Hardship Issues for the GLBT Immigrant Spouse in Removal Proceedings

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.