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Carl Shusterman's Immigration Update

Federal Courts May Review I-751 Hardship Waiver Denials

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In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) which severely restricts the ability of Federal Courts to review decisions of the Board of Immigration Appeals (BIA), especially those which are "discretionary" determinations. Many of these discretionary decisions involve whether "extreme hardship" or "extraordinary and extremely unusual hardship" exists in a specific case.

We, therefore, are interested in Federal Court decisions where it is determined that the Courts have the ability to review a ruling by the BIA, particularly where it is determined that the judiciary retains jurisdiction to review administrative decisions regarding whether the required degree of "hardship" exists.

In a recent decision by the U.S. Court of Appeals for the Ninth Circuit, Singh v. Holder, No. 07-73792 (January 8, 2010), the Court held that it has jurisdiction to review a BIA determination as to whether there was "extreme hardship" in the context of an I-751 waiver petition. Although the Court ultimately dismissed the petition for review, the holding is significant.

Here are the facts:

Mr. Singh became a conditional permanent resident through marriage to a U.S. citizen. Nearly two years later, the couple submitted a joint petition to remove the two-year condition. However, at the interview, the citizen wife alleged that the marriage was fraudulent and withdrew from the joint petition.

Mr. Singh was placed in removal proceedings where he submitted an I-751 waiver petition based on "extreme hardship". Although the Immigration Judge found Mr. Singh to be credible, he denied his I-751 after finding that he did not meet the "extreme hardship" standard. The BIA affirmed.

The Appeals Court discussed whether they had jurisdiction to review the BIA's finding that the "extreme hardship" standard had not been met. The Court examined the text of Section 216(c)(4), INA, the I-751 hardship waiver provision. First, the statute provides that the BIA must determine whether the petitioner meets one of three alternative criteria required to establish that "extreme hardship" exists. Second, if the petitioner satisfies any of these criteria, the BIA "may" grant the waiver.

The Court held the question of whether the petitioner has demonstrated "extreme hardship" is a legal standard, and therefore, is reviewable by the Court. Once this standard is met, however, the question as to whether to grant the waiver is purely discretionary, and is not reviewable in Federal Court.

The Court then proceeded to examine whether the BIA failed to find extreme hardship because as the petitioner contended, the Board: (1) did not consider the hardship to other family members; (2) did not define the period of time for which hardship was relevant; and/or (3) failed to consider the hardship factors in the aggregate. The Court found no legal errors in the BIA's decision.

However, the holding in Singh v. Holder is important because it states that under the pertinent statute, the Federal Courts have jurisdiction to review extreme hardship determinations in the context of I-751 waiver applications. It should be noted, however, that the Court did not extend this review authority to hardship determinations in the context of applications for suspension of deportation or for cancellation of removal for nonpermanent residents.

Still, immigrants and their attorneys should be encouraged that the Court recognized that despite the 1996 IIRAIRA law, some hardship determinations are reviewable in the Federal Courts.

We link to Singh v. Holder from our "Green Cards Through Marriage" page at




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Updated 12-02-2013 at 04:46 PM by CShusterman

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