I-601 Waiver News

The applicant in this case is a native and citizen of the United Kingdom who was found to be inadmissible to the United States pursuant to section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of crimes involving moral turpitude.  The applicant was also found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted to procure entry into the United States by fraud or willful misrepresentation.

The applicant is the spouse of a United States citizen.  The applicant sought a waiver of inadmissibility to reside in the United States with his wife.

On August 8, 1991, the applicant was convicted of theft and attempted theft in the United Kingdom.  He was sentenced to eight months in prison and two years probation.  On June 27, 2007, June 25, 2008, December 20, 2008, and December 13, 2009, the applicant entered the United States under the Visa Waiver Program and on the required Form I-94W the applicant answered “no” to the question, ”have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years.”

Section 212(a)(6)(C) of the Act provides, in pertinent part, that:

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

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.

“Willfully” misrepresenting a material fact

U.S. Citizenship and Immigration Services interprets the term ”willfully” as knowingly and intentionally, as distinguished from accidentally, inadvertently, or in an honest belief that the factual claims are true.  The AAO stated that in order to find the element of willfulness, it must be determined that the alien was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately misrepresented material facts. See generally Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). To be willful, a misrepresentation must be made with knowledge of its falsity. 7 I&N Dec. at 164.

To determine whether a misrepresentation is willful, the AAO stated that it must examine the circumstances as they exist at the time of the misrepresentation, and they “closely scrutinize the factual basis” of a finding of inadmissibility for fraud or misrepresentation because such a finding ”perpetually bars an alien from admission.” Maller of Y-G-, 20 I&N Dec. 794, 796-97 (BIA 1994) (citing Matter of Shirdel, 19 I&N Dec. 33, 34-35 (BIA 1984)); see also Matter of Healy and Goodchild, 17 I&N Dec. 22, 28-29 (BIA 1979).

In this case, the AAO acknowledged that the term “moral turpitude” is not in common usage, and it is unlikely that the average person is aware of its meaning and application in U.S. immigration law.  The applicant did not disclose his conviction when asked about crimes involving moral turpitude, but did disclose his convictions when asked on his immigrant visa application about being charged, arrested, or convicted of any offense or crime.  The applicant has no education beyond the age of 16 years old and he claims to have misunderstood the question in regards to a “crime of moral turpitude”.

Given that the term “moral turpitude” is not in common usage together with the fact that the applicant did disclose his criminal convictions when asked the more general question regarding arrests and/or convictions, the AAO found that the applicant did not make a willful misrepresentation on his 1-94Ws or his DS-230. Thus, the AAO found that the applicant is not inadmissible under 212(a)(6)(C)(i) of the Act.

212(h) Waiver

Section 212(h) of the Act provides, in pertinent part:

The Attorney General [Secretary of Homeland Security] may, in his discretion, waive the application of subparagraph (A)(i)(I) … of subsection (a)(2) … if-

(1) (A) in the case of any immigrant it is established to the satisfaction of the Attorney General [Secretary] that —

(i) … the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status,

(ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and

(iii) the alien has been rehabilitated; or

(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 is established to the satisfaction of the Attorney General [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 … ; and

(2) the Attorney General [Secretary), in his discretion, and pursuant to such terms, conditions and procedures as be 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.

An application for admission to the United States is a continuing application, and admissibility is determined on the basis of the facts and the law at the time the application is finally considered. Matter of Alarcon, 20 I&N Dec. 557, 562 (BIA 1992).

In this case, since the criminal convictions for which the applicant was deemed inadmissible occurred more than 15 years ago, the AAO found that the inadmissibility can be waived under section 212(h)(1)(A) of the Act.

212(h) Waiver: “Not be contrary to the national welfare, safety, or security of the United States, and the alien been rehabilitated.”

However, Section 212(h)(1)(A) of the Act requires that the applicant’s admission to the United States not be contrary to the national welfare, safety, or security of the United States, and that he has been rehabilitated.

The AAO cited the following as persuasive in finding that his admission would not be contrary to the national welfare, safety, or security of the U.S., and that he has been rehabilitated:

• Five letters of recommendation for the applicant attesting to his character and rehabilitation.
• It has been 22 years since the applicant’s criminal conviction.
• For the last 11 years the applicant has been working as a Reception/Security Officer at a university in the United Kingdom and is highly regarded by the students and professors who work with him.

212(h) Waiver: Discretionary Analysis

The AAO additionally found that the applicant merits a waiver of inadmissibility as a matter of discretion. In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Maller of T- S-Y-, 7 I&N Dec. 582 (BIA 1957).

In evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the factors adverse to the alien 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 and seriousness
• the presence of other evidence indicative of the 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 alien began 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 or service in the community
• evidence of genuine rehabilitation if a criminal record exists
• other evidence attesting to the alien’s good character (e.g.,affidavits from family, friends and responsible community representatives)

See Maller of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).  The AAO must then, “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented on the alien’s behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. ” Id at 300. (Citations omitted).

Citing the same favorable factors used to determine that the applicant’s admission would not be contrary to the national welfare, safety, or security of the United States, and that the alien has been rehabilitated, the AAO found that the applicant merited favorable discretion and approved his I-601 waiver.