Extreme Hardship - Page 3 of 10 - Smart Immigration Lawyer

Client Approval: I-601 “Extreme Hardship” Waiver Approved for Romanian Client Subject to 10 Year Unlawful Presence Bar & Fraud/Misrepresentation

April 18, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for a Romanian client who is subject to the 10 year unlawful presence bar under INA Section 212(a)(9)(B)(II) and a life-time bar for fraud/misrepresentation under INA Section 212(a)(6)(C)(i).

INA Section 212(a)(9)(B)(II) states:

Any alien who 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.

INA Section 212(a)(6)(C)(i) states:

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.

Our client entered the U.S. lawfully on a valid non-immigrant visa and overstayed his authorized period of stay by over 1 year before voluntarily departing back to his home country of Romania. During his stay inside the United States, he met and married his U.S. citizen wife. He eventually re-located to the United Kingdom, where his U.S. citizen wife joined him due to his inadmissibility to the U.S.. The couple gave birth to a U.S. citizen child who resides with them in London. The couple contacted my office after the Romanian husband was denied at his immigrant visa interview at the U.S. embassy in London due to being subject to the 10 year unlawful presence ground of inadmissibility and life-time bar fraud/misrepresentation.

An I-601 Application for Waiver of Grounds of Inadmissibility requires a showing that the applicant’s U.S. citizen spouse or parent would suffer “extreme hardship” if the applicant is refused admission into the United States. A US citizen fiancé(e) may also be a qualifying relative for purposes of the waiver according to 9 FAM 41.81 N9.3(a) and 8 CFR 212.7(a)(1)(i).

”Extreme hardship” has a special meaning under U.S. immigration law. The factors considered relevant in determining extreme hardship include:

Health of the qualifying relative: ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in the foreign national’s country, anticipated duration of the treatment; whether a condition is chronic or acute, or long or short-term.

Financial considerations: future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs, such as special education or training for children; cost of caring for family members (i.e., elderly and infirm parents).

Education: loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time in grade; availability of special requirements, such as training programs or internships in specific fields.

Personal considerations: close relatives in the United States and/or the foreign national’s country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

Special considerations: cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

Any other information that explains how your personal circumstances may qualify as imposing extreme hardship on a qualifying U.S. citizen or lawful permanent resident relative.

Spouses must demonstrate that their relationship will suffer more than the normal hardship or financial inconvenience caused by family separation.

We prepared a comprehensive I-601 waiver application including a 29 page legal brief going over how the facts and circumstances of our clients’ lives met the legal standards used to define “extreme hardship.” We also thoroughly discussed and presented evidence of the U.S. citizen wife’s mother’s medical condition, as well as the precarious physical state of the U.S. citizen wife’s grandparents. The condition of the U.S. citizen wife’s mother and grand-parents were carefully presented to demonstrate their intimate link and relevance to the psychological hardship being faced by the qualifying relative (the U.S. citizen wife).

This case was also challenging because the U.S. citizen wife and her Romanian husband were residing in London, United Kingdom, together with their child who was born outside the U.S. We had to overcome the presumption that a family already residing abroad in a major metropolis such as London has adjusted to life abroad already and is not suffering extreme hardship. However, due to our experience handling similar cases over the past 12+ years, we anticipated this issue and presented an array of financial, psychological, and other hardship evidence to overcome such a presumption.

The supporting documents submitted as part of this I-601 waiver application included:

Personal affidavits from the U.S. citizen wife’s parents and grand-parents affirming the hardships factors presented in this I-601 waiver
Psycho-social evaluation of the U.S. citizen wife which confirms a substantial risk for psychiatric decompensation, and, potentially, an increased risk for suicide due to the immigration consequences of her Romanian husband’s inadmissibility
A specific discussion of Attachment theory (based on the idea that the bond between an infant and his or her primary caregiver is the crucial and primary influence infant development).
We often cite credible studies and reports from a variety of fields to support our I-601 and I-212 waiver applications. In this case, we referenced a World Health Organization’s study on attachment and early childhood development, which states that loss of a primary caregiver can substantially harm a young child’s psychological and emotional development.
Medical records of the U.S. citizen’s wife’s mother
Medical records of the U.S. citizen wife’s grand-parents.
Detailed break-down of the family’s household income, expenses and debt/liabilities
Detailed country conditions of Romania, particularly as it relates to income, job opportunities, and health care
Letters of good moral character and rehabilitation for the Romanian husband

As a result of our efforts, our client was approved for the I-601 Waiver and consequently, this family of mother, father, and son will be able to live in the United States and provide support to close U.S. citizen relatives who are in need.

Client Approval: I-601 Waiver Approved in 1.5 Months for Membership in Communist Party

April 15, 2016 By Michael Cho Immigration Lawyer Leave a Comment

We recently obtained approval for the I-601 Application for Waiver of Grounds of Inadmissibility for a Chinese national deemed inadmissible pursuant to INA Section 212(a)(3)(D). Our client is the spouse of a U.S. citizen who was found inadmissible at her I-485 adjustment of status interview due to prior membership in the Chinese Community Party.

