I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiance

I-601 Waiver for Crime Involving Moral Turpitude Approved for K-1 Fiancé

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the foreign fiancé of a U.S. citizen who is subject to a life-time bar from being admitted to the United States for conviction of a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I).

Our office was contacted by our clients after the foreign fiancé attended his consular interview; was denied and deemed inadmissible for not disclosing a previously expunged conviction; and given a “Foreign Service of the United States of America Refusal Worksheet.” This refusal worksheet will typically notify the applicant of the specific inadmissibility (under the Immigration & Nationality Act) that the applicant is subject to, and whether the applicant is eligible to apply for a waiver or not.

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.

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.,, 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.

Immediately after this case was opened, we initiated our comprehensive immigrant waiver preparation process that has allowed us to prepare winning I-601, I-601A, I-212, and 212(d)(3) waiver applications for the past 17+ years.

We provide our clients with a comprehensive waiver worksheet containing a thorough array of questions to answer about their lives.  This allows us to “brainstorm” every relevant factor (such as medical, physical, psychological, financial, legal, or other hardships, along with any other persuasive argument) that may apply. We then analyze each factor and decide upon the most effective way to present it to the USCIS in our waiver application.

Our waiver worksheet also contains a long checklist of supporting documents to gather and present based upon our experience with successful waiver applications submitted during the past 17+ years.

Overall, our waiver preparation process is constantly improved upon since we regularly prepare and submit winning immigrant waiver applications for clients who come from countries throughout the world.  We are proud to receive multiple approvals on I-601, I-601A, I-212, and 212(d)(3) waiver applications filed on behalf of our clients every single month.

The essential factors we highlighted in our 31 page legal memorandum (including 19 separate legal exhibits to prove every substantial element of our I-601 waiver case) include the following:

  • The U.S. citizen fiancée lives near her aging U.S. citizen parents and assists her father as he copes with a multitude of medical conditions. In addition to caring for her father, the U.S. citizen fiancée also struggles to manage her own health as she suffers from diabetes and mitral valve prolapse, and battles depression and anxiety.
  • The U.S. citizen fiancée harbors the emotional scars of a traumatic early life, and has been diagnosed with Generalized Anxiety Disorder and Persistent Depressive Disorder.
  • The U.S. citizen fiancée’s mother manages the the condition of diabetes and arthritis.
  • The U.S. citizen fiancée feels tremendous responsibility to care for her parents and continue to be physically present for them, especially as their health further deteriorates. She suffers immense anxiety at the possibility of re-locating abroad and being separated from her ailing parents, should the I-601 waiver application be denied
  • The U.S. citizen fiancée maintains employment, but she has accrued substantial credit card debt paying for flights to visit her foreign fiance abroad. More importantly, the stress of her fiancé’s uncertain immigration status, coupled with her psychiatric conditions, has caused her work performance to be negatively impacted and she is fearful of losing her job. The mental anguish she is facing prompted her to receive a referral to a counselor through the Employee Assistance Program at her place of employment.

In these types of cases, it is always important to present and prove the hardships of close U.S. citizen or lawful permanent relatives whose well-being are intimately tied to that of the qualifying relative; and demonstrate how all of the parties involved would be impacted by the immigration consequences of their situation.

Due to our efforts on behalf of this family, the I-601 Waiver application was approved. The K-1 foreign fiancé may now lawfully enter the United States; the couple can get married within 90 days of his entry into the U.S; and the foreign applicant may proceed with his process to Adjust Status to Lawful Permanent Residence thereafter.