The letter recommends that individuals subject to section 236(c) be permitted to be released on restrictive forms of custody short of detention. Furthermore, the letter recommends that 236(c) be limited to apply only to those apprehended by the ICE at the time of release from criminal custody on the basis of a serious criminal conviction.SIGNATORIESThe letter is signed by ten former IJs and three former members of the BIA.The former IJs who signed the letter are the Honorable: Sarah Burr, Bruse J. Einhorn, Christopher Grant, Gilbert T. “Thad” Gembaz, John F. Gossart, William Joyce, Eliza Klein, Pedro Miranda, and Bruce Solow.The former members of the Board who signed the letter are the Hhonorable: Lory Rosenberg, Paul Wickham Schmidt, and Gustavo Villageliu.We discuss one of Judge Rosenberg's most notable pieces of writing on site: her dissenting opinion in the Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999) [PDF version] [see article].CONCLUSIONThe letter highlights many crucial concerns regarding the current state of the immigration detention system, and how those issues may be exacerbated by an influx of new detainees.

The factors causing the hardship may be particular to the abuse.Under INA 212(e), a certain J1 exchange visitors may obtain a waiver of the two-year foreign residency requirement by establishing that applicant’s U.S. citizen or LPR spouse or child would incur “exceptional hardship.”Under INA 101(a)(15)(T)(i)(IV), an applicant for T visa status as a victim of trafficking must demonstrate that he or she would suffer extreme hardship involving unusual and severe harm upon removal.Extreme Hardship FactorsThe most important administrative precedent for immigration extreme hardship is the Board of Immigration Appeals’ (BIA) decision in the Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999). The decision addressed extreme hardship factors in the section 212(i) context, but its principles are generally applicable to all extreme hardship determinations.

This is because Congress often writes laws in broad strokes sufficient to formulate the policy, and leaves the power to fill in the details to the executive branch. In the case of “extreme hardship,” Congress did not define what exactly constitutes “extreme hardship,” thus leaving the details to immigration administrators and federal courts.The leading administrative case on extreme hardship is the Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999). Cervantes arose in the context of the INA §212(i) waiver adjudication.