USCIS Draft Guidance on Adjudication of Extreme Hardship Waivers

USCIS Issues Draft Guidance on Adjudication of Extreme Hardship Waivers

Selected USCIS draft guidance concerning the adjudication of applications for those discretionary waivers of inadmissibility that require showings of “extreme hardship” to certain U.S. citizen or lawful permanent resident (LPR) family members of the applicant follows below.

Admissibility is generally a requirement for admission to the United States, adjustment of status, and other immigration benefits.  Several provisions of the Immigration and Nationality Act (INA), however, authorize discretionary waivers of particular inadmissibility grounds for those who demonstrate “extreme hardship” to specified U.S. citizen or LPR family members (referred to here as “qualifying relatives”).

Each of these provisions conditions a waiver on both a finding of extreme hardship to a qualifying relative and the more general favorable exercise of discretion.  All of these waiver applications are adjudicated by U.S. Citizenship and Immigration Services (and in some cases by the Department of Justice’s Executive Office for Immigration Review).

The various statutory provisions specify different sets of qualifying relatives and permit waivers of different inadmissibility grounds. They include:

  • INA 212(a)(9)(B)(v) – This provision can waive the three-year and ten-year inadmissibility bars for unlawful presence.  Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse or parent.
  • INA 212(h)(1)(B) – This provision can waive inadmissibility for crimes involving moral turpitude, multiple criminal convictions, prostitution and commercialized vice, and certain serious criminal offenses for which the foreign national received immunity from prosecution.  It can also waive inadmissibility for controlled substance convictions, but only when the conviction was for a single offense of simple possession of 30 grams or less of marijuana. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse, parent, son, or daughter.
  • INA 212(i)(1) – This provision can waive inadmissibility for certain types of immigration fraud. Eligible qualifying relatives include the applicant’s U.S. citizen or LPR spouse or parent.

Common Consequences of Inadmissibility

Common consequences of an applicant’s refusal of admission, in and of themselves, do not warrant a finding of extreme hardship. The BIA has held that these common consequences include, but are not limited to, the following:

  • Family separation;
  • Economic detriment;
  • Difficulties of readjusting to life in the new country;
  • The quality and availability of educational opportunities abroad;
  • Inferior quality of medical services and facilities; and
  • Ability to pursue a chosen employment abroad.

Even though these common consequences alone would be an insufficient basis for a finding of extreme hardship, they are still factors that must be considered when aggregating the total hardships to the qualifying relative.

When combined with other factors that might also have been insufficient when taken alone, even these common consequences might cause the sum of the hardships to reach the “extreme hardship” standard.

For example, if a qualifying relative is gravely ill, elderly, or incapable of caring for himself or herself, the combination of that hardship and the common consequences of a refusal of the applicant’s admission might well cause extreme emotional or financial hardship for the qualifying relative.

Examples of Factors that Might Support Finding of Extreme Hardship

FactorsConsiderations
Family Ties and ImpactPresence of qualifying relative’s ties to family members living
in the United States, including age, status, and length of
residence of any children
Responsibility for the care of any family members in the
United States, in particular children and elderly or disabled
adults
Presence or absence of qualifying relative’s ties outside of the
United States, including to family members living abroad and
how close the qualifying relative is to these family members
Nature of relationship between the applicant and the
qualifying relative, including any facts about the particular
relationship that would either aggravate or lessen the
hardship resulting from separation
Qualifying relative’s age
Length of qualifying relative’s residence in the United States
Length of qualifying relative’s prior residence in the country of relocation, if any
Military service of qualifying relative, where the stresses and
other demands of such service aggravate the hardship
ordinarily resulting from family separation
Impact on the cognitive, social, or emotional well-being of a
qualifying relative who is left to replace the applicant as
caregiver for someone else, or impact on the qualifying
relative (for example, child or parent) for whom such care is
required
Social and Cultural ImpactLoss of access to the U.S. courts and the criminal justice
system, including the loss of opportunity to request criminal
investigations or prosecutions, initiate family law proceedings,
or obtain court orders regarding protection, child support,
maintenance, child custody, or visitation
Fear of persecution
Existence of laws and social practices in home country that
punish the qualifying relative because he or she has been in
the United States or is perceived to have Western values
Access or lack of access to social institutions and structures
(official and unofficial) for support, guidance, or protection
Social ostracism or stigma based on characteristics such as
gender, gender identity, sexual orientation, religion, race,
national origin, ethnicity, citizenship, age, political opinion, or
disability
Qualifying relative’s community ties in the United States and
in the country of relocation
Extent to which the qualifying relative has assimilated to U.S.
culture, including language, skills, and acculturation
Difficulty and expense of travel/communication to maintain
ties between qualifying relative and applicant, if the qualifying
relative does not relocate
Qualifying relative’s present inability to communicate in the
language of the country of relocation, taking into account the
time and difficulty that learning that language would entail
Availability and quality of educational opportunities for
qualifying relative (and children, if any) in country of
relocation
Economic ImpactFinancial impact of applicant’s departure on the qualifying
relative(s), including the applicant’s or the qualifying relative’s
ability to obtain employment in the country to which the
applicant would be returned and how that would impact the
qualifying relative
Qualifying relative’s need to be educated in a foreign
language or culture
Economic and financial loss due to the sale of a home or
business
Economic and financial loss due to termination of a
professional practice
Decline in the standard of living, including high levels of
unemployment, underemployment, and lack of economic
opportunity in country of nationality
Ability to recoup losses
Cost of extraordinary needs such as special education or
training for children
Cost of care for family members, including children and
elderly, sick, or disabled parents
Health Conditions
& Care
Significant health conditions and impact on the qualifying
relative, particularly when tied to unavailability of suitable
medical care in the country or countries to which the
applicant might relocate
Health conditions of the applicant’s qualifying relative and the
availability and quality of any required medical treatment in
the country to which the applicant would be returned,
including length and cost of treatment
Psychological impact on the qualifying relative due to either
separation from the applicant or departure from the United
States, including separation from other family members living
in the United States
Psychological impact on the qualifying relative due to the
suffering of the applicant, taking into account the nature of
the relationship and any other relevant factors
Country ConditionsConditions in the country or countries to which the applicant
would relocate, including civil unrest or generalized levels of
violence, ability of country to address crime/high rates of
murder/other violent crime, environmental catastrophes like
flooding or earthquakes, and other socio-economic or political
conditions that jeopardize safe repatriation or lead to
reasonable fear of physical harm
Temporary Protected Status (TPS) designation
Danger Pay for U.S. citizens stationed in the country of
nationality
Withdrawal of Peace Corps from the country of nationality for
security reasons
DOS Travel Warnings issued for the country of nationality

Special Circumstances that Strongly Suggest Extreme Hardship

The preceding list identifies factors that bear generally on whether a refusal of admission would result in extreme hardship to one or more qualifying relatives.

USCIS has also determined that the circumstances below would often weigh heavily in favor of finding extreme hardship. These sorts of special circumstances are beyond the qualifying relative’s control and ordinarily cause suffering or harm greater than the common consequences of separation or relocation.

An applicant who is relying on one or more of these special circumstances must submit sufficient evidence that such circumstances exist. As always, even when these or other special circumstances are present, the ultimate determination of extreme hardship is based on the totality of the circumstances in the individual case.

It must be emphasized that the special circumstances listed below are singled out only because they are especially likely to result in findings of extreme hardship. Many other hardships will also be extreme, even if they are very different from, or less severe than, those listed below. Further, even the factors discussed are not exclusive; they are merely examples of factors that can support findings of extreme hardship, depending on the totality of the evidence in the particular case. Other factors not not discussed could support a finding of extreme hardship, under a totality of the circumstances.

Eligibility for an immigration benefit ordinarily must exist at the time of filing and at the time of adjudication. Given the underlying purpose of considering special circumstances, a special circumstance does not need to exist at the time of filing the waiver request. As long as the qualifying relative was related to the applicant at the time of filing, a special circumstance arising after the filing of the waiver request also would often weigh heavily in favor of finding extreme hardship.

1. Qualifying Relative Previously Granted Asylum or Refugee Status

If a qualifying relative was previously granted asylum or refugee status in the United States from the country of relocation and the qualifying relative’s status has not been revoked, those factors would often weigh heavily in favor of a finding that relocation would result in extreme hardship.

As the family member of a foreign national who has been granted asylum or refugee status, the applicant might also face dangers similar to those that gave rise to the qualifying relative’s grant of asylum or refugee status. In such a case, the qualifying relative could suffer psychological trauma in knowing the potential for harm if the applicant returns to the country of nationality, particularly if the qualifying relative fears returning to that country even to visit the applicant, and could thereby suffer extreme hardship.

2. Qualifying Relative or Related Family Member’s Disability

If the Social Security Administration or other qualified U.S. Government agency made a formal disability determination for the qualifying relative, the qualifying relative’s spouse, or a member of the qualifying relative’s household for whom the qualifying relative is legally responsible, that factor would often weigh heavily in favor of a finding that relocation would result in extreme hardship.

Absent a formal disability determination, an applicant may provide other evidence that a qualifying relative or related family member suffers from a medical or physical condition that makes either travel to, or residence in, the relocation country detrimental to the qualifying relative or family member’s health or safety.

