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BIA Precedent Decisions on Extreme Hardship for Purposes of the I-601 Waiver and I-601A Provisional Waiver

June 6, 2015 By Michael Cho Immigration Lawyer Leave a Comment

Provided below is a list of precedent decisions by the Board of Immigration Appeals on “extreme hardship.” These decisions are provided as a reference to adjudicating officers of the I-601 and I-601A Provisional Waiver units.

All of the waivers prepared by my office, including the I-601 Waiver and I-601A Provisional Waiver, incorporate relevant case law that pertain to the specific facts of our client’s case.