen “qualifying relative” would suffer “extreme hardship” if the client were not admitted.

To show “extreme hardship,” the client has to show that the qualifying relative — here, the U.S. citizen spouse — would suffer in ways that go beyond the usual hardships that accompany separation. Although our client and their spouse have a young child together, the “qualifying relative” for this type of application cannot be a child, only a spouse or a parent. A child losing their parent isn’t grounds for an “extreme hardship” waiver.

Family Separation

In class recently, we had a debate about this provision. Several people thought the standard was absurd. One person — a parent — questioned what could possibly be worse than being separated from one’s child. In their view, if exclusion or removal of the parent would entail separation from a U.S. citizen child, that should trigger an automatic waiver of unlawful presence.

Of course, the reason this humane policy doesn’t exist is political — some argue that it would encourage people entering unlawfully to have “anchor babies” just to allow them to stay. (The law does treat U.S. citizen children as qualifying relatives for other applicatons, such as an application for Cancellation of Removal, where the noncitizen has lived in the United States for at least ten years and their removal would cause “exceptional and extremely unusual” hardship to the qualifying relative, a higher standard.)

Even if people did make reproductive decisions based on legal standards (a questionable proposition), should this matter in cases involving clear harm to children (and U.S. citizen children to boot, in this case)? The law recognizes other special protections for children — for example, unaccompanied child migrants may be eligible for Special Immigrant Juvenile Status, a path to a green card. In the recent Senate immigration bill, unaccompanied minors are carved out from the new expedited asylum screening process.

Policies like these may incentivize parents to send their children to the U.S. to support their families, an unintended consequence — but so far the law has chosen to give priority to protecting vulnerable children. Why should we do differently for U.S. citizen children who risk permanent separation from a noncitizen parent?