In cases where the qualifying relative or related family member requires the applicant’s assistance for care because of the medical or physical condition, that factor would often weigh heavily in favor of a finding that separation would result in extreme hardship to the qualifying relative.

3. Qualifying Relative’s Active Duty Military Service

If the qualifying relative (who might be a spouse or other qualifying relative) is on active duty with any branch of the U.S. Armed Forces, relocation will generally be unrealistic, because the qualifying relative ordinarily will not be at liberty to relocate.

If the applicant and the qualifying relative have been living together – for example, on a military base that accommodates families or in a private facility off base – the removal of the applicant can therefore create separation. Under those circumstances, the qualifying relative might well suffer psychological and emotional harm associated with the separation.

The resulting impairment of his or her ability to serve the U.S. military could exacerbate that hardship. In addition, even if the qualifying relative’s military service already separates him or her from the applicant, the applicant’s removal overseas might magnify the stress of military service to a level that would constitute extreme hardship.

4. DOS Warnings Against Travel to or Residence in Certain Countries

DOS issues travel warnings to notify travelers of the risks of traveling to a foreign country. Reasons for issuing a travel warning include, but are not limited to, unstable government, civil war, ongoing intense crime or violence, or frequent terrorist attacks. Travel warnings remain in place until the situation changes. In some of these warnings, DOS advises of travel risks to a specific region or specific regions of a country.

In other travel warnings, DOS does more than merely notify travelers of the risks; it affirmatively recommends against travel or residence and makes its recommendation countrywide.

These travel warnings might contain language in which:

  • DOS urges avoiding all travel to the country because of safety and security concerns;
  • DOS warns against all but essential travel to the country;
  • DOS advises deferring all non-essential travel to the country; and/or
  • DOS advises U.S. citizens currently living in the country to depart.

Generally, the fact that a qualifying relative who is likely to relocate would face significantly increased danger in the country of relocation would often weigh heavily in favor of a finding of extreme hardship. If the country of relocation is currently subject to a DOS country-wide travel exists and, therefore, that relocation would result in extreme hardship.

If the travel warning covers only part of the country of relocation, but the officer finds that that part is one to which the qualifying relative plans to return despite the increased danger (for example, because of family relationships or employment opportunities), then that fact would similarly tend to weigh heavily in favor of finding that relocation would result in extreme hardship.

Alternatively, if it is more likely than not that the qualifying relative would relocate in a part of the country that is not subject to the travel warning (either because of the danger in the area covered by the travel warning or for any other reason), the officer should evaluate whether relocation in the chosen area would itself result in extreme hardship to that qualifying relative.

Conversely, if the applicant were to return to this particular country but the qualifying relative would be more likely than not to remain in the United States, the separation might well result in psychological trauma for the qualifying relative.

5. Substantial Displacement of Care of Applicant’s Children

USCIS recognizes the importance of family unity and the ability of parents and other caregivers to provide for the well-being of children. Moreover, depending on the particular facts, either the need to assume someone else’s care-giving duties or the continuation of one’s existing care-giving duties under new and difficult circumstances can be sufficiently burdensome to rise to the level of extreme hardship for the caregiver. The children do not need to be U.S. citizens or lawful permanent residents for that to be the case.

At least two different scenarios can occur.

In one scenario, the primary or sole breadwinner is refused admission, and the caregiver, who is a qualifying relative, remains behind to continue the caregiving. The fact that the breadwinner’s refusal of admission would cause economic loss to the caregiver is not by itself sufficient for extreme hardship. Economic loss is a common consequence of a refusal of admission.

But, depending on the facts of the particular case, economic loss can create other burdens that in turn are severe enough to amount to extreme hardship. For example, if the qualifying relative must now take on the combined burdens of breadwinner and ensuring continuing care of the children, and that dual responsibility would threaten the qualifying relative’s ability to meet his or her own basic subsistence needs or those of the person(s) for whom the care is being provided, that dual burden would tend to weigh heavily in favor of finding extreme hardship. In addition, depending on the particular circumstances, the qualifying relative may suffer significant emotional and psychological impacts from being the sole caregiver of the child(ren) that exceed the common consequences of being left as a sole parent.

If the refusal of admission would result in a substantial shift of care-giving responsibility from the applicant to a qualifying relative, and that shift would disrupt family, social, and cultural ties, or hinder the child(ren)’s psychological, cognitive, or emotional development, or otherwise frustrate or complicate the qualifying relative’s efforts to provide a healthy, stable, and caring environment for the child(ren), the additional psychological and economic stress for the qualifying relative could exceed the levels of hardship that ordinarily result from family separation – depending, again, on the totality of the evidence presented. If that is found to be the case, such a consequence would tend to weigh heavily in favor of a finding of extreme hardship to the qualifying relative, provided the applicant shows:

  • The existence of a bona fide parental or other care-giving relationship between the applicant and the child(ren);
  • The existence of a bona fide relationship between the qualifying relative and the child(ren); and
  • The qualifying relative would become the primary caretaker for the child(ren) or otherwise would take on significant parental or other care-giving responsibilities.

To prove a bona fide relationship to the child(ren), the applicant and qualifying relative should have emotional and/or financial ties or a genuine concern and interest for the child(ren)’s support, instruction, and general welfare. Evidence that can establish such a relationship includes:

  • Income tax returns;
  • Medical or insurance records;
  • School records;
  • Correspondence between the parties; or
  • Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the relationship.

To prove the qualifying relative either would become the primary caretaker for the child(ren) or relative needs to show an intent to assume those responsibilities. Evidence of such an intent could include:

  • Legal custody or guardianship of the child, such as a court order;
  • Other legal obligation to take over parental responsibilities;
  • Affidavit signed by qualifying relative to take over parental or other care-giving responsibilities; or
  • Affidavits of friends, neighbors, school officials, or other associates knowledgeable about the qualifying relative’s relationship with the children or intentions to assume parental or other care-giving responsibilities.would otherwise take on significant parental or other care-giving responsibilities, the qualifying relative’s relationship with the children or intentions to assume parental or other care-giving responsibilities.

Hypothetical Case Examples

Scenario #1: AB has lived continuously in the United States since entering without inspection 7 years ago. He and his U.S. citizen wife have been married for 4 years. If AB is refused admission, it is reasonably foreseeable that his wife would relocate with him. His wife is a sales clerk. A similar job in the country of relocation would pay far less. In addition, she does not speak the language of the relocation country, lacks experience in the country, and lacks the ties that would facilitate social and cultural integration and opportunities for employment. AB himself is an unskilled laborer who similarly would command a much lower salary in the country of relocation. The couple has no children.

Analysis: These facts alone generally would not favor a finding of extreme hardship. The hardships to the qualifying relative, even when aggregated, include only common consequences of relocation – economic loss and the social and cultural difficulties arising mainly from her inability to speak the language.

Scenario #2: The facts are the same as in Scenario # 1 except that now the couple has a 9-year old U.S. citizen daughter who would relocate with them if AB is refused admission. The child was born in the United States and has lived here her entire life. AB’s wife and daughter both have close relationships with AB’s wife’s U.S. citizen sister and brother-in-law, who are the child’s aunt and uncle, and this couple’s U.S. citizen children, who are the child’s cousins, as well as other members of the family. They all live in close proximity with one another, have close emotional bonds, and visit each other frequently, and the aunt and uncle help care for the child. Neither AB’s wife’s family nor (for this particular waiver) the child are qualifying relatives, but AB’s wife, who is a qualifying relative, would suffer significant emotional hardship from seeing the suffering of both her young child and her sister’s family (the child’s aunt, uncle and cousins), all separated from one another, as well as separated from other family members, and from losing the emotional bonds she and her child have with her sister’s family and other family members, and financial benefit she receives from the care that her sister and brother-in-law provide. In addition, the child (like her mother) does not speak the language of the relocation country.

Analysis: Depending on the totality of the evidence, these additional facts would generally support a finding of extreme hardship. The aggregate hardships to the U.S. citizen wife now include not only the economic losses, diminution of professional opportunities, and social, cultural, and linguistic difficulties – all common consequences – but also the extra emotional hardship she would experience as a result of seeing the suffering of her young child and also her sister and the sister’s family, and other members of the family because of the additional separation, the child’s inability to speak the language, as well as loss of emotional bonds between all these family members and financial benefit from their contribution to the care of the child. That is the case even though neither the child nor the aunt, uncle and cousins, or family members are qualifying relatives for the particular waiver, because their suffering will in turn cause significant emotional suffering for the U.S. citizen wife, who is a qualifying relative. Note that even though the common consequences are not alone sufficient to constitute extreme hardship, they must be added to the other hardships to determine whether the totality adds up to extreme hardship.

Scenario #3: Again the facts are the same as in Scenario # 1, except this time AB himself has LPR parents who live in the United States and who would suffer significant emotional hardship as a result of separation from their son and their daughter-in-law, with whom they have close family relationships.

