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Scope of Judicial Review: Extreme Hardship and the Whipsaw of Illegal Aliens
Administrative Law Review (1984)
  • Stephen M. Feldman, University of Wyoming
wo Supreme Court and Ninth Circuit decisions drastically changed the scope of judicial review for administrative denials of suspension of deportation. Together, the two decisions whipsaw illegal aliens who seek to prove "extreme hardship," a prerequisite to the Attorney General's approval of an application for suspension of deportation. In Immigration and Naturalization Service v. Wang, decided in 1981, the Supreme Court reversed the Ninth Circuit's decision that the Wangs had established a prima facie case of extreme hardship and held that the Attorney General, not the courts, should define extreme hardship. In Ramirez-Gonzalez v. Immigration and Naturalization Service, decided in 1983, the Ninth Circuit found that the Board of Immigration Appeals (BIA), acting for the Attorney General, had erred by failing to consider a factor relevant to extreme hardship, but held that the error was harmless. Thus, the cases create a whipsaw: under Wang, if the Attorney General has considered all factors relevant to extreme hardship, then the courts will not substitute judgment on review, but under Ramirez-Gonzalez, if the Attorney General errs by not considering all relevant factors, then the courts will substitute judgment to find harmless error. Part I of this article traces the statutory development of the extreme hardship requirement and then discusses the possible scopes of review under the present ambiguous statute. Part II examines the Supreme Court and Ninth Circuit cases that have delineated the scope of review. Finally, part III explores the implications of those cases--how they work together to whipsaw aliens seeking to prove extreme hardship and suggests how that problem might be eliminated.
  • administrative law,
  • illegal aliens,
  • extreme hardship,
  • deportation
Publication Date
Citation Information
Stephen M. Feldman. "Scope of Judicial Review: Extreme Hardship and the Whipsaw of Illegal Aliens" Administrative Law Review Vol. 36 (1984)
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