Careless judicial interpretation often leads to unjustified consequences.

For immigrants, it can mean deportation.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) transformed immigration law.  One change affected the relief available to undocumented immigrants when the government seeks their removal from the United States.

Before the revision, immigrants could ask for suspension of deportation.  This required them to prove extreme hardship.  After the change, they could seek cancellation of removal, which demands a showing of exceptional and extremely unusual hardship. If immigrants fail to meet the relevant standard, they are sent back to their country of origin.

The Board of Immigration Appeals issued its understanding of the differences between the two hardship standards in Matter of Monreal.  First, the Board explained that “under the plain meaning of the words of the two hardship statutes the standard for cancellation of removal was higher than the standard for suspension of deportation.”  Second, the Board noted that even though the hardship standard under cancellation of removal was heightened, it was clearly set at a level less than “unconscionable.”

In my view as an immigration deportation and removal defense lawyer, the BIA was wrong on the first point.  And the Board’s mistake on the first part of their analysis negated their second point.

The plain meaning of the words of the two statutes does not mandate a more restrictive evaluation of hardship.  Indeed, the only hardship more severe than an extreme hardship is an unconscionable hardship.

The Board’s careless interpretation overlooked a lesson I was taught in elementary school: the difference between adjectives and adverbs.

To understand hardship in the immigration context, four adjectives are important: exceptional, unusual, extreme, and unconscionable. According to well-respected dictionaries like Webster’s, Oxford, and Cambridge, a comparative list of commonly accepted meanings follow:

  • Exceptional – unusual, extraordinary, irregular, peculiar, rare, strange, unnatural, anomalous, abnormal
  • Unusual – uncommon, extraordinary, exceptional, rare, strange, remarkable, singular, curious, queer, odd
  • Extreme – utmost, greatest, rarest, highest, outermost, endmost, uttermost, farthest, furthest, remotest, ultimate
  • Unconscionable – immoral, barbarous, preposterous, uncivilized, unethical, unjust, wicked conscienceless, unscrupulous

Based on this review, a spectrum of hardship emerges.

Three significant points can be gleaned from this spectrum:

  1. The terms “exceptional” and “unusual” are equivalent. Both adjectives connote a situation which is extraordinary or rare. Both describe the same degree of severity.  As synonyms, their meanings overlap each other 100%.
  2. The terms “exceptional” and “unusual” apply to a hardship which is less harsh than an “extreme” hardship. The terms “exceptional” and “unusual” address a hardship which is extraordinary or rare. “Extreme” pertains to a situation which is the ultimate, rarest, or remotest.
  3. The circumstances described by the term “extremely unusual” are less severe than those described by the term “extreme.” An extremely unusual hardship is more severe than an unusual hardship. But it is less severe than an extreme hardship. In the phrase “extremely unusual,” the word extremely is an adverb. The adjective is still unusual. By definition, there is a qualitative difference between unusual hardship (even if “extremely unusual”) and extreme hardship (even if “ordinarily extreme”).

Based on the words used by Congress, the BIA flunked an elementary school grammar test.

The effect of their error is not simply grammatical.  The BIA’s blunder created a false barrier to relief from deportation which many worthy immigrants cannot surmount.

Immigration judges, following the BIA’s mistaken precedent, order the removal of immigrants who can show extreme hardship – because extreme hardship is not deemed severe enough under the new standard.

Due to the BIA’s careless interpretation, what immigration judges want is unconscionable.

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