Analysis: Depending on the totality of the evidence, the addition of these facts would generally favor a finding of extreme hardship. There are now 3 qualifying relatives – AB’s wife and both his parents. Although the aggregated hardships to AB’s wife alone (under Scenario # 1) include only the common consequences of a refusal of admission, further aggregating them with the emotional hardships suffered by the two LPR parents would generally tip the balance in favor of a finding of extreme hardship, depending, again, on the totality of the evidence.

Scenario #4: CD has lived continuously in the United States since entering without inspection 4 years ago. She has been married to her U.S. citizen husband for 2 years. It is reasonably foreseeable that he would choose to remain in the United States in the event she is refused admission. He has a moderate income, and she works as a housecleaner for low wages. Upon separating they would suffer substantial economic detriment; in addition to the loss of her income, he is committed to sending her remittances once she leaves, in whatever amounts he can afford. They have no children, and there are no extended family members in the United States.

Analysis: These facts alone generally would not favor a finding of extreme hardship. The qualifying relative, and the hardships to him, even when aggregated, include only common consequences – separation from his spouse and economic loss.

Scenario #5: EF and GH, a married couple from Taiwan, entered the United States on student visas 19 and 17 years ago, respectively. They overstayed their visas and have lived here ever since. They have five U.S. citizen children, all of whom were born in the United States and have lived here their entire lives. In the event that the parents are removed to Taiwan, it is reasonably foreseeable that the children would relocate with them. The children range in age from 6 to 15 and are fully integrated into the American lifestyle. None of the children are fluent in Chinese, and they would have to attend Chinese language public schools if they relocate because the family would not be able to afford private school. The 15-year-old child in particular would experience significant disruption to her education in light of her current age and her inability to speak or understand Chinese. The family of seven would be able to afford only a one-bedroom apartment upon relocation.

Analysis: This is the fact situation of Matter of Kao, 23 I. & N. Dec. 45 (BIA en banc 2001). The Board in that case, sitting en banc, held that these facts constitute extreme hardship for the 15-year-old daughter, who was one of the qualifying relatives. The Board therefore did not need to decide whether the other qualifying individuals would also suffer extreme hardship upon relocation. A key factor in that decision was the daughter’s age. In addition to the common consequences (integration into the American lifestyle, current inability to speak the language of the country of relocation, lesser educational opportunities, and economic loss), the Board found that because of her age and the time it would take to become fluent in the language of the country of relocation, the daughter’s education would be significantly disrupted and she would experience extreme hardship as a result.

Scenario #6: KL has lived continuously in the United States since entering without inspection six years ago. She married a U.S. citizen four years ago and seeks a waiver of the 10-year inadmissibility bar for unlawful presence based on extreme hardship to her husband. If she is refused, she would be removed to a country for which the U.S. State Department has issued travel warnings for specific regions, including the region where her family lives. It is reasonably foreseeable that her husband would relocate with her, and that because of the danger they would relocate in one of the areas for which no travel warnings have been issued. Unemployment throughout the country is extremely high, however, and without the family connections that they would forfeit by living outside the region of their family’s residence, the job prospects for both spouses are dim and their basic subsistence needs would be threatened.

Analysis: The fact that parts of the country of relocation are dangerous does not, by itself, constitute extreme hardship. Similarly, economic loss alone is not extreme hardship. But economic detriment that is severe enough to threaten a person’s basic subsistence can rise to the level of extreme hardship. Therefore, if the dangers in parts of the relocation country would induce the qualifying relative to relocate in other parts of the country where economic subsistence would be threatened (or if relocation in such parts is reasonably foreseeable for any other reason), the resulting economic distress would generally favor a finding of extreme hardship, depending on the totality of the evidence. Conversely, if it were reasonably foreseeable that because of the economic realities the qualifying relative, despite the danger, would relocate in a region for which travel warnings have been issued, then that danger would weigh heavily in favor of finding extreme hardship.

AAO Approves I-601 Waiver for INA 212( a)(9)(B) Unlawful Presence Bar

AAO Approves I-601 Waiver for INA 212( a)(9)(B) Unlawful Presence Bar

I-601 Waiver Legal News

The applicant is this case a native and citizen of Mexico who was found to be inadmissible under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (INA), 8 U.S.C. §1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year.

That section reads:

(B) Aliens Unlawfully Present

(i) In general. – Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year, voluntarily departed the United States . . . and again seeks admission within 3 years of the date of such alien’s departure or removal, or

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

U.S. Citizenship and Immigration Services (USCIS) records reflect that the applicant entered the United States without inspection on March 1, 2001 and voluntarily departed in December 2007 pursuant to an order of the immigration judge.

Accordingly, the applicant accrued unlawful presence for more than one year, and his voluntary departure triggered the ten-year bar, rendering him inadmissible under section 212(a)(9)(B)(i)(II) of the Act.

The applicant sought a waiver of inadmissibility pursuant to INA 212(a)(9)(B)(v) of the INA, 8 U. S.C. § 1182(a)(9)(B)(v).  

Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility as follows:

The Attorney General [now Secretary of Homeland Security] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established . . . that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

A waiver of inadmissibility under section 212(a)(9)(B)(v) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant.  Hardship to the applicant and his children can be considered only insofar as it results in hardship to a qualifying relative.  The applicant’s U.S. citizen spouse is the only qualifying relative in this case. If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case: Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964).  In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999).  The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id. at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme.  These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245,246-47 (Comm’r 1 984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-O, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, etcetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Twi Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).  For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d 1292, 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 247 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

This case illustrates the importance of providing as many details as possible regarding the hardships being suffered by the qualifying relative (or to be suffered in the case of relocation or separative), and more importantly, presenting objective proof of each hardship that is presented to the USCIS.  The types of evidence submitted as part of the record in this case include:

  • copies of invoices
  • photographs
  • financial records
  • affidavits
  • school records
  • birth certificates
  • marriage certificate
  • Western Union receipts
  • Kmart Store wire transfers
  • medical records
  • letters
  • criminal records
  • information about country conditions, education, and employment in Mexico.

The applicant’s wife asserts in the letter dated December 6, 2010 that she would have difficulty living in Mexico because of the living conditions in Michoacan.  She contends that there is no electricity, stove, refrigerator, bathroom, or running water in the house of her in-laws.  She states that water must be hand carried in buckets from a river that is an hour away on foot, and that the water must first be boiled before it is drinkable.  She declares that there is no bathroom to shower so buckets of water and cups are used to bathe, and that the outhouse toilet is away from the house, which worries her because of the wild coyotes, snakes, and scorpions and the far distance from the nearest hospital, which is one hour away.  She contends that her daughter’s education would suffer because she does not speak Spanish, and already struggles in school.  The applicant’s wife asserts that the schools in Michoacan have few teachers, are small, and lack running water and a bathroom.  She declares that Mexico is an unsafe place to live because of drug wars.

The applicant’s wife states in the affidavit dated 2011 that she lives with her parents and daughter, who was born ?2005, and prior to this living arrangement she and her daughter lived with the applicant, who financially supported them.  The applicant’s wife asserts that she now works full time while her mother, who has myeloproliferative disorder, takes care of her daughter.  She states that she went to Mexico to marry the applicant and spent three months with him Michoacan, and found it was not safe because of drug gangs.  She declares that while they were there, a child was kidnapped and killed because his parents could not afford the ransom.  She asserts that her husband cannot afford to move from his parent’s house and she sends him money.  The applicant’s wife declares that she does not speak much Spanish and does not think she would be able to find enough work to support their daughter.  She contends that her daughter needs the applicant and she cannot bear for her to grow up without him. The applicant’s wife asserts that she has been struggling with depression because of separation from her husband and saw a clinical psychologist.  She contends that she does not earn enough money to travel to Mexico and that her money is used to support her husband and his parents.

The applicant declares in the letters written i?n 2011 that he misses his wife and daughter, but they would not be able to survive where he lives.  He states that his town does not have a clinic, that he does not have transportation, and must travel far to get water that is not safe to drink.  He asserts that the school in his town is old, the children are poor and do not have food, and his parent’s house lacks heat and electricity.  The applicant contends that there are no jobs in which to earn money to survive and children have died from lack of medicine and medical care.  He declares that in Mexico his daughter would not have a school comparable to the one she attends in the United States and would not have sufficient food and clothing for there are days when he and his parents have no food to eat. The applicant asserts that gangs and crime make living in Mexico dangerous.

The asserted hardships of remaining in the United States without the applicant are emotional and financial in nature.  The claim of emotional hardship to the applicant’s wife is in agreement with letters from family members, the affidavit from the applicant’s wife, and the psychological evaluation dated 2010.  The psychologist states in the evaluation that the applicant’s wife has “symptoms of depression in the context of a 3-year separation from her husband” and diagnosed her with adjustment disorder with anxiety and depressed mood, and an eating disorder.