Our office was contacted by the client due to our extensive experience handling I-601 waiver cases, including obtaining waiver approvals for those deemed inadmissible due to membership in a communist party pursuant to INA Section 212(a)(3)(D).

INA Section 212(a)(3)(D) deems inadmissible any immigrant who is or has been a member of or affiliated with the Community or any other totalitarian party, domestic, or foreign:

(i) In general. Any immigrant who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate thereof), domestic or foreign, is inadmissible.

Three exceptions apply:

INA Section 212 (a)(D)(ii) Exception for involuntary membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that the membership or affiliation is or was involuntary, or is or was solely when under 16 years of age, by operation of law, or for purposes of obtaining employment, food rations, or other essentials of living and whether necessary for such purposes.

INA Section 212 (a)(D)(iii) Exception for past membership. – Clause (i) shall not apply to an alien because of membership or affiliation if the alien establishes to the satisfaction of the consular officer when applying for a visa (or to the satisfaction of the Attorney General when applying for admission) that-

(I) the membership or affiliation terminated at least-

(aa) 2 years before the date of such application, or

(bb) 5 years before the date of such application, in the case of an alien whose membership or affiliation was with the party controlling the government of a foreign state that is a totalitarian dictatorship as of such date, and

(II) the alien is not a threat to the security of the United States.

INA Section 212 (a)(D)(iv) Exception for close family members. – The Attorney General may, in the Attorney General’s discretion, waive the application of clause (i) in the case of an immigrant who is the parent, spouse, son, daughter, brother, or sister of a citizen of the United States or a spouse, son, or daughter of an alien lawfully admitted for permanent residence for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest if the immigrant is not a threat to the security of the United States.

There is also a judicially created exception that states that an alien is admissible if his or her membership is “not meaningful.” The U.S. Supreme Court elaborates that membership is “not meaningful” if the alien lacks “commitment to the political and ideological convictions of communism.” Rowoldt v. Perfetto, 355 U.S. 115 (1957).

As we do with all of our waiver cases in which more than one exception or waiver applies, we presented evidence that our client meets the legal standard for every relevant and applicable exception and waiver. While this is significantly more work for us and not standard practice for some attorneys, we always do our utmost to maximize the probability of approval for our clients at no additional cost.

Specifically, we presented compelling evidence that our client’s membership in the Chinese Community Party was involuntary and “not meaningful.” We discussed how our client held no leadership positions; never attended a Chinese Communist Party meeting; neither advocated for nor endorsed any part of the Chinese Communist Party ideology; and at no time in her life participated in activities promoting Chinese Communist Party principles or advocating against US interests.

We also presented evidence that our client agreed to join the Chinese Community Party due to the scholarship and post-graduate job opportunities it might offer. We then cited objective academic research that found that membership in the Communist Party had a significant impact on increasing upward mobility in employment, and on decreasing the risk of downward mobility or discharge. According to the research we cited, overall, Party Membership accounted for a swing of 30% in the likelihood of a party member experiencing upward or downward mobility, compared to a non-party member (with the non-party member bearing the greater risk of negative employment outcome).

We engaged in an in-depth discussion of how the admission of our client serves the humanitarian purposes of the United States government; promotes the principle of family unity with her U.S. citizen husband; and that it is in the public interest of the United States to allow our client to be admitted for U.S. lawful permanent residence based on her academic background and professional contributions thus far.

This discussion also included a comprehensive illustration of the extreme hardships that our client’s U.S. citizen husband would suffer should he be separated from his wife (or alternatively, forced to return to China). Specifically, we cited the suspicion, monitoring, and possible censure the U.S. citizen is likely to experience should he re-locate back to China, due to politically sensitive topics he brought up at international conferences as part of his professional duties as an academic. We also conducted a financial analysis of the couple’s situation and demonstrated the dependency of the U.S. citizen husband on his wife’s substantial legal income.

Based on our expedited preparation of the waiver and filing, the I-601 waiver was approved within 1.5 month of submission to the USCIS. Our client will now be approved for lawful permanent residence and be able to continue her life in the United States with her husband.

I-601 Waiver for 10 Year Bar Approved While Both Husband and Wife Residing Abroad

April 7, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for an Indian client who was subject to the 10 year “unlawful presence” ground of inadmissibility under INA Section 212(a)(9)(B)(i)(II).

This is a somewhat unique case because both the husband and wife reside in Australia on temporary visas. This made preparation of an effective I-601 waiver more challenging, as we needed to demonstrate that the U.S. citizen wife is presently suffering extreme hardship even while living together with her husband abroad (in a developed country such as Australia).

Section 212(a)(9) 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

(I) was unlawfully present in the United States for a period of more than 180 days but less than 1 year … 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.

(v) Waiver. The Attorney General [now the Secretary of Homeland Security (Secretary)] 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 to the satisfaction of the Attorney General (Secretary) 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 …

Thus, 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.

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.

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, 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 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).

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 v. I.N.S., 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.

