Peruvian Wife Approved for I-601 “Unlawful Presence” Waiver Based on Extreme Hardship

Peruvian Wife Approved for I-601 "Unlawful Presence" Waiver Based on Extreme Hardship

We recently received approval of the I-601 “Extreme Hardship” Waiver for the Peruvian wife of  a U.S. citizen 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 before departing the U.S. for her home country of Peru.

That section of the INA 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.

We prepared the I-601 waiver 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.

In order to secure approval of this I-601 “unlawful presence” waiver, we prepared a comprehensive 30-page legal memorandum (the I-601 “waiver letter”) that includes in-depth discussion of waiver case law that supports approval of our client’s case.

As we do with all of our waiver cases, we initially provided a Waiver Worksheet to our clients which contains a thorough list of questions for our clients answer and return to us.  The answers provided by our clients help us identify the most important hardship and discretionary factors to be presented to the USCIS in our waiver package.

Our Waiver Worksheet also contains a checklist of suggested documents for our clients to gather.  The questions on our Waiver Worksheet and the checklist of supporting documents is regularly updated and reflects our knowledge of the best ways to secure approval of I-601, I-212, and 212(d)(3) waivers.  Our knowledge in the specialized field of immigration waivers for grounds of inadmissibility has been earned through over 12 years of successfully obtaining waiver approvals on behalf of our clients located throughout the world.

In this case, we also performed detailed country conditions research to demonstrate that the U.S. citizen husband would suffer a variety of hardships if he is forced to move to Peru to reside with his wife.  We cited respected sources and journals such as Peru Economic Outlook; The Heritage Foundation’s Index of Economic Freedom; The World Bank Group; and the United States Department of State – Bureau of Consular Officers, to establish the financial, medical, and physical hardships and risks the U.S. citizen husband and his wife would be subject toif they were forced to reside in Peru due to the applicant’s inadmissibility.  We particularly stressed the physical dangers inherent in residing long-term in Peru since the Peruvian wife has already been the victim of kidnapping.

Other special factors presented that supported approval of this I-601 waiver includes:

  • The U.S. citizen husband has joint-custody over a son who resides in the United States.  He makes regularl child support payments and maintains a close relationship with his child.  Re-location to Peru would endanger our client’s ability to make child support payments and effectively sever the father-son relationship for the severe detriment of both parties.
  • The U.S. citizen husband carries significant financial debt, recently lost his job, and suffers from medical conditions that prevent him from continuing with the physical labor inherent in his chosen occupation.   He requires his wife’s daily support and financial assistance in the United States so that he can transition to a different career given his vulnerable physical condition.
  • The U.S. citizen husband is suffering crippling levels of anxiety during his wife’s absence from the United States.  His wife’s kidnapping (which occurred several years ago when she last resided in Peru) makes him especially worried for her safety.

As a result of the I-601 “unlawful presence” waiver package we prepared on behalf of our clients, this waiver application was approved by the USCIS.  The Peruvian wife can now lawfully residence inside the United States as a U.S. lawful permanent resident, and apply for naturalization to U.S. citizenship in about 3 years.