The applicant’s wife claims she is experiencing financial hardship without income from her husband.  Her claim is congruent with the letter from her employer dated 2010 for it reflects she works full time and earns $10.50 per hour, and the 16 wire transfers and money grams showing that since 2009 she has financially supported her husband.  The applicant’s wife’s anxiety about her husband’s safety in Michoacan is in agreement with the submitted travel warning stating that the State of Michoacan is home to the dangerous transnational criminal organization (TOC) “La Familia,” and that there have been attacks on government officials, law enforcement and military personnel, and other incidents of TCO-related violence throughout Michoacan.  U.S. Department of State, Bureau of Consular Affairs, Travel Warning- Mexico (April 22, 2011 ).  When the AAO combined the asserted emotional and financial hardship factors together, the AAO found that they demonstrate that the hardship to the applicant’s wife if she remains in the United States while her husband lives in Michoacan is extreme in that it is more than the typical or common hardships of inadmissibility.

The claimed hardships to the applicant’s wife in relocating to Mexico with her husband are having an impoverished living standard, distress about a substandard education for her daughter, not being able to find a job that will pay enough to survive, and fear they will become victims of drug-related violence.  The applicant’s assertion that he is not able to support himself in Michoacan is consistent with letters by his wife and the money grams and wire transfers. The applicant’s claim that it is dangerous in Michoacim is in accord with the earlier described travel warning about Mexico. The applicant’s wife’s statement that her daughter is struggling academically and her education will be jeopardized in Michoacan is in agreement with the parent notification stating that the applicant’s daughter was in the low strategic group, and the article from Cambio de Michoacan asserting that Michoacan has over a million people “above the age of 15 that have not finished their basic education, while in the illiteracy category you can find more than 300 thousand Michoacan inhabitants who are illiterate. ” When the asserted hardship factors are considered together, they establish that the hardship to the applicant’s wife in relocating to Mexico would be extreme and more than the common or typical result of inadmissibility.

In Matter of Mendez-Moralez, 2 1 I&N Dec. 296, 301 (BIA 1996), the Board stated that once eligibility for a waiver is established, it is one of the favorable factors to be considered in determining whether the Secretary should exercise discretion in favor of the waiver. Furthermore, the Board stated:

In evaluating whether section 212(h)(l )(B) relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien’s bad character or undesirability as a permanent resident of this country. The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where alien began residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends and responsible community representatives). Id. at 301.

The AAO must then, “[B]alance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. ” Id. at 300. (Citations omitted).

The factors adverse to the applicant in the instant case are his entry without inspection in 2001, unlawful presence, as well as any unauthorized employment.  The favorable factors are the extreme hardship to the applicant’s wife, the hardship to his young daughter, as well as their maintaining a close relationship during their years of separation. Letters from his wife’s family members attest that the applicant is a good husband and father, and provider for his family. The applicant has no criminal convictions.

When the AAO considered and balanced the favorable factors against the adverse factors, it found that the favorable factors outweigh the adverse factors and the grant of relief in the exercise of discretion is warranted in this case.

BIA Holds that Adjustment of Status Constitutes an Admission for Purposes of Applying for a Fraud Waiver Under INA Section 237(a)(1)(H)

BIA holds that adjustment of status constitutes an admission for purposes of determining an immigrant’s eligibility to apply for a waiver under INA Section 237(a)(1)(H)

I-601 Waiver Legal News

Matter of Agour, 26 I&N Dec. 566 (BIA 2015)

At issue in this case was whether a section 237(a)(1)(H) waiver for certain fraud or misrepresentation at the time of admission is available to aliens who commit fraud in the process of adjusting their status within the United States.

INA section 237(a)(1)(H) states:

(H) Waiver authorized for certain misrepresentations.

The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who–

(i) (I) is the spouse, parent, son or daughter of a citizen of the United States or an alien lawfully admitted to the United States for permanent residence; and

(II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

(ii) is a VAWA self-petitioner. A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.

INA § 237(a)(1)(H) thus provides a discretionary waiver in removal proceedings for certain misrepresentations and fraud at admission that would otherwise render deportable a lawful permanent resident (LPR) or a self-petitioner under the Violence Against Women Act (VAWA).

The applicant is a native and citizen of Morocco who was admitted to the United States on a nonimmigrant visitor visa in 1999.  In July 2001, she married a United States citizen who then filed a visa petition on her behalf.  In 2002, the applicant was granted conditional permanent resident status pursuant to section 216(a) of the Act, 8 U.S.C. § 1186a(a) (2000). The conditional basis of respondent’s permanent residence was removed in 2005 by the approval of a jointly filed Form I-751 (Petition to Remove Conditions on Residence).

The Department of Homeland Security (“DHS”) filed a notice to appear with the Immigration Court on September 5, 2008, charging the respondent with being removable under section 237(a)(1)(A) of the Act, as an alien who is inadmissible based on fraud or misrepresentation under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2006).

This charge was based on allegations that the respondent procured her adjustment of status by fraud or by willfully misrepresenting a material fact when she married for the sole purpose of obtaining permanent residence in the United States.

The applicant sought to waive fraud that occurred after her initial entry into the United States as a nonimmigrant. The question was whether an adjustment of status can be an admission for purposes of the section 237(a)(1)(H) waiver.

Prior BIA decisions discussing the section 237(a)(1)(H) waiver involved aliens admitted to the United States with immigrant visas who were then charged with being removable for fraud or misrepresentation in that initial entry. See, e.g., Matter of Federiso, 24 I&N Dec. 661 (BIA 2008), overruled on other grounds, Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010); Matter of Fu, 23 I&N Dec. 985 (BIA 2006).

The BIA in this case concluded that an alien’s adjustment of status within the United States constitutes an admission for purposes of the waiver at section 237(a)(1)(H) of the Act.

The Section 237(a)(1)(H) waiver is thus not limited only to those aliens who engage in fraud or misrepresentation at the time of entry into the United States with an immigrant visa.  An alien who commits fraud in the course of adjusting status in the United States may waive removal under section 237(a)(1)(A) of the Act as an alien who was inadmissible at the time of adjustment of status based on fraud or misrepresentation.

I-601 Extreme Hardship Waiver Approved by AAO for 10 Year Unlawful Presence Bar

I-601 Extreme Hardship Waiver Approved by AAO for 10 Year Unlawful Presence Bar

I-601 Waiver Legal News

The applicant is a native and citizen of India who was found to be inadmissible to the United States pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year and seeking readmission within 10 years of his last departure from the United States.

The applicant entered the United States with a valid C1/D nonimmigrant visa in October 2003 and remained beyond the period of authorized stay. The applicant did not depart the United States until March 2008. The applicant is therefore inadmissible under section 212(a)(9)(B)(i)(II) of the Act for having been unlawfully present in the United States for more than one year.

The applicant sought a waiver of inadmissibility in order to reside in the United States with his U.S. citizen spouse and child.  The field office director found that the applicant failed to establish that extreme hardship would be imposed on a qualifying relative and denied the Application for Waiver of Grounds of Inadmissibility (Form 1-601) accordingly.

On appeal, the AAO determined that the applicant had failed to establish that extreme hardship would be imposed on a qualifying relative.  The appeal was subsequently dismissed.

On motion, the prior decision of the AAO was withdrawn and the I-601 Extreme Hardship Waiver approved.

Section 212( a )(9) of the Act provides, in pertinent part:

(B) Aliens Unlawfully Present. –

(i) In general. – Any alien (other than an alien lawfully admitted for permanent residence) who-

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year … and again seeks admission within 3 years of the date of such alien’s departure or removal, or
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

(v) Waiver. – The Attorney General [now the Secretary of Homeland Security (Secretary)] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General (Secretary) that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien …

A waiver of inadmissibility under section 212(a)(9)(B)(v) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant. The applicant’s U.S. citizen spouse is the only qualifying relative in this case. Hardship to the applicant or their child, born in 2012, can be considered only insofar as it results in hardship to a qualifying relative. If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id.  The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id. at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, etcetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from  family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido v. I.N.S., 138 F.3d 1292, 1293 (9th Cir. 1998 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

This case is useful to examine in what the applicant initially did WRONG when preparing their I-601 waiver application:

  • The I-601 waiver and supporting documentation submitted failed to specify the applicant’s spouse’s medical condition, the short and long-term treatment plan, the severity of the situation and what hardships the applicant’s spouse would experience were her husband be unable to assist her with the care of their child.
  • As for the emotional hardship referenced, the I-601 waiver and supporting documentation failed to establish that said hardships were beyond the normal hardships associated when a spouse relocates abroad due to inadmissibility.
  • With respect to the applicant’s spouse’s assertions that she would experience financial hardship were her husband to relocate abroad, no documentation was provided establishing the applicant’s spouse’s expenses and assets and liabilities to establish that the applicant’s relocation would cause his wife financial hardship.
  • The waiver and supporting documentation failed to establish that the applicant’s spouse would be unable to properly care for herself and her child while continuing her work as a physician.
  • Alternatively, it was not established that the applicant would be unable to obtain gainful employment abroad that would permit him to assist his wife financially should the need arise.
  • Finally, the applicant’s spouse had a support network in the United States, including her parents and sibling, and it was not established that the applicant’s spouse’s relatives would be unable to provide needed assistance to the applicant’s spouse.