In support of this couple’s I-601 waiver application, my office prepared a comprehensive 28-page legal brief going over how the facts and circumstances of the couple’s situation met the legal standards used to define “extreme hardship.” We also discussed and presented special evidence of the hardships the U.S. citizen wife would suffer in both Australia AND India (the home country of the foreign husband). While this significantly increased the scope of the waiver, we believe demonstrating all of the hardships present in every realistic scenario of re-location (in this case, living in Australia or India) makes for a far more effective and successful waiver application.

The factors discussed and proven with a comprehensive collection of exhibits in this I-601 “unlawful presence” waiver include:

Psychological evaluation by a mental health professional verifying the Dysthymic Disorder suffered by the U.S. citizen spouse, as well the critical emotional and psychological support provided by the foreign spouse (the waiver applicant)
The cultural, linguistic, religious, and psychological background of the U.S. citizen spouse, and the social stigma and prejudice she is likely to suffer should the couple re-locate to live long-term in India
A detailed breakdown of household expenses and debts, demonstrating the complete financial dependence of the U.S. citizen spouse on her husband’s earned income, and the significant amount of financial debt that they owe together as a married couple
The academic history and planned professional career of the U.S. citizen spouse, and her inability to engage in her intended profession in Australia or India
Evidence of the good moral character, rehabilitation, and academic and professional success of the foreign husband since he voluntarily decided to depart from the United States

As a result of our efforts, our client was approved for the I-601 waiver and this married couple can now return to the country to lawfully reside together in the U.S.

Requests for Evidence (RFEs) Commonly Issued by USCIS on Waiver Applications

March 30, 2016 By Michael Cho Immigration Lawyer Leave a Comment

I am often contacted by applicants who have received a Request for Evidence from the USCIS and are understandably concerned and unsure how to respond.

While some Requests for Evidence are procedural and relatively simple to handle (e.g. a request for a copy of a marriage certificate, birth certificate, etc.), others are more serious and accompanied by a Notice of Intent to Deny as well. This typically occurs because the adjudicating USCIS officer believes that the applicant failed to meet the legal threshold of the waiver being applied for.

Below are Requests for Evidence commonly issued by the USCIS to waiver applicants. Our office has successfully responded to such requests from the USCIS on behalf of our clients for the past 12+ years. Should such a request be issued, I recommend contacting an experienced I-601 and I-212 waiver attorney and get guidance on how to proceed. It is extremely important that such requests be carefully and fully complied with to ensure successful approval of your waiver application.

100 RFE 601- Waiver Requirements for Unlawful Presence – INA 212(a)(9)(B)(v)
You have been found inadmissible to the United States under section 212(a)(9)(B) of the Immigration and Nationality Act (INA) because you had previously been unlawfully present in the United States in excess of either 180 days, or for one year or more.

To be eligible for a waiver under section 212(a)(9)(B)(v) of the INA, you must show that:

• You have a U.S. citizen or lawful permanent resident spouse or parent, or a U.S. citizen fiance( e) who petitioned for your K visa, who would experience extreme hardship if you were denied admission, and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

101 RFE 601- Waiver Requirements for Criminal & Related Grounds – INA 212(h)
You have been found inadmissible to the United States under section 212(a)(2) of the Immigration and Nationality Act (INA) because of your involvement in: [ISO inserts applicable basis for inadmissibility finding]

• A crime involving moral turpitude (other than purely political offense).
• A controlled substance violation according to the laws and regulations of any country related to a single offense of simple possession of 30 grams or less of marijuana.
• Two or more convictions, other than purely political ones, for which you received sentences of confinement amounting to 5 years or more.
• Prostitution, including having procured others for prostitution or having received the proceeds of prostitution.
• Unlawful commercialized vice whether or not related to prostitution.
• Serious criminal activity but you asserted immunity from prosecution.

This office may approve a waiver of the inadmissibility ground(s) under section 212(h) of the INA, if you can show that either:

You are only inadmissible for participation in prostitution; and

• You have been rehabilitated; and
• Your admission to the United States will not be contrary to the national welfare, safety, or security of the United States; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

The criminal activities for which you are inadmissible occurred more than 15 years ago; and

• You have been rehabilitated; and
• Your admission to the United States will not be contrary to the national welfare, safety, or security of the United States;
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You have a qualifying relative who is a U.S. citizen or lawful permanent resident of the United States; and

• Your qualifying relative would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You are the fiance( e) of a K visa petitioner; and

• The K visa petitioner would suffer extreme hardship on account of your ineligibility to immigrate; and
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

You are a VA WA self-petitioner

In addition to the above requirements, if an applicant has been convicted of a violent or dangerous crime, USCIS will not waive the inadmissibility as a matter of discretion unless the individual can show an extraordinary circumstance, such as:

One involving national security or policy considerations; or
If the denial of your admission would result in exceptional and extremely unusual hardship.

102 RFE 601 – Waiver Requirements for Fraud/Misrepresentation – INA 212(i)
You have been found inadmissible to the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (INA) because you sought to procure an immigration benefit by fraud or willfully misrepresenting a material fact.

