I-601 and I-212 Waivers Approved for Mexican Husband of U.S. Citizen After Prior Removal and Crime Involving Moral Turpitude

Our office received approval of I-601 and I-212 waivers for the Mexican husband of a U.S. citizen wife: the I-601 Application for Waiver of Grounds of Inadmissibility and the I-212 Application for Permission to Reapply for Admission. Our client was inadmissible to the United States for a crime involving moral turpitude under INA Section 212(a)(2)(A)(i)(I), and for having been previously removed from the United States under INA Section 212(a)(9)(A)(ii).

Our client had lived lawfully in the United States for a number of years, where he met and married his U.S. citizen wife and started a family. He was later convicted of a federal offense that was deemed a crime involving moral turpitude, served his sentence, and was removed to Mexico. His wife and their U.S. citizen children chose to follow him to Mexico rather than split up the family. His wife’s I-130 Petition for Alien Relative had been approved, but our client could not immigrate to the United States unless both waivers were granted.

Note: when I-601 and I-212 waivers are filed together, preparing a winning I-601 waiver (demonstrating extreme hardship to the qualifying relative and a case that merits favorable discretion) generally allows the applicant to meet the standard for approval of the I-212 waiver as well.

The I-212 Waiver: Permission to Reapply for Admission

The I-212 waiver is required because Section 212(a)(9)(A) of the Immigration and Nationality Act provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have remained outside the U.S. for a specified period of time, unless they first obtain permission to reapply for admission under INA Section 212(a)(9)(A)(iii).

In Matter of Tin, 14 I&N Dec. 371 (1973), and Matter of Lee, 17 I&N Dec. 275 (1978), the Board of Immigration Appeals established the standards used to decide applications for permission to reapply. In Matter of Tin, the BIA held that all pertinent circumstances should be considered, including: 1. the basis for deportation; 2. recency of deportation; 3. the applicant’s length of residence in the United States; 4. the applicant’s good moral character; 5. the applicant’s respect for law and order; 6. evidence of reformation and rehabilitation; 7. the applicant’s family responsibilities; 8. any inadmissibility under other sections of law; 9. hardship involving the applicant and others; 10. the need for the applicant’s services in the United States; and 11. whether the applicant has an approved immigrant or non-immigrant visa petition.

In Matter of Lee, the BIA explained that INA 212(a)(9)(A)(iii) is intended to be remedial rather than punitive, and that a record of immigration violations standing alone does not conclusively establish a lack of good moral character. Only “an evinced callous attitude toward violating the immigration laws without a hint of reformation of character” should be weighed heavily against the applicant.

The I-601 Waiver for a Crime Involving Moral Turpitude

Section 212(h) of the Act allows the Secretary of Homeland Security, in the Secretary’s discretion, to waive inadmissibility under INA 212(a)(2)(A)(i)(I) in the case of an immigrant who is the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident, if it is established that the denial of admission would result in extreme hardship to that U.S. citizen or lawfully resident relative.

The I-601 waiver turns on extreme hardship, which is not defined in the Immigration and Nationality Act. As the BIA stated in Matter of Shaughnessy, 12 I&N Dec. 810 (BIA 1968), “the facts and circumstances peculiar to each case should control when interpreting what amounts to extreme hardship.” In Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), the Board confirmed that “a restrictive view of extreme hardship is not mandated either by the Supreme Court or by our published case law.”

The Board has also made clear that relevant 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. 880, 882 (BIA 1994)). The emotional and psychological impact of separation or relocation must be considered, and separation from family living in the United States can be the most important single hardship factor. Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998).

How We Prepared the I-601 and I-212 Waivers

We prepared a comprehensive legal brief of more than 40 pages going over how the facts and circumstances of our clients’ lives met the legal standards of both Matter of Tin and Matter of Lee for the I-212 waiver and the “extreme hardship” standard for the I-601 waiver, together with a collection of 18 separate exhibits. These included a psycho-social evaluation by a licensed clinical psychologist, medical and financial documentation, country conditions research, and numerous letters of reference attesting to our client’s character and rehabilitation.

Key Factors in the I-601 and I-212 Waivers

The key factors we highlighted in the I-601 and I-212 waivers included the following:

• The U.S. citizen wife has been diagnosed with three major psychiatric disorders: Generalized Anxiety Disorder, Persistent Depressive “Dysthymic” Disorder, and Panic Disorder. Her psychological status was assessed as fragile, and long-term separation from her husband would place her at substantial risk of psychiatric decompensation.
• The U.S. citizen wife also manages chronic medical conditions and relies on her husband for daily emotional, psychological, and physical support.
• The couple’s U.S. citizen children, living in Mexico, faced harassment and discrimination at school because of their U.S. citizenship, and lacked access to adequate education and health care.
• Our client is the family’s sole source of financial support. If the family returned to the United States without him, his income could not support two households, and his wife would face financial destitution while being unable to work and care for the children at the same time.
• Remaining in Mexico permanently would expose the U.S. citizen wife to inadequate mental health and medical care, safety risks, and almost no employment prospects, since she does not speak Spanish.
• Our client accepted full responsibility for his past conduct, completed his sentence, and fully complied with the terms of his removal for roughly a decade.
• Since his removal, he has lived as a law-abiding, hard-working professional, earned advanced degrees, and been described by employers, co-workers, and longtime friends as honest, responsible, and devoted to his family.

We showed that the hardships to the U.S. citizen wife and children were not only severe in the present, but would continue to worsen whether the family remained in Mexico or separated, and that our client’s genuine rehabilitation and strong equities clearly warranted a favorable exercise of discretion.

Outcome of the I-601 and I-212 Waivers

As a result of our efforts, both I-601 and I-212 waivers were approved. This family can now return to the United States together after more than a decade of hardship abroad.

If you or a family member needs an I-601, I-601A, or I-212 waiver, you may request a Free Immigration Consultation.

Related Waiver Approvals

• I-601 and I-212 Waivers Approved for U.S. Citizen Spouse and Mexican Spouse Residing Outside the United States
• I-601 Waiver Under INA 212(h) Approved for Israeli Applicant Charged with Crimes Involving Moral Turpitude
• I-601 Waiver Approved and Crime Involving Moral Turpitude Finding Removed After Writ of Mandamus Lawsuit

Past results do not guarantee, warrant, or predict the outcome of any future legal matter.