On motion, counsel effectively addressed the issues raised by the AAO:

  • In a declaration the applicant’s spouse details that she is going through turmoil and anguish knowing that she and her child may be separated from the applicant for a ten-year period.
  • She explains that as a physician, her career will be in jeopardy if she shows any evidence of mental or physical anguish.
  • She contends that at times she has been so distraught at the idea of her husband relocating abroad that she has had to fight back tears while at work.
  • The applicant’s spouse further asserts that she has no support to help take care of her daughter as her parents are old and suffer from many ailments and the rest of her family does not live close by.
  • Moreover, the applicant’s spouse maintains that she and the applicant work part-time to ensure that one of them is with their daughter as much as possible and a change in that arrangement would cause her and her child hardship.
  • In support, counsel re-submitted an evaluation from a doctor that states that the applicant’s spouse’s anxiety and depression are a direct result of the circumstances surrounding her husband’s case.
  • The doctor concludes that were the applicant to re-locate abroad while his spouse remains in the United States, the applicant’s spouse will slip into a protracted depression.
  • The applicant’s spouse’s pastors have also provided letters outlining the hardships the applicant’s spouse and child would face were the applicant to re-locate abroad, including emotional turmoil and day to day hardships.
  • Moreover, numerous letters have been provided from the applicant’s friends outlining the hardships the applicant’s family will face without the applicant’s daily presence.
  • Finally, counsel submitted financial documentation establishing the applicant’s and his spouse’s income and expenses and noting that due to business losses, the applicant’s spouse may not be able to cover all the family expenses without her husband’s financial support.

All this thus established on motion that the applicant’s spouse would experience extreme hardship were she to remain in the United States while her husband relocates abroad as a result of his inadmissibility.

However, the grant or denial of the waiver does not turn only on the issue of the meaning of “extreme hardship.” It also hinges on the discretion of the Secretary and pursuant to such terms, conditions and procedures as she may by regulations prescribe.  In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).

In evaluating whether relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien’s bad character or undesirability as a permanent resident of this country.

The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where alien began residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends and responsible community representatives). See Matter of Mendez-Moralez,”-21 i&N bee. 296, 301 (BIA 1996).

The AAO must then balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country.” Id. at 300. (Citations omitted).

In this case, the favorable factors are:

  • the extreme hardship the applicant’s U.S. citizen spouse and child would face if the applicant were to relocate to India, regardless of whether they accompanied the applicant or stayed in the United States;
  • community ties;
  • support letters from the church and friends;
  • the payment of taxes;
  • the apparent lack of a criminal record;
  • financial contributions to the church;
  • and the applipant’ s obtainment of an F -1 Visa and lawful entry after having accrued unlawful presence in the United States.

The unfavorable factors in this matter are the applicant’s periods of unlawful presence in the United States.

Although the violations committed by the applicant were considered serious in nature, the AAO found that the applicant has established that the favorable factors in her application outweigh the unfavorable factors. Therefore, a favorable exercise of the Secretary’s discretion was considered warranted and the I-601 extreme hardship waiver approved.

I-601 Waiver Approved by AAO for Fraud/Misrepresentation and Crime Involving Moral Turpitude

I-601 Waiver Approved by AAO for Fraud/Misrepresentation and Crime Involving Moral Turpitude

I-601 Waiver Legal News

The applicant is a native and citizen of Pakistan who was found inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of a crime involving moral turpitude.  This was due to a conviction on October 6, 1995 for P.L. 215.15.01, or Intimidating a Victim or Witness in the Third Degree.

The applicant was also found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. §1182(a)(6)(C)(i), for having attempted to procure an immigration benefit in the United States by fraud or willful misrepresentation.  The applicant submitted false information on an Application for Asylum and Withholding of Removal (Form 1-589).

The applicant sought a waiver of inadmissibility under section 212(h) of the Act and section 212(i) of the Act in order to reside in the United States with his U.S. citizen spouse.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime . . . is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien was released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of the application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

The Board of Immigration Appeals (BIA) held in Matter of Perez-Contreras, 20 I&N Dec. 615, 617-18 (BIA 1992), that:

[M]oral turpitude is a nebulous concept, which refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.. ..In determining whether a crime involves moral turpitude, we consider whether the act is accompanied by a vicious motive or corrupt mind. Where knowing or intentional conduct is an element of an offense, we have found moral turpitude to be present. However, where the required mens rea may not be determined from the statute, moral turpitude does not inhere.

Section 212(h) of the Act provides, in pertinent part, that:

(h) Waiver of subsection (a)(2)(A)(i)(I), (II), (B), (D), and (E).-The Attorney General [now the Secretary of Homeland Security, “Secretary”] may, in [her] discretion, waive the application of subparagraphs (A)(i)(I) … of subsection (a)(2) if-

(B) in the case of,an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it established to the satisfaction of the [Secretary] that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.

(2) the [Secretary], in [her] discretion, and pursuant to such terms, conditions and procedures as [she] may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

Section 212(a)(6)(C) of the Act provides, in pertinent part:

(i) Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Section 212(i) of the Act provides that:

The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

A waiver of inadmissibility under section 212(i) of the Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifying relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant.  The applicant’s spouse is the only qualifying relative in this case.  If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id . at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of Ige, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882). The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.

The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

For example, though family separation has been found to be a common result of inadmissibility or removal, separation from family living in the United States can also be the most important single hardship factor in considering hardship in the aggregate. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)); but see Matter of Ngai, 19 I&N Dec. at 24 7 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

Therefore, the AAO considers the totality of the circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative.

The favorable factors that contributed to approval of this I-601 “extreme hardship” waiver include the following:

  • The applicant’s wife has medical conditions including depression, recurring pain that exacerbates her depression, and anxiety.  She is monitored biweekly to ensure that her condition does not become life-threatening.
  • Should the wife’s condition become unbearable she will undergo a hysterectomy.
  • The wife’s medical conditions are complicated by her trying to become pregnant.  She is undergoing fertility treatment, and the applicant’s presence is necessary for continued support.
  • Due to health problems the applicant’s wife misses work at times.  She depends on the applicant’s income in addition to her own.
  • If the wife remains in the United States without the applicant she would be unable to support herself entirely and would be unable to visit the applicant in Pakistan.
  • Affidavit from the wife states that the applicant is her strength and support and that time spent with him is the happiest of her life.  She states that she is trying to have a child, but suffers severe menstrual pain and it is difficult to conceive.  She states that she was diagnosed with major depressive disorder, anxiety, and hypertension due mainly to the applicant’s immigration problem and her inability to get pregnant, and that she has regularly received psychiatric care for more than two years, taking limited medication because of trying to get pregnant.
  • A letter from the spouse’s medical doctor states that the wife has a history of adenomyosis, hypothyroidism and depression, with pain and vaginal bleeding that impact her everyday life by causing her to avoid activities.  The letter further states that there is a possibility of a hysterectomy, calling it a risky and invasive surgery, and that she is undergoing fertility treatment.
  • A 2011 psychological evaluation notes the wife’s medical history and states that being unable to conceive causes anxiety. The evaluation states that the spouse is diagnosed with major depressive disorder and it further states that the applicant’s wife could benefit with a closely monitored trial of antidepressants, but that she needs family support.
  • A March 2013 letter from a medical doctor states he has treated the applicant’s wife since 1998 and that she is taking prescribed psychotropic medication.
  • The family members of the applicant’s wife all live in the United States.  The family is extremely close and has strong bonds, and she visits with her family often.
  • The applicant’s wife came to the United States more than 20 years ago and is assimilated in manner and ideology.  She became a U.S. citizen in 2004
  • Country conditions information indicates that Pakistan is dangerous, becoming increasingly radical and violent, and that expatriates are subjected to increasing scrutiny.  Anti-Americanism is on the rise.
  • The applicant’s wife has an established job as an accountant in the United States, but a Muslim female in Pakistan is rarely given the opportunity for a career.  It is unlikely the applicant’s spouse would find a job in Pakistan to support herself because of discrimination against women in the work force.
  • The applicant’s wife states that she fears women are a prime target by Islamic fundamentalists in Pakistan and that she does not follow traditional rules for women.
  • Medical treatment is unavailable or unaffordable in Pakistan, so the financial impact of living there would be life-threatening for the applicant’s spouse.  The applicant’s wife asserts that mental health issues are largely ignored in Pakistan.

Based on the above, the AAO found that the applicant’s qualifying spouse will suffer extreme hardship as a consequence of being separated from the applicant, in particular due to her medical and emotional condition.  The AAO also found that the cumulative effect of the qualifying spouse’s family ties and length of residence in the United States, her health and safety concerns, and loss of employment if she were to relocate, rises to the level of extreme  if she returned to Pakistan to reside with her husband.

Extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion. Id. at 299. The adverse factors evidencing an alien’s undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country. Id. at 300.  In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that:

The factors adverse to the applicant include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record and, if so, its
nature, recency and seriousness, and the presence of other evidence indicative of an alien’s bad character or undesirability as a permanent resident of this country . . . . The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where the alien began his residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value and service to the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends, and
responsible community representatives). Id. at 301.

The BIA further states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant for relief must bring forward to establish that he merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

In this case, upon a balancing of the positives and negatives of the case, favorable discretion was exercised and the I-601 waiver was approved.