To be eligible for a waiver under section 212(i) of the INA, you must show that:

• You have a U.S. citizen or lawful permanent resident spouse or parent, or a U.S. citizen fiance( e) who petitioned for your K visa, who would experience extreme hardship if you were denied admission, or
• You are a VA WA self-petitioner, and that you or your U.S. citizen, lawful permanent resident, or qualified parent or child would experience extreme hardship if you were denied admission; and ‘
• Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

103 RFE 601 – Waiver Requirements for Communicable Disease – INA 212(g)(1)
You have been found inadmissible to the United States under section 212( a)(1)(A)(i) of the Immigration and Nationality Act (INA) because you have a medical condition that will not allow you to enter or remain in the United States. USCIS may waive this inadmissibility ground under section 212(g)(1) of the INA as a matter of discretion after consulting with the Centers for Disease Control and Prevention (CDC).

To be eligible for this waiver, you must show that you are one of the following:

The spouse, parent, unmarried son or daughter, or minor unmarried lawfully adopted child of
- A U.S. citizen; or
- An alien lawfully admitted for permanent residence; or
- An alien who has been issued an immigrant visa

A self petitioner under the Violence Against Women Act (VA WA)

The fiance( e) of a U.S. citizen or the fiance(e)’s child.

104 RFE 601 – Waiver Requirements for Missing Vaccinations – INA 212(g)(2)(C)
You have been found inadmissible to the United States under section 212(a)(1)(A)(2) of the Immigration and Nationality Act (INA) because you have not received the vaccines required for entry into the United States. USCIS may waive this inadmissibility ground under section 212(g)(2)(C) of the INA as a matter of discretion if you can establish that:

You are opposing vaccinations in any form (that is, you are not just opposed to one vaccine but that you oppose the practice of vaccination in general); and
Your objection is based on religious beliefs or your moral convictions; and
Your belief or conviction is sincere (that you actually live according to your belief and conviction, and that you do not just have the belief or conviction because you do not want to be vaccinated).

105VWR – Waiver Requirements for Physical or Mental Disorder- INA 212(g)(3)

You have been found inadmissible to the United States under section 212(a)(1)(A)(iii) of the Immigration and Nationality Act (INA) because you were determined to have a mental or physical disorder that poses or may pose a threat to the property, safety, or welfare of you or others; or because you have a history of a physical or mental disorder and a history of behavior that poses or may pose a threat to the property, safety, or welfare of you or others because the disorder is likely to reoccur.

After consultation with the Centers for Disease Control and Prevention (CDC), USCIS may waive this inadmissibility ground under section 212(g)(3) of the INA as a matter of discretion to ensure that you have arranged for suitable health care in the United States so that your condition will no longer pose a threat to you or others.

106 RFE 601- Waiver Requirements for Membership in a Totalitarian Party – INA 212(a)(3)(D)(iv)
You have been found inadmissible to the United States under section 212(a)(3)(D) of the Immigration and Nationality Act (INA) because you had been a member of the Communist Party or another totalitarian party (or subdivision or affiliate thereof).

To be eligible for a waiver under section 212(a)(3)(D)(iv) of the INA, you must show that:

You are:
- A parent, spouse, son, daughter, brother, or sister of a citizen of the United States, or
- A spouse, son, or daughter of a lawful permanent resident of the United States; and
Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and
You are not a threat to the security of the United States; and
Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

107 RFE 601 – Waiver Requirements for Smuggling-INA 212(d)(11)
You have been found inadmissible to the United States under section 212(a)(6)(E) of the Immigration and Nationality Act (INA) because you had engaged in alien smuggling.

To be eligible for a waiver under section 212(d)(11) of the INA, you must show that:

You are:
- An alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and are otherwise admissible to the United States as a returning resident under section 211(b) of the INA, or
- Seeking admission or adjustment of status as an immediate relative under section INA 201(b)(2)(A) or as an immigrant under section 203(a) of the INA (first, second, and third family-based preference, but not fourth preference) or as the fiance(e) (or child of the fiance(e))’of a U.S citizen; and
- You have encouraged, induced, assisted, abetted, or aided only an individual who at the time of such action was your spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of the law; and
- Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and

Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

108 RFE 601- Waiver Requirements for Subject of Civil Penalty- INA 212(d)(12)
You have been found inadmissible to the United States under section 212(a)(6)(F) of the Immigration and Nationality Act (INA) because you have been the subject of a final order for violation of section 274C of the INA (Document Fraud).

To be eligible for a waiver under section 212(d)(12) of the INA, you must show that:

You are
- An alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation or removal and who is otherwise admissible to the United States as a returning resident under section 211(b) of the INA, or
- Seeking admission or adjustment of status as an immediate relative under section 201(b)(2)(A) of the INA or as an immigrant under section 203(a) of the INA (first, second, and third family-based preference, but not fourth preference) or as the fiance(e) (or child of the fiance(e)) of a U.S. citizen; and
- This is the only civil money penalty order against you under INA 274C; and
- You committed the offense only to assist, aid, or support your spouse or child (and not another individual); and
- Your application should be granted to serve humanitarian purposes, to assure family unity, or because it is otherwise in the public interest; and

Your application should be granted as a matter of discretion, with the favorable factors outweighing the unfavorable factors in your case.

