Extreme hardship. It’s what a common deportation waiver is supposed to prevent, but which it instead foists upon families with mixed immigration status, according to a paper published in the Southern University Law Review Journal.
Gina L. Signorelli, a licensed clinical social worker who conducts psychosocial evaluations of immigrant relatives, argues that the lack of definition of the term “extreme hardship” is causing unnecessary delays, inconsistent results, or family disruption pertaining to approval or denial of waivers.
As a result, of the “stricter enforcement” of existing rules governing I-601 waivers under current administration policy, “United States citizens are suffering psychologically,” Signorelli, a JD candidate at the Southern University Law Center, wrote in her paper.
“Children and families struggle with the process and debilitating effects of denials, including family separation.
“Depression, anxiety, and post-traumatic stress levels are at an all-time high for immigrant-origin families.”
Spoiler alert: fixing the mess will require action from the usual suspects currently stalling comprehensive national immigration reform—the ever-reluctant U.S. Congress and the increasingly combative Department of Homeland Security.
It is no secret that gaining U.S. citizenship is a grueling, costly, and largely individual process, even under the best of circumstances.
Further muddling this process, the U.S. immigration code is littered with fine-print restrictions that have left many of the roughly 11 million undocumented people living in the U.S. marooned without prospects for citizenship and vulnerable to deportation.
These long-winded restrictions can range from living undocumented in the U.S. for more than a year after entering without permission, to contracting a serious illness, to having a criminal record or appearing to have a connection to ‘terror groups.’
That’s to say that there is no shortage of reasons someone might become “inadmissible,” whether benign and inadvertent or deliberate and extreme.
Many of these people, labeled “ineligible” for green cards on technical grounds, are immediate family members to citizens or permanent residents. In addition to deportation, the fear of family disintegration looms constantly overhead for these mixed-status families.
The I-601 waiver is designed to help families encountering this dilemma by allowing otherwise inadmissible family members the chance to apply for legal status, based on the deep trauma and hardship that their deportation would cause their (U.S. citizen) loved ones.
The catch is that these families need to prove that the deportation of the family member would cause “extreme hardship,” a vague term which the federal Ninth Circuit, Perez v INS has defined as “unusual or beyond that which would normally be expected” upon deportation.
The highly subjective definition of ‘extreme hardship’ can quickly get slippery. An example from Signorelli’s paper cleanly illustrates the point.
In a 1986 case brought before the Fifth Circuit of the U.S. Court of Appeals, Hernandez-Cordero vs U.S. Immigration and Naturalization Service, parents appealed an immigration court’s rejection of their I-601 waiver on the grounds that their deportation to Mexico would force them to sell their home at a loss and relocate to Mexico, uprooting their U.S. citizen children from their school and social environments.
A Latin American economist, a licensed psychologist, and six teachers submitted affidavits in support of their appeal, but to no avail. The Bureau of Immigrant Affairs (BIA) decided they had not proved that their deportation would be an ‘extreme’ hardship beyond that of other deportations.
Signorelli explained that the dissenting justices in the case had argued that under the majority’s interpretation, “anything short of death would not be viewed as extreme hardship.”
Yet the select who survive the arbitrary process and receive the waiver seldom emerge unscathed. Often, they end up laden with crushing financial burdens and irreversible traumas from up to a decade waiting for the immigration kingmakers to determine their fate.
While research demonstrates that immigrants, particularly those living in mixed-status or undocumented households, experience high levels of depression, anxiety, and PTSD, Signorelli also argues that the I-601 waiver is tied to additional mental health issues for immediate relatives.
Those caught in the crosshairs of a loved one’s I-601 application frequently seek specific mental health services directly related to the “psychological, emotional, and economic distress associated with the practicalities, ambiguity, and uncertainty” of the process, according to sources on file with the author.
Thus, Signorelli argues that the I-601 has not only become a bank-breaking bureaucratic slow-walk; it has also become a source for the very types of family traumas it was originally conceived to prevent by providing relief from deportation to mixed-status families.
And under the hardline pressures of the Trump administration to restrict immigration through legal avenues, fewer applicants are getting through the process, Signorelli claimed.
Although congressional inaction has impeded the Trump administration’s ability to substantially reform immigration, Trump’s [Executive Orders] heightened immigration requirements by expanding vetting procedures under the guise of public safety and increasing application requirements for legal immigration to slow admissions; all of which work toward decreasing immigrant admissions and expanding deportation.
Signorelli argued that Congress needs to more clearly define waiver admissions criteria, give officers of U.S. Citizenship & Immigration Services less discretion over who gets the waivers, and prioritize families in U.S. immigration law by prioritizing and creating safeguards for immigrant families’ physical, mental, and emotional needs.
These positive changes will strengthen our nation, improve the emotional state of the people, promote family unity, prevent discrimination, and enforce immigration laws as Congress originally intended.
The full article is available online.
Roman Gressier is a TCR contributor and news intern.