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

Extreme Hardship Defined

Section 212(a)(9)(B) of the Act provides, in pertinent part:

(i) In General – Any alien (other than an alien lawfully admitted for permanent residence) who –

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of alien’s departure or removal from the United States, is inadmissible.

(v) Waiver. – The Attorney General [now the Secretary of Homeland Security (Secretary)] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

Section 212(a)(6)(C)(i) of the Act provides, in pertinent part, that:

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Section 212(i) of the Act provides, in pertinent part:

(I) The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

(**Please note that the I-601a Provisional Waiver requires a showing of extreme hardship to the U.S. citizen spouse or parent.  In other words, lawful permanent residents are not allowed to be the qualifying relative for I-601a Provisional Waivers).

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964).  In Matter of Cervantes-Gonzalez, the Board of Immigration Appeals provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999).

The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country which the qualifying relative would relocate. Id.  The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id. at 566.

The Board has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme.  These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country.  See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996); Matter of lge, 20 I&N Dec. 880, 883 (BIA 1994); Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of lge, 20 I&N Dec. at 882).  The adjudicator ”must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.” Id.  The actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BI2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

The Psychological Evaluation

The psychological evaluation can thus be a powerful piece of evidence to demonstrate and prove the extreme hardship that the qualifying relative would suffer if he or she is separated from the applicant; or alternatively, if the qualifying relative leaves the U.S. and re-locates abroad in order to be with the applicant.  I will first go over an I-601 waiver application that was approved by the AAO to examine the characteristics of a successful and persuasive psychological evaluation.

The applicant in this case is a native and citizen of Mexico who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for fraud or willful misrepresentation of a material fact in order to procure an immigration benefit.  The applicant is married to a U.S. citizen and seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside with her husband in the United States.

The qualifying relative (the U.S. citizen husband) was born in Texas.  He is 58 years old, and has 10 siblings, 4 children from previous relationships, and 3 grandchildren who all reside in the U.S.  He has a 88 year old elderly father.  He fears that he would not have a job if he moves to Mexico and consequently would not be able to afford visits to see his father.  He encountered a shoot-out between drug cartels and the Mexican military during a visit to see his mother-in-law during a visit to Ciudad Juarez, Mexico.  He and his nephew were stopped by armed men with machine guns who threatened their lives during a visit to see his mother-in-law in the state of Sinaloa, Mexico.  A letter from his sister-in-law confirms the violence in Los Mochis Mexico, and the general state of disrepair of the house there that the applicant and her U.S. citizen husband would have to live in.

The psychological report submitted as part of the I-601 waiver application expressly states the following:

  • The U.S. citizen husband was the middle child of eleven children who grew up in a home with a physically and verbally abusive alcoholic father.
  • The U.S. citizen husband watched and heard his mother being beaten and felt powerless to stop his father.
  • The U.S. citizen husband is very close to his siblings since they supported each other while growing up in order to survive.
  • The U.S. citizen husband grew up in Idaho where he felt a sense of discrimination and prejudice during his school years.
  • When the U.S. citizen husband was 23 years old, he was called back home from the U.S. Army because his mother had died, his father had left, and there was no one to care for his younger siblings.
  • The U.S. citizen husband’s first marriage was brief and they had a son together.  His ex-wife disappeared with his son and he was unable to find him until his son was 12 years old and complained that his mother abused him.  His son subsequently lived with him for two years.
  • The U.S. citizen husband’s physician prescribed him Prozac for his depression which dates back to his first marriage.
  • The U.S. citizen husband re-married and had two children with his second wife.  This marriage lasted 28 years.
  • When the U.S. citizen husband met his current wife (the I-601 waiver applicant), he felt there was new meaning in life.
  • He fears he will go into serious depression if she moves back to Mexico without him, and fears that if he moved to Mexico with her, he would deeply miss his children and siblings.
  • The U.S. citizen husband has a history of depression and anxiety.
  • The U.S. citizen husband has difficulty sleeping, feels anxious, and had had thoughts of suicide.
  • The U.S. citizen husband has been diagnosed with Dysthymia and Adjustment Disorder with Depression and Anxiety.
  • If the wife is not allowed to remain in the U.S., the U.S. citizen husband would experience serious psychological consequences and it his highly likely his depression would worsen to the point he would consider suicide.

In my experience, effective psychological evaluations should always include a detailed personal history of the person being examined (along with the waiver applicant and family members in general).  It should concisely and accurately detail the unique circumstances of the patient that makes him or her particularly vulnerable to hardship.

The psychological evaluation in support of a I-601 or I-601a waiver should summarize the psychological and medical history of the patient, including the length of time the patient has suffered from psychological disorders and medical illnesses; any treatments received including surgery; and the medications the patient has been prescribed.  This is particularly important because the USCIS can discount the credibility of psychological diagnoses prepared solely to support the I-601 or I-601A waiver application.  A discussion of a history of previously diagnosed psychological disorder(s) will go a long ways towards establishing credibility.

The psychological evaluation should describe the emotional impact of both separation and re-location.  In other words, it must discuss the psychological and emotional impact on the qualifying relative if he or she becomes separated from the applicant due to inadmissibility; as well as the psychological and emotional impact on the qualifying relative if he or she re-locates abroad in order to be with the applicant.

Since mental and physical well-being have been found to be closely related, the psychological report can also emphasize the physical consequences of patient’s current or future psychological state.  For example, if the patient suffers from coronary disease, then an aggravation of his or her psychological disorders could contribute to a fatal heart attack.

The psychological evaluation should state the methodology used to diagnose the patient.  It should specify all of the symptoms shown by the patient that led to a particular diagnosis.   If applicable, if should expressly state that separation from the applicant (and re-location abroad to be with the applicant) would make the psychological disorders worsen.   It should also state what the consequences will be for the patient if his or her psychological disorders worsen, including the possibilities of decompensation or suicide.

A well-written psychological evaluation should have a final section that summarizes the conclusions of the psychologist or psychiatrist.  It should emphasize all of the hardships that the patient is currently suffering from, as well as those that he will suffer (or that will grow worse) should the applicant not be admitted to the United States.

It is therefore essential that the psychological evaluation be prepared by a professional who has experience with the unique requirements of the extreme hardship standard used in I-601 and I-601a waiver applications.  If your chosen psychologist or psychiatrist does not have such experience, I suggest providing a link to this article and making sure they understand the importance of a well-written and detailed psychological report.

I-601 Extreme Hardship Waiver Approved by AAO for 10 Year Unlawful Presence Bar

I-601 Extreme Hardship Waiver Approved by AAO for 10 Year Unlawful Presence Bar

I-601 Waiver Legal News

The applicant is a native and citizen of Israel who was found to be inadmissible to the United States pursuant to INA Section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(9)(B)(i)(II), for having been unlawfully present in the United States for more than one year and seeking readmission within ten years of his last departure from the United States.  The applicant entered the United States with a B-2 visitor’s visa.  He departed from the United States on a validly approved advance parole, received after filing for adjustment of status.  The applicant is the spouse of a U.S. citizen and seeks a waiver of inadmissibility to reside in the United States.

INA Section 212(a)(9)(B) of the Act provides, in pertinent part:

(B) Aliens Unlawfully Present.-

(i) In general. – Any alien (other than an alien lawfully admitted for permanent residence) who

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

(v) Waiver. – The Attorney General [now the Secretary of Homeland Security (Secretary)] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General (Secretary) that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565-66 (BIA 1999), the BIA provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family’s ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.  The BIA added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not an exclusive list.  Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.  In each case, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation. Matter of 0-J-0-. 21 I&N Dec. 381, 383 (BIA 1996). (Citations omitted).

An analysis under Matter of Cervantes-Gonzalez is appropriate.  The AAO notes that extreme hardship to a qualifying relative must be established in the event that he or she accompanies the applicant and in the event that he or she remains in the United States, as a qualifying relative is not required to reside outside of the United States based on t he denial of the applicant’s waiver request.

The factors cited by the AAO as persuasive in approval of this I-601 waiver application are the following:

  • The applicant’s spouse has a history of severe problems with alcohol, has sought treatment for her illness, and attends Alcoholics Anonymous.
  • The applicant’t spouse does not have custody of her son (who resides with his father).
  • The applicant’s spouse recovered from her alcohol addiction through the help of the applicant, and after their marriage, began to see her son more often.  Her son has subsequently developed a close bond with the applicant.
  • The applicant’s spouse fears relapse into alcoholic abuse due to the stress of possible separation from her husband or relocation to Israel.
  • The applicant’s spouse has suffered from emotional instability since adolescence, has been admitted to hospital intensive care in the past, and her mother confirms that the applicant’s spouse is suffering emotionally due to possible separation from her husband.
  • The applicant’s spouse has never lived outside the United States, is not Jewish, does not speak Hebrew or any other foreign language, and all of her friends and relatives live in the United States.
  • The applicant’s spouse does not earn enough income to support a decent life for herself or allow her to help her son
  • A psychological evaluation of the applicant’s spouse confirms that she relies on the applicant for her emotional stability as she has been married three times before, with each marriage only lasting less than a year.
  • The psychological evaluation confirms that the applicant’s spouse fears she may drop back into her old drinking habits without her husband’s day-to-day support.
  • The psychological evaluation states that the applicant and his spouse are in a committed and complementary relationship.
  • The psychological evaluation finds that upon separation, the applicant’s spouse would face an emotional and medical crisis, as she has begun to adjust to being a responsible and functional spouse and to trust a male figure for the first time in her life.
  • The psychological evaluation states that substance abuse disorders are usually accompanied by a mood disorder which is either concomitant or the primary cause of the substance abuse.
  • Country condition information from the U.S. Department of State state that Israel has been experiencing violence and instability.