109 RFE 601 – Applicant Previously Removed – INA 212(a)(9)(A)(iii)
The record indicates that in addition to the inadmissibility ground for which you have filed Form I-601, you are also inadmissible under section 212(a)(9)(A) of the Immigration and Nationality Act (INA) due to a previous removal or deportation.

An individual who is inadmissible under section 212(a)(9)(A) of the INA may file an Application for Permission to Reapply for Admission to the United States After Deportation or Removal (Form I-212).

Your application is missing evidence that you have filed Form I-212 with USCIS. Please submit a USCIS receipt notice for Form I-212 as evidence that you have filed the required application.

110 RFE 601-No Evidence of Visa Refusal or Pending I-485/I-821
An individual who is outside the United States may file Form I-601 if he or she has been found inadmissible by a U.S. Consular Officer after having applied for an immigrant visa or a nonimmigrant K or V visa.

An individual who is inside the United States may file Form I-601 along with an Application to Register Permanent Residence or Adjust Status (Form I-485) or an Application for Temporary Protected Status (Form I-821 ), or while the Form I-485 or Form I-821 is pending.

Your application is missing evidence that your waiver application is based on either:

An immigrant visa application (or nonimmigrant K or V visa application) filed with the Department of State (DOS), for which you were found ineligible due to an inadmissibility ground; or
A pending Form I-485 or Form I-821.

Please provide the following evidence to support your application:

If you are outside the United States, submit evidence that you have a pending immigrant visa application (or nonimmigrant K or V visa application), such as a copy of a DOS notice identifying your Consular Case Number.
If you are inside the United States and have a pending Form I-485 or Form I-821, submit evidence that you have a pending application, such as a copy of your USCIS receipt notice (Form I-797).

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Client Approval: I-601 Waiver for Prostitution Approved for K-1 Fiancée at U.S. Embassy Bangkok

March 17, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) for the Thai fiancée of a U.S. citizen that we expeditiously prepared and submitted on behalf of the couple.

The Thai fiancée was found inadmissible to the United States after being charged with engaging in prostitution during her K-1 fiancée visa consular interview (despite not having any such criminal conviction on her formal record). The U.S. embassy in Bangkok, Thailand is well-known for engaging in rigorous consular interviews – conducting both procedural (checking a computerized database) and investigative checks on its applicants, and vigorously charging applicants with inadmissibility if they suspect certain types of conduct.

The U.S. citizen fiancée contacted my office after his Thai fiancée was charged with having engaged in prostitution in the past and deemed inadmissible to the United States pursuant to INA Section 212(a)(2)(D).

Section 212(a)(2)(D) of the Immigration and Nationality Act states:

(D) Prostitution and commercialized vice.-Any alien who-

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
Multiple criminal convictions (212(a)(2)(B))
Prostitution and commercial vice (212(a)(2)(D))
Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))

The Attorney General may waive the grounds of inadmissibility under section 212(a)(2)(D)(i)-(ii) of the Act with regard to prostitution if the alien establishes to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A).

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that this removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

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, 22 I&N Dec. 560, 565-66 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 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.

The Board of Immigration Appeals has also made it clear that although hardships may not be extreme when considered abstractly or individually, “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. 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 Board of Immigration Appeals has also held that hardship factors such as family separation, economic disadvantage, cultural readjustment, et cetera, differ 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 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).

As an example, the Board of Immigration Appeals has found family separation, a common result of inadmissibility or removal, can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 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).

In support of my client’s I-601 waiver, I prepared a comprehensive legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship”; “rehabilitation” of the K-1 fiancée; and that the K-1 fianceé admission would “not be contrary to the national welfare, safety, or security of the U.S.”

In other words, as with all of our waiver cases, we went above and beyond the work that many law firms would engage in by demonstrating that our client met the legal standard of BOTH INA 212(a)(2)(D)(i)-(ii) and INA 212(h)(1)(B). This brief was accompanied by supporting exhibits that provided credible proof of every vital and relevant statement made in the legal brief.

The positive factors in this case included:

Psychological disorders suffered by the U.S. citizen fiancé which includes Dysthymic Disorder and Bipolar Depression, both of which were being aggravated by the prolonged separation of the couple.
Various physical ailments and medical conditions suffered by the U.S. citizen fiancé.
Various physical ailments and medical conditions suffered by the U.S. citizen fiancé’s father, who relies upon his son to oversee his medical care. The U.S. citizen fiancé is also expected to take over day-to-day care of his father in the future when his father’s wife is no longer able to carry out these duties due to her own age and health status.
Various physical ailments and a serious psychological disorder suffered by the U.S. citizen fiancé’s brother. The U.S. citizen fiancé coordinates the medical care of his brother and visits him at the facility where he is hospitalized several times a week.
The role of the U.S. citizen fiancé in caring for indigent and low-income individuals through his professional work. We presented and discussed the irreparable negative impact on the local community should the U.S. citizen fiancé be forced to depart from the U.S. in order to live with his beloved fiancée abroad in Thailand.
Country conditions of Thailand including the inability of the U.S. citizen fiancé to obtain proper psychological care for himself in Thailand; his inability to speak the local language; and his inability to practice his specialized profession there due to language-based licensing requirements.
Evidence of rehabilitation of the Thai fiancée including a letter of good moral character from the local chief of police; her reformed life as a business owner who continues to supports her family financially; her complete honesty in admitting to her past misconduct during her K-1 visa consular interview; and the reason for her past misconduct (which was to financially support her impoverished mother and siblings).

