I-212 Waiver Approved on Appeal by AAO Due to U.S. Citizen Spouse, Lack of Criminal Record, and Showing of Hardship

I-212 Waiver Approved on Appeal by AAO Due to U.S. Citizen Spouse, Lack of Criminal Record, and Showing of Hardship

I-212 Waiver News

The AAO recently granted approval of the I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal for a citizen of Mexico who was ordered removed from the United States on October 11, 2012.

This case is useful to examine because it provides an example of the type of detailed discussion and comprehensive presentation of favorable factors needed in an I-212 waiver in order to obtain approval.  It also highlights the importance of a powerful and credible psychological evaluation conducted for purposes of an immigration waiver case.

The applicant initially entered the United States with a B-2 visitor visa on February 7, 2012, and though her period of authorized stay expired on August 6, 2012, she did not depart the United States until September 28, 2012.

She then sought to procure admission to the United States on October 11, 2012.  In her sworn statement before a U.S. immigration officer on October 11, 2012, she admitted to working without employment authorization during her previous stay in the United States and to staying longer than her period of authorized stay.

The applicant was found to be inadmissible under section 212(a)(7)(A)(i)(I) of the Act.  She was therefore ordered removed under section 235(b)(1) of the Act and removed on October 11, 2012.

Because of her expedited removal order, the applicant was inadmissible pursuant to section 212(a)(9)(A)(i) of the Act and required permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act.

She sought permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act, 8 U.S.C. § 1182(a)(9)(A)(iii), in order to reside in the United States.

The USCIS initially determined that the applicant’s adverse factors outweighed her favorable factors, and denied her I-212 Waiver.

On appeal, it was asserted that the USCIS made several legal errors, including failing to consider the applicant’s many favorable factors, the lack of unfavorable factors, evidence of hardship submitted, and the cumulative effect of hardship on the applicant and her spouse.

In addition, it was asserted that the USCIS applied an extreme hardship standard instead of the required balancing of equities standard; and that her favorable factors outweigh her adverse factors.

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

(A) Certain aliens previously removed.-

(i) Arriving aliens.- Any alien who has been ordered removed under section 235(b )(1) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within five years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(ii) Other aliens.-Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or
(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years  of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(iii) Exception.- Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s re-embarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Secretary has consented to the alien’s reapplying for admission.

In Matter of Tin, 14 I&N Dec. 371 (Reg. Comm. 1973), the Regional Commissioner listed the following factors to be considered in the adjudication of a Form I-212 Application for Permission to Reapply After Deportation:

  • The basis for deportation;
  • recency of deportation;
  • length of residence in the United States;
  • applicant’s moral character;
  • his respect for law and order;
  • evidence of reformation and rehabilitation;
  • family responsibilities;
  • any inadmissibility under other sections of law;
  • hardship involved to himself and others;
  • and the need for his services in the United States.

In Tin, the Regional Commissioner noted that the applicant had gained an equity job experience while being unlawfully present in the United States. The Regional Commissioner then stated that the alien had obtained an advantage over aliens seeking visa issuance abroad or who abide by the terms of their admission while in this country, and he concluded that approval of an application for permission to reapply for admission would condone the alien’s acts and could encourage others to enter the United States to work in the United States unlawfully. Id.

Matter of Lee, 17 I&N Dec. 275 (Comm. 1978) further held that a record of immigration violations, standing alone, did not conclusively support a finding of a lack of good moral character. Matter of Lee at 278.  Lee additionally held that,

“[T]he recency of deportation can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience [toward the violation of immigration laws] ….In all other instances when the cause of deportation has been removed and the person now appears eligible for issuance of a visa, the time factor should not be considered. Id.”

The 7th Circuit Court of Appeals held in Garcia-Lopes v. INS, 923 F.2d 72 (ih Cir. 1991), that less weight is given to equities acquired after a deportation order has been entered.  Further, the equity of a marriage and the weight given to any hardship to the spouse is diminished if the parties married after the commencement of deportation proceedings, with knowledge that the alien might be deported.