The key takeaway from this case is that the qualifying relative’s socio-economic, emotional, and psychological history should always be mentioned if it makes him or her particularly vulnerable to the extreme hardships brought upon by possible separation or relocation.

In this case, the U.S. citizen spouse has a history of emotional instability including alcoholism, and estrangement from her son.  She was hospitalized in the past, married three times before, and her psychological evaluation confirms that she has not been able to trust a male figure in her life until she met and married the applicant.  Only after her marriage to the applicant did her life improve, allowing her to recover from alcoholic abuse, manage her emotional instability, and begin a renewed relationship with her son.

Whenever possible, it is important to work with a psychologist or psychiatrist who has a history of treating you so that the evaluation carries more credibility in the eyes of the USCIS.  Psychological evaluations done solely for the purpose of the I-601 waiver can be discounted as less than credible by the USCIS.

However, a well-researched and properly drafted psychological evaluation, even one conducted primarily to support a I-601 waiver application, can be very helpful in several ways:

1. It can detail and confirm the unique background of the qualifying relative’s life that makes him or her particularly vulnerable to extreme hardship.  For example, a history of alcoholism, drug abuse, mental disorders, spousal abuse, growing up in a single-family home or as an orphan, and so forth.

2. It can help summarize medical conditions of the qualifying relative that are often difficult to obtain from physicians who routinely refuse to write letters on behalf of their patients.

3. When properly drafted by a psychologist or psychiatrist with experience in extreme hardship waiver cases, they help reinforce the psychological and emotional consequences of possible separation or relocation in a powerful way.

AAO Approves I-601 Waiver for 10 Year Unlawful Presence Bar

AAO Approves I-601 Waiver for 10 Year Unlawful Presence Bar

I-601 Waiver Legal News

The applicant is a native and citizen of Pakistan who was found to be inadmissible to the United States pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act), for having been unlawfully present in the United States for more than one year and again seeking admission within ten years of his last departure from the United States.  The applicant is the spouse of a United States citizen.  He seeks a waiver of inadmissibility to reside in the United States with his family.

Section 212(a)(9)(B) of the Act provides, in pertinent part:

(B) Aliens Unlawfully Present.-

(i) In general- Any alien (other than an alien lawfully admitted for permanent residence) who-

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.

Section 212(a)(9)(B)(v) of the Act provides for a waiver of section 212(a)(9)(B)(i) inadmissibility as follows:

The Attorney General [now Secretary of Homeland Security] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established … that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien.

The AAO states that extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964).  In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999).  The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id.  The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id. at 566.

The Board has also held that the common or typical results of deportation, removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme.  These factors include: economic disadvantage, loss of current employment, inability to maintain one’s present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country.  See generally Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter of Pilch, 21 I&N Dec. at 631-32; Matter of Ige, 20 I&N Dec. at 883; Matter of Ngai, 19 I&N Dec. 245, 246-47 (Comm’r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 81 3 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of 0-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882).  The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.”

The AAO specifically states that the actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships.  See, e.g., In re Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

Regardless of the type of family relationship involved, the hardship resulting from family separation is determined based on the actual impact of separation on an applicant, and all hardships must be considered in determining whether the combination of hardships takes the case beyond the consequences ordinarily associated with removal or inadmissibility. Matter of 0-J-0-, 21 I&N Dec. at 3 83.   Nevertheless, although the AAO requires an applicant to show that a qualifying relative would experience extreme hardship both in the event of relocation and in the event of separation, in analyzing the latter scenario, the AAO gives considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent. Salcido-Salcido, 13 8 F.3d at 1293.

What this means for the I-601 or I-601A waiver applicant is that every hardship to the qualifying relative that results from the separation and relocation should be listed, described, and most importantly, described in detail as to its unique circumstances. For example, while a U.S. citizen spouse re-locating to Mexico may not be considered an “extreme hardship” in and of itself; showing that the U.S. citizens spouse would face dangerous conditions in the specific region of Mexico where she will reside, cannot re-locate her child abroad due to an existing child custody agreement, and suffers from a history of psychological depression, may demonstrate the extreme nature of the hardship.

The factors in this case cited by the AAO in finding extreme hardship and approval of the I-601 waiver are:

  • Psychological evaluation, letters from medical professionals and an affidavit from the qualifying spouse confirming the severity of her depression due to the applicant’s absence.
  • The psychological evaluation explains that the qualifying spouse has had a history of psychological issues, such as depression, which began prior to her separation from the applicant.  If the applicant is unable to return to the United States due to his inadmissibility, the psychologist finds that the qualifying spouse may “require hospitalization in order to protect her from acting on her suicidal ideation.”
  • Medical issues of the qualifying relative including chronic hyperthyroidism and sinus allergies.
  • Financial hardship being suffered by the qualifying relative as shown by her tax returns, banking documentation, letter from the qualifying spouse’s employer, and lease for the qualifying spouse’s residence
  • Qualifying spouse’s affidavit further detailing her financial struggles, and indicating that she and her daughters “live in a very small one bedroom apartment where [they] share the same bed” and that she “can barely make ends meet and every single day is a great financial and emotional struggle.”  The qualifying spouse explains her struggles as a single parent in raising two young children.
  • The psychological evaluation also notes that the qualifying spouse, who lost her own father as a young child, is also suffering emotional issues because she does not want her own children to be raised with only one parent.
  • Country conditions showing Pakistan as “extremely unstable, and dangerous, particularly for Americans.”
  • Qualifying spouse’s affidavit stating that the applicant is unemployed in Pakistan and unable to work due to a disability caused by Polio.  Therefore, if the qualifying spouse were to relocate to Pakistan and the applicant is still unemployed, she may face financial difficulty and other hardships as a result.

The specific supporting documentation provided in this case includes:

  • Affidavits from the qualifying spouse and the applicant
  • Naturalization certificates for family members
  • Letters from medical professionals
  • Psychological evaluation
  • Tax returns, some banking documentation, a pay stub and a letter from the applicant’s employer in Canada
  • Letter from the qualifying spouse’s employer
  • Lease for the qualifying spouse’s residence
  • Country condition materials.

The key points to take away from this case are that psychological evaluations are much more effective when conducted by a medical professional who has been treating the patient for a long period of time.  When a psychological evaluation is conducted solely for purposes of the I-601 waiver, the evaluation should state, if at all possible, the long history of the psychological disorder(s) suffered by the qualifying relative.

Additionally, disabilities of the applicant, in so far as they affect the qualifying relative, should also be noted.  In this case, the applicant had a disability due to polio which affects his ability to obtain employment in Pakistan (thereby causing financial hardship to the qualifying relative should she re-locate to Pakistan).

Letters from the qualifying relative’s employer are also effective if they support financial hardship.  For example, the employer stating that the qualifying relative’s job performance has suffered and may lead to termination due to the emotional impact of the immigration-caused separation, would support the case for both financial and psychological hardships.

It should also be noted that extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion. Id. at 299. The adverse factors evidencing an alien’s undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country. Id. at 300.

In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that: The factors adverse to the applicant include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record and, if so, its nature, recency and seriousness, and the presence of other evidence indicative of an alien’s bad character or undesirability as a permanent resident of this country . . . . The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where the alien began his residency at a young age), evidence of hardship to the alien and his
family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value and service to the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends, and responsible community representatives) . . . .

The BIA states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised.  The equities that the applicant must bring forward to establish that she merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

The positive factors in this case were found to outweigh the adverse factors and discretion was exercised in favor of the applicant.

I-601 Waiver Approved by AAO for Russian Inadmissible Due to Fraud

I-601 Waiver Approved by AAO for Russian Inadmissible Due to Fraud

I-601 Legal News

The applicant is a citizen of Russia who was found to be inadmissible to the United States under INA Section 212(a)(6)(C)(i) for having procured a visa or admission to the United States through fraud or misrepresentation of a material fact.  The applicant resided in the United States from May 5, 2000, when he entered as a visitor for business, to March 2001, when he returned to Russia.

The applicant was found to be inadmissible for having procured a visa through a visa fraud ring by making false statements that he owned a company and was traveling to the U.S. for a trade show.  He was arrested and charged with fraud and misuse or forgery of a visa on September 14, 2000, but the charges were dismissed by the U.S. District Court after the applicant cooperated with authorities in the prosecution of the fraud ring leaders.

The applicant is married to a U.S. citizen and is the beneficiary of an approved Petition for Alien Relative.  The applicant seeks a waiver of inadmissibility pursuant to INA Section 212(i), in order to return to the United States and reside with his wife.