Although extreme hardship is only considered when suffered by the U.S. citizen or lawful permanent resident parent, spouse, son, or daughter of the foreign applicant under INA 212(h)(1)(B), it is my experience that extreme hardship suffered by any close relative of the qualifying relative should be thoroughly discussed. In this case, the extreme hardships to be suffered by the U.S. citizen’s father and U.S. brother in the event of my client’s departure from the U.S., would in turn impact the U.S. citizen himself and aggravate all of the conditions he presently suffers from. This was carefully outlined in detail in our memorandum. This connection can be made when the qualifying relative plays an integral role in taking care of the close relative, either in daily care, financial support, and/or medical oversight.

As a result of the I-601 “prostitution waiver expeditiously prepared and submitted by my office within 2 weeks of my client having first contacted our office, the I-601 waiver application was approved by the USCIS. The couple now happily reside together inside the U.S.

Waiver Approval: I-601 Waiver Approved for K-1 Fiancee Inadmissible for Fraud – Misrepresentation

March 1, 2016 By Michael Cho Immigration Lawyer Leave a Comment

We recently obtained approval of the I-601 “Extreme Hardship” Waiver and K-1 Fiancée Visa for a client from Africa found inadmissible for having attempted to procure an immigration benefit in the United States by fraud or willful misrepresentation of a material fact under INA Section 212(a)(6)(C)(i).

The K-1 fiancée was previously married to a spouse who had won the diversity visa lottery. She attempted to obtain U.S. permanent residence together with her spouse, but was unable to demonstrate to the satisfaction of the consular officer that their marriage was genuine. Due to irregularities that occurred during this process, she was charged with fraud/misrepresentation and became banned for life from the U.S.

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

(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.

The K-1 fiancée subsequently rekindled a friendship with a U.S. citizen who is a member of the U.S. Navy. They fell in love with one another and contacted my office to help represent them throughout the K-1 Fiancée Visa process.

I first provided the couple with a detailed letter going over the K-1 Fiancée Visa process from start to finish. This “start-up package” included client questionnaires and a checklist of supporting documents to gather and forward to my office.

After the initial USCIS petition was expeditiously prepared and filed by my office on behalf of our clients, I provided the couple with another detailed letter going over preparation guidelines and tips for the K-1 visa interview.

To prepare for the fraud/misrepresentation charge that we expected to be levied against the K-1 fiancée visa at her consular interview, I began preparation of the I-601 waiver package while the K-1 visa petition was still processing. This allowed my clients to save time by having the I-601 “extreme hardship” waiver ready to submit as soon as the consular interview was complete.

Section 212(i) of the Act provides that:

The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

A waiver of inadmissibility under section 212(i) 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. The applicant’s 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 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.,Matter of 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).

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.

The favorable factors we presented and proved in this case to obtain approval of the I-601 Waiver includes the following:

The U.S. citizen fiancé is solely responsible for the day-to-day care and financial support of his mother, who suffered severe brain damage and relies upon her son for the necessities of life
The U.S. citizen fiancé lives with his mother and his younger brother. Due to his mother’s incapacity, the U.S. citizen fiancé is now responsible for providing food, housing, clothing, and emotional support to his younger brother as well.
The U.S. citizen fiancé does not earn enough through his work with the U.S. Navy to meet the expenses involved in caring for himself, his incapacitated mother, and his younger brother. He is falling deeper into debt. He needs his fiancée in the U.S. and working to provide a second income that will help meet the financial needs of this tight-knit family.
The U.S. citizen fiancé is at high risk of psychological decompensation due to the tremendous stress of caring for his disabled parent and younger brother. He also faces deployment abroad in 2016 with the U.S. Navy. This is putting extraordinary pressure on him as he needs his fiancée in the United States as soon as possible to help him psychologically cope and to assist in the care for his disabled mother and young brother. His fiancée’s presence in the U.S. and her day-to-day assistance will be especially vital during his deployment abroad with the U.S. Navy.

As a result of our efforts, our client was approved for the I-601 Waiver and K-1 Fiancée Visa. She can now enter the United States, marry her U.S. citizen fiancée, and subsequently apply for adjustment of status to permanent residence in the United States.

I-212 Waiver Approved on Appeal by AAO Due to U.S. Citizen Spouse, Lack of Criminal Record, and Showing of Hardship

February 26, 2016 By Michael Cho Immigration Lawyer 1 Comment

I-212 Waiver News

The AAO recently granted approval of the I-212 Application for Permission to Reapply for Admission into the United States After Deportation or Removal for a citizen of Mexico who was ordered removed from the United States on October 11, 2012.

This case is useful to examine because it provides an example of the type of detailed discussion and comprehensive presentation of favorable factors needed in an I-212 waiver in order to obtain approval. It also highlights the importance of a powerful and credible psychological evaluation conducted for purposes of an immigration waiver case.

The applicant initially entered the United States with a B-2 visitor visa on February 7, 2012, and though her period of authorized stay expired on August 6, 2012, she did not depart the United States until September 28, 2012.

She then sought to procure admission to the United States on October 11, 2012. In her sworn statement before a U.S. immigration officer on October 11, 2012, she admitted to working without employment authorization during her previous stay in the United States and to staying longer than her period of authorized stay.

The applicant was found to be inadmissible under section 212(a)(7)(A)(i)(I) of the Act. She was therefore ordered removed under section 235(b)(1) of the Act and removed on October 11, 2012.

Because of her expedited removal order, the applicant was inadmissible pursuant to section 212(a)(9)(A)(i) of the Act and required permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act.

She sought permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act, 8 U.S.C. § 1182(a)(9)(A)(iii), in order to reside in the United States.

The USCIS initially determined that the applicant’s adverse factors outweighed her favorable factors, and denied her I-212 Waiver.

On appeal, it was asserted that the USCIS made several legal errors, including failing to consider the applicant’s many favorable factors, the lack of unfavorable factors, evidence of hardship submitted, and the cumulative effect of hardship on the applicant and her spouse.

In addition, it was asserted that the USCIS applied an extreme hardship standard instead of the required balancing of equities standard; and that her favorable factors outweigh her adverse factors.

Section 212(a)(9) of the Act states in pertinent part:

(A) Certain aliens previously removed.-

(i) Arriving aliens.- Any alien who has been ordered removed under section 235(b )(1) or at the end of proceedings under section 240 initiated upon the alien’s arrival in the United States and who again seeks admission within five years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(ii) Other aliens.-Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or
(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(iii) Exception.- Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien’s re-embarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Secretary has consented to the alien’s reapplying for admission.

In Matter of Tin, 14 I&N Dec. 371 (Reg. Comm. 1973), the Regional Commissioner listed the following factors to be considered in the adjudication of a Form I-212 Application for Permission to Reapply After Deportation:

The basis for deportation;
recency of deportation;
length of residence in the United States;
applicant’s moral character;
his respect for law and order;
evidence of reformation and rehabilitation;
family responsibilities;
any inadmissibility under other sections of law;
hardship involved to himself and others;
and the need for his services in the United States.

In Tin, the Regional Commissioner noted that the applicant had gained an equity job experience while being unlawfully present in the United States. The Regional Commissioner then stated that the alien had obtained an advantage over aliens seeking visa issuance abroad or who abide by the terms of their admission while in this country, and he concluded that approval of an application for permission to reapply for admission would condone the alien’s acts and could encourage others to enter the United States to work in the United States unlawfully. Id.

Matter of Lee, 17 I&N Dec. 275 (Comm. 1978) further held that a record of immigration violations, standing alone, did not conclusively support a finding of a lack of good moral character. Matter of Lee at 278. Lee additionally held that,

“[T]he recency of deportation can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience [toward the violation of immigration laws] ….In all other instances when the cause of deportation has been removed and the person now appears eligible for issuance of a visa, the time factor should not be considered. Id.”

The 7th Circuit Court of Appeals held in Garcia-Lopes v. INS, 923 F.2d 72 (ih Cir. 1991), that less weight is given to equities acquired after a deportation order has been entered. Further, the equity of a marriage and the weight given to any hardship to the spouse is diminished if the parties married after the commencement of deportation proceedings, with knowledge that the alien might be deported.

It is also noted that the Ninth Circuit Court of Appeals, in Carnalla-Munoz v. INS, 627 F.2d 1004 (2~h Cir. 1980), held that an after-acquired equity, referred to as an after-acquired family tie in Matter of Tijam, 22 I&N Dec. 408 (BIA 1998), need not be accorded great weight by the district director in a discretionary determination.

Moreover, in Ghassan v. INS, 972 F.2d 631, 634-35 (5th Cir. 1992), the Fifth Circuit Court of Appeals held that giving diminished weight to hardship faced by a spouse who entered into a marriage with knowledge of the alien’s possible deportation was proper.

In the present case, the AAO found that these legal decisions establish the general principle that “after-acquired equities” are accorded less weight for purposes of assessing favorable equities in the exercise of discretion.

The applicant and her spouse were married after her expedited removal from the United States; therefore their marriage and hardship were considered to be after-acquired equities and less weight was accorded for these favorable factors.

The I-212 waiver and appeal generally included, but was not limited to:

statements from the applicant and her spouse
psychological evaluations of the applicant and her spouse
medical records
financial records
statements from friends and family members
photographs and country conditions information about Mexico.

The favorable factors in this case that warranted approval of the applicant’s I-212 waiver by the AAO include:

the applicant’s lack of a criminal record;
her U.S. citizen spouse;
an approved Form I-130, Petition for Alien Relative;
hardship to the applicant; and
hardship to her spouse.

Specifically, concerning the applicant’s own hardship:

the applicant stated that she is suffering from severe clinical depression, panic and anxiety attacks, inability to sleep, weight fluctuation, hair loss, and bad moods.
A psychologist diagnosed her with symptoms of major episodic depression and generalized anxiety disorder.

