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.