INA Section 212(a)(6)(C) provides, in pertinent part:

(i) Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

INA Section 212(i) provides:

(1) The [Secretary] may, in the discretion of the [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

The first important point to keep in mind is that a waiver of inadmissibility under INA Section 212(i) is dependent upon showing that the bar to admission imposes extreme hardship on the qualifying relative (which includes the U.S. citizen or lawful permanent resident spouse or parent of the applicant).  Hardship to the applicant or his children can be considered only insofar as it results in hardship to a qualifying relative.  See Matter of Mendez-Moralez 21 I&N Dec. 296,301 (BIA 1996).

The second important point to keep in mind when preparing the I-601 waiver is that the applicant must establish extreme hardship to his or her qualifying relative(s) under two possible scenarios: the extreme hardships endured by the qualifying relative due to separation if the applicant remains abroad; and the extreme hardships endured by the qualifying relative due to re-location, if he or she moves abroad to be with the applicant.

Extreme hardship is “not a definable term of fixed and inflexible content or meaning,” but “necessarily depends upon the facts and circumstances peculiar to each case.” Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964).  In Matter of Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; the financial impact of departure from this country;and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.  The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive.

Although hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882).  The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.”

Additionally, although the AAO acknowledged that the actual hardship of each hardship factor varies  with the unique circumstances of each case, it gives considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent.  Salcido-Salcido, 138 F.3d at 1293.

The favorable factors that led to approval of this I-601 waiver are the following:

  • The applicant’s wife is a forty year-old native of Russia and citizen of the United States.  She has lived apart from her husband and older daughter for over six years.  Due to the economic situation in Russia, they decided that she would remain in the U.S. and support the family and the applicant would keep the children with him because she must work long hours as a nurse in order to support the family.
  • The U.S. citizen wife has visited Russia more than thirty times in the past six years and further states that she would have no choice but to move back to Russia if her husband’s I-601 waiver was denied
  • Affidavits from co-workers state that the U.S. citizen wife travels to Russia very frequently, misses her family badly, and gets tears in her eyes whenever she talks about her husband and children
  • The U.S. citizen wife works 24 hours of overtime per week in addition to her three 12-hour shifts as an operating room nurse in order to pay for her travels to Russia.  She usually works immediately the next day after returning from Russia.
  • The U.S. citizen wife feels sick for 10 days after returning from her trips to Russia and states she cannot bear this situation for much longer.
  • The U.S. citizen wife is experiencing financial hardship due to the cost of frequent travels to Russia that cost $850 to $1350 per trip
  • The U.S. citizen wife has resided in the U.S. since 1999 and is regarded by coworkers as dedicated and responsible and serves as a role model for new staff.
  • She purchased a house in 2006 where she intended to move in with her family.  If she left the U.S., she would be forced to sell the house at a $100,000 loss because the housing market has crashed.  She has no way to pay for the short-fall.  Low wages in Russia would mean she would never be able to pay back her debt.
  • The U.S. citizen wife has a mother who also lives in New York and works as a nurse.  She would miss her mother terribly if she re-locates back to Russia.

Finally, in Matter of Mendez-Moralez I&N Dec. 296 (BIA1996), the BIA held that establishing extreme hardship and eligibility for a waiver does not create an entitlement to that relief, and that extreme hardship, once established, is but one favorable discretionary factor to be considered.  In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA1957).

In evaluating whether section 212(i) relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien’s bad character or undesirability as a permanent resident of this country.

The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where alien began residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends and responsible community representatives).  See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA1996).  The AAO must then “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. ”

Discretion was exercised in favor of the applicant due to the factors discussed above and this I-601 waiver case was approved by the AAO.

I-601 Waiver Granted for Theft Charges Deemed Crimes of Moral Turpitude

I-601 Waiver Granted for Theft Charges Deemed Crimes of Moral Turpitude

I-601 Waiver News

The applicant in this case is a native and citizen of the United Kingdom who was found to be inadmissible to the United States pursuant to section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of crimes involving moral turpitude.  The applicant was also found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted to procure entry into the United States by fraud or willful misrepresentation.

The applicant is the spouse of a United States citizen.  The applicant sought a waiver of inadmissibility to reside in the United States with his wife.

On August 8, 1991, the applicant was convicted of theft and attempted theft in the United Kingdom.  He was sentenced to eight months in prison and two years probation.  On June 27, 2007, June 25, 2008, December 20, 2008, and December 13, 2009, the applicant entered the United States under the Visa Waiver Program and on the required Form I-94W the applicant answered “no” to the question, ”have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years.”

Section 212(a)(6)(C) of the Act provides, in pertinent part, that:

(i) Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Section 212(a)(2)(A) of the Act states, in pertinent parts:

(i) Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime … is inadmissible.

“Willfully” misrepresenting a material fact

U.S. Citizenship and Immigration Services interprets the term ”willfully” as knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the factual claims are true.  The AAO stated that in order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately misrepresented material facts. See generally Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). To be willful, a misrepresentation must be made with knowledge of its falsity. 7 I&N Dec. at 164.

To determine whether a misrepresentation is willful, the AAO stated that it must examine the circumstances as they exist at the time of the misrepresentation, and they “closely scrutinize the factual basis” of a finding of inadmissibility for fraud or misrepresentation because such a finding ”perpetually bars an alien from admission.” Maller of Y-G-, 20 I&N Dec. 794, 796-97 (BIA 1994) (citing Matter of Shirdel, 19 I&N Dec. 33, 34-35 (BIA 1984)); see also Matter of Healy and Goodchild, 17 I&N Dec. 22, 28-29 (BIA 1979).

In this case, the AAO acknowledged that the term “moral turpitude” is not in common usage, and it is unlikely that the average person is aware of its meaning and application in U.S. immigration law.  The applicant did not disclose his conviction when asked about crimes involving moral turpitude, but did disclose his convictions when asked on his immigrant visa application about being charged, arrested, or convicted of any offense or crime.  The applicant has no education beyond the age of 16 years old and he claims to have misunderstood the question in regards to a “crime of moral turpitude”.

Given that the term “moral turpitude” is not in common usage together with the fact that the applicant did disclose his criminal convictions when asked the more general question regarding arrests and/or convictions, the AAO found that the applicant did not make a willful misrepresentation on his 1-94Ws or his DS-230. Thus, the AAO found that the applicant is not inadmissible under 212(a)(6)(C)(i) of the Act.

212(h) Waiver

Section 212(h) of the Act provides, in pertinent part:

The Attorney General [Secretary of Homeland Security] may, in his discretion, waive the application of subparagraph (A)(i)(I) … of subsection (a)(2) … if-

(1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General [Secretary] that —

(i) … the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status,

(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii) the alien has been rehabilitated; or

(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General [Secretary) that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien … ; and

(2) the Attorney General [Secretary), in his discretion, and pursuant to such terms, conditions and procedures as be may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.

An application for admission to the United States is a continuing application, and admissibility is determined on the basis of the facts and the law at the time the application is finally considered. Matter of Alarcon, 20 I&N Dec. 557, 562 (BIA 1992).

In this case, since the criminal convictions for which the applicant was deemed inadmissible occurred more than 15 years ago, the AAO found that the inadmissibility can be waived under section 212(h)(1)(A) of the Act.

212(h) Waiver: “Not be contrary to the national welfare, safety, or security of the United States, and the alien been rehabilitated.”

However, Section 212(h)(1)(A) of the Act requires that the applicant’s admission to the United States not be contrary to the national welfare, safety, or security of the United States, and that he has been rehabilitated.

The AAO cited the following as persuasive in finding that his admission would not be contrary to the national welfare, safety, or security of the U.S., and that he has been rehabilitated:

  • Five letters of recommendation for the applicant attesting to his character and rehabilitation.
  • It has been 22 years since the applicant’s criminal conviction.
  • For the last 11 years the applicant has been working as a Reception/Security Officer at a university in the United Kingdom and is highly regarded by the students and professors who work with him.

212(h) Waiver: Discretionary Analysis

The AAO additionally found that the applicant merits a waiver of inadmissibility as a matter of discretion. In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Maller of T- S-Y-, 7 I&N Dec. 582 (BIA 1957).

In evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the factors adverse to the alien include:

  • the nature and underlying circumstances of the exclusion ground at issue
  • the presence of additional significant violations of this country’s immigration laws
  • the existence of a criminal record, and if so, its nature and seriousness
  • the presence of other evidence indicative of the alien’s bad character or undesirability as a permanent resident of this country

The favorable considerations include:

  • family ties in the United States, residence of long duration in this country (particularly where alien began residency at a young age)
  • evidence of hardship to the alien and his family if he is excluded and deported,
  • service in this country’s Armed Forces
  • a history of stable employment
  • the existence of property or business ties
  • evidence of value or service in the community
  • evidence of genuine rehabilitation if a criminal record exists
  • other evidence attesting to the alien’s good character (e.g.,affidavits from family, friends and responsible community representatives)

See Maller of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).  The AAO must then, “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. ” Id at 300. (Citations omitted).

Citing the same favorable factors used to determine that the applicant’s admission would not be contrary to the national welfare, safety, or security of the United States, and that the alien has been rehabilitated, the AAO found that the applicant merited favorable discretion and approved his I-601 waiver.