Concerning the applicant’s spouse’s hardship:

the applicant’s spouse states that he was diagnosed with depression and anxiety disorder;
he has developed insomnia;
he has become lethargic;
he has gained 30 pounds;
he was prescribed medication for depression, anxiety and insomnia;
he approached his employer about working in Mexico part-time but was denied;
he and the applicant want to start a family;
he would have to give up his career of 14 years and professional license if he left the United States;
he has no family ties in Mexico;
he has lived his entire life in the United States and does not speak Spanish;
his parents and siblings are in the United States; and
Guadalajara is a dangerous area.

A psychologist who has evaluated the applicant’s spouse states that:

the applicant’s spouse suffers from depression, anxiety, and panic attacks;
he is taking medication for these issues;
he has evaluated the applicant’s spouse multiple times and finds that the applicant’s spouse’s condition has steadily deteriorated;
the diagnosis of depressive disorder has become major depressive disorder;
his generalized anxiety disorder has become panic disorder; and
he continues to suffer from insomnia.

The I-212 waiver and appeal also included:

articles addressing safety issues in Mexico;
statement from the applicant showing that she expresses remorse for her actions;
proof that the applicant has paid taxes on her earnings as a nanny while in the United States;
statements from friends and family describing the applicant’s good character

The AAO found that the unfavorable factors in this case includes:

the applicant’s period of unauthorized stay during her last visit to the United States;
her brief period of unauthorized employment;
the applicant was out of status for 53 days (noted by the AAO to be a relatively short period of time)

After a careful review of the record, the AAO found that the applicant established that the favorable factors outweigh the unfavorable factors in her case and that a favorable exercise of the Secretary’s discretion was warranted.

In weighing the favorable and unfavorable factors, the AAO determined that certain favorable factors were not after-acquired equities. In addition, although less weight was given to the applicant’s after-acquired equities, these equities were still considered relatively significant due to the nature of the hardship detailed in the record.

In application proceedings it is the applicant’s burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, the AAO found that burden had been met and the applicant’s I-212 waiver was approved.

I-601 Waiver Approved for U.S. Military Spouse Inadmissible due to Crimes Involving Moral Turpitude

February 16, 2016 By Michael Cho Immigration Lawyer Leave a Comment

Our office received approval of the I-601 Application of Waiver of Grounds of Inadmissibility for the foreign wife of a member of the U.S. Armed Forces who is subject to a life-time bar from being admitted to the United States for convictions of two separate crimes involving moral turpitude under INA Section 212(a)(2)(A)(i)(I). The foreign wife was also convicted of driving under the influence of alcohol in a separate incident.

The U.S. citizen husband is an active member of the U.S. Armed Forces, works on base in the United States, and became separated from his foreign wife and U.S. citizen son after a finding of inadmissibility by the US embassy during his wife’s immigrant visa consular interview.

He contacted our office due to our 14+ year history of securing approval of I-601 and I-212 immigrant waivers in sensitive and critical situations such as this one.

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.

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 immigrant waiver preparation process.

We always provide a comprehensive waiver worksheet containing a thorough array of questions for our clients to answer about their lives. This allows us to “brainstorm” every relevant factor (such as medical, physical, psychological, financial, legal, or other hardships) 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 12+ 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 word. 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 favorable factors we highlighted in this I-601 Waiver case includes the following:

the U.S. citizen husband is a member of the U.S. Armed Forces who works on the maintenance and operation of sophisticated military vehicles. In my experience, spouses and immediate relatives of members of the U.S. Armed Forces are generally given preference on their waiver applications. However, it is still important to discuss the duties carried out by the member of the U.S. Armed Forces; their role in the defense of the interests of the United States; as well as how their ability to carry out their duties is impacted by the immigration-related consequences of separation (or re-location).
the U.S. citizen husband suffers from mood disorders and physical ailments that are documented to be worsening as a result of separation from his foreign wife and U.S. citizen son. He is a victim of verbal and physical abuse from childhood, and carries the emotional scars from the prior abuse to this day.
the U.S. citizen husband helps to care for his elderly mother, who is also victim of past domestic abuse. It would be emotionally traumatic to force him to choose between life with his family abroad at the cost of abandoning his mother who needs her son nearby.
the U.S. citizen husband is attempting to pay for two homes during this separation with his wife and son. The expenses involved in doing this (combined with travel to a foreign country to visit his family) is outstripping his income and causing severe financial hardship.
the U.S. citizen husband does not know the native language of his wife’s country of origin, would face difficulty obtaining appropriate psychological treatment in English there, and would have to resign from the U.S. military to re-locate abroad to be with his family. Being forced to resign from life-long service to the U.S. Armed Forces would aggravate his precious psychological state and worsen every aspect of his life.

Due to our efforts on behalf of this family, the I-601 Waiver application was approved and this family can soon reside together in the United States. The U.S. citizen husband can also continue his service to the United States Armed Forces and play an integral role in safe-guarding the lives of his fellow servicemen.

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