I-601 Extreme Hardship Waiver Approved for Gambian for Material Fraud/Misrepresentation

I-601 Extreme Hardship Waiver, Fraud/Misrepresentation, and Psychological Report

I-601 Waiver News

The I-601 Extreme Hardship Waiver applicant is a native and citizen of the Gambia who has resided in the United States since November 5, 2010, when he was admitted pursuant to a non-immigrant visa.  He was found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i), for having procured that visa to the United States through fraud or misrepresentation.

The applicant is the spouse of a U.S. citizen and is the beneficiary of an approved Petition for Alien Relative.  The applicant seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to remain in the United States with his U.S. citizen spouse.

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 or other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Section 212(i) of the Act 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.

Keep in mind that the fraud or willful representation must be of a material fact to render someone inadmissible under Section 212(a)(6)(C).  What is considered a “material” fact?

The Department of State’s Foreign Affairs Manual [FAM] provides, in pertinent part:

Materiality does not rest on the simple moral premise that an alien has lied, but must be measured pragmatically in the context of the individual case as to whether the misrepresentation was of direct and objective significance to the proper resolution of the alien’s application for a visa ….

“A misrepresentation made in connection with an application for a visa or other documents, or with entry into the United States, is material if either:

(1) The alien is excludable on the true facts; or
(2) The misrepresentation tends to shut off a line of inquiry which is relevant to the alien’s eligibility and which might have resulted in a proper determination that he be excluded” (Matter of S- and B-C,  9 I&N 436 at 447.)

DOS Foreign Affairs Manual, § 40.63 N. 6.1.

A misrepresentation is generally material only if by it the alien receives a benefit for which he would not otherwise have been eligible. See Kungys v. United States, 485 U.S. 759 (1988): see also Matter of Tijam, 22 I. & N. Dec. 408 (BIA 1998); Matter of Martinez-Lopez, 10 I. & N. Dec. 409 (BTA 1962; AG 1964) and Matter of S-and B-C-, 9 I. & N. Dec. 436 (BIA 1 50; AG 1961).

By stating that he was married and living with his wife, when in fact he had been separated from her for three years and she was living in another country, the applicant led the embassy to believe that he had close family ties, namely, a wife, in his home country.  By omitting the fact that be had been separated and was living elsewhere, he cut off a line of inquiry which was relevant to the applicant’s request for a visitor visa.   As such, the AAO found the application inadmissible under Section 212(a)(6)(C)(i) of the Act, for fraud and/or misrepresentation with respect to his non-immigrant visa application at the U.S. Embassy in Banjul, the Gambia.

The AAO also found extreme hardship and a favorable exercise of discretion in this I-601 Waiver case based on the following factors:

  • The U.S. citizen spouse had two surgeries in 2012 and 2013 for a blockage in her small intestines, and as a result she suffers with eating and has to undergo iron infusions 1-2 times a year.  Medical records and a letter from her physician are submitted in support for this claim.
  • The physician states that the U.S. citizen spouse had a small intestinal blockage possibly caused by previous gastric bypass surgery, and because additional complications can occur in the future, the physician recommended that the spouse stay in the United States where her surgeons are familiar with her medical needs.
  • The U.S. citizen spouse has a hard time paying for her treatment and infusions even with the health insurance she has from her job as a medical assistant
  • The U.S. citizen spouse’s financial situation has deteriorated so much that she had a car repossessed in August 2012.
  • The U.S. citizen spouse earns $2000 a month, and she is behind on her mortgage and car payments.
  • The U.S. citizen spouse needs the applicant’s income to make ends meet.
  • The U.S. citizen spouse relies on the applicant for psychological support, especially given her traumatic childhood and her first marriage, in which she was abused.
  • A forensic mental health evaluation is submitted in which the forensic evaluator describes the U.S. citizen spouse’s childhood and marriage.  The evaluator reports that her family was very poor, the U.S. citizen spouse was sexually abused and given alcohol by a male relative when she was young, and she had many responsibilities early in life because both her parents were alcoholics.
  • The evaluator states that she became pregnant at age 17 years of age, and married an abusive and emotionally controlling man at age 21.  The evaluator believes that due to her history, she relies on the applicant for emotional support and is able to trust him without fear.  The evaluator concludes that the U.S. citizen spouse suffers to dysthymia and severe stress, and she needs the applicant present to maintain psychological stability.
  • Letters from friends and family describe the U.S. citizen spouse’s emotional issues and the applicant’s assistance with those issues.
  • The U.S. citizen spouse was born in the U.S., has no ties to the Gambia, and a relocation there would cause separation from her parents, her three adult children, and her brother, which would exacerbate her current emotional difficulties.
  • The U.S. citizen spouse has no knowledge of the culture in the Gambia, cannot speak any Gambian languages, and would be unable to continue her education and become a registered nurse in the Gambia, which lacks sufficient educational facilities.  Letters from Gambian citizens are submitted in support.
  • The village where the applicant was born in speaks Wollof instead of English, and the nursing school and hospital are too far to be accessed from the village.
  • Relocation to the Gambia would result in loss of U.S. employment for the U.S. citizen spouse

The key points to take away from this I-601 waiver approval is that the psycho-social profile of the qualifying relative can assist in greatly in proving extreme hardship.  If the qualifying relative is particularly vulnerable to the hardships of separation due to a history of abuse, trauma, and mental health issues, these should be documented by a qualified mental health specialist.  Friends and family members should also corroborate these issues in their own affidavits written in support of the waiver application.

Additionally, when a physician’s letter is procured to document a medical hardship, it is helpful to have the physician recommend that the qualifying relative remain in the U.S. to receive adequate care by those familiar with his/her conditions.  It is often difficult to get physicians to provide anything more than a perfunctory letter or copy of the medical records.  I recommend being persistent and informing the physician that the letter will only be used in support of a U.S. immigration application.  U.S. physicians can be paranoid about medical liability issues so this should alleviate their concerns.