It is also noted that the Ninth Circuit Court of Appeals, in Carnalla-Munoz v. INS, 627 F.2d 1004 (2~h Cir. 1980), held that an after-acquired equity, referred to as an after-acquired family tie in Matter of Tijam, 22 I&N Dec. 408 (BIA 1998), need not be accorded great weight by the district director in a discretionary determination.

Moreover, in Ghassan v. INS, 972 F.2d 631, 634-35 (5th Cir. 1992), the Fifth Circuit Court of Appeals held that giving diminished weight to hardship faced by a spouse who entered into a marriage with knowledge of the alien’s possible deportation was proper.

In the present case, the AAO found that these legal decisions establish the general principle that “after-acquired equities” are accorded less weight for purposes of assessing favorable equities in the exercise of discretion.

The applicant and her spouse were married after her expedited removal from the United States; therefore their marriage and hardship were considered to be after-acquired equities and less weight was accorded for these favorable factors.

The I-212 waiver and appeal generally included, but was not limited to:

  • statements from the applicant and her spouse
  • psychological evaluations of the applicant and her spouse
  • medical records
  • financial records
  • statements from friends and family members
  • photographs and country conditions information about Mexico.

The favorable factors in this case that warranted approval of the applicant’s I-212 waiver by the AAO include:

  • the applicant’s lack of a criminal record;
  • her U.S. citizen spouse;
  • an approved Form I-130, Petition for Alien Relative;
  • hardship to the applicant; and
  • hardship to her spouse.

Specifically, concerning the applicant’s own hardship:

  • the applicant stated that she is suffering from severe clinical depression, panic and anxiety attacks, inability to sleep, weight fluctuation, hair loss, and bad moods.
  • A psychologist diagnosed her with symptoms of major episodic depression and generalized anxiety disorder.

Concerning the applicant’s spouse’s hardship:

  • the applicant’s spouse states that he was diagnosed with depression and anxiety disorder;
  • he has developed insomnia;
  • he has become lethargic;
  • he has gained 30 pounds;
  • he was prescribed medication for depression, anxiety and insomnia;
  • he approached his employer about working in Mexico part-time but was denied;
  • he and the applicant want to start a family;
  • he would have to give up his career of 14 years and professional license if he left the United States;
  • he has no family ties in Mexico;
  • he has lived his entire life in the United States and does not speak Spanish;
  • his parents and siblings are in the United States; and
  • Guadalajara is a dangerous area.

A psychologist who has evaluated the applicant’s spouse states that:

  • the applicant’s spouse suffers from depression, anxiety, and panic attacks;
  • he is taking medication for these issues;
  • he has evaluated the applicant’s spouse multiple times and finds that the applicant’s spouse’s condition has steadily deteriorated;
  • the diagnosis of depressive disorder has become major depressive disorder;
  • his generalized anxiety disorder has become panic disorder; and
  • he continues to suffer from insomnia.

The I-212 waiver and appeal also included:

  • articles addressing safety issues in Mexico;
  • statement from the applicant showing that she expresses remorse for her actions;
  • proof that the applicant has paid taxes on her earnings as a nanny while in the United States;
  • statements from friends and family describing the applicant’s good character

The AAO found that the unfavorable factors in this case includes:

  • the applicant’s period of unauthorized stay during her last visit to the United States;
  • her brief period of unauthorized employment;
  • the applicant was out of status for 53 days (noted by the AAO to be a relatively short period of time)

After a careful review of the record, the AAO found that the applicant established that the favorable factors outweigh the unfavorable factors in her case and that a favorable exercise of the Secretary’s discretion was warranted.

In weighing the favorable and unfavorable factors, the AAO determined that certain favorable factors were not after-acquired equities.  In addition, although less weight was given to the applicant’s after-acquired equities, these equities were still considered relatively significant due to the nature of the hardship detailed in the record.

In application proceedings it is the applicant’s burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, the AAO found that burden had been met and the applicant’s I-212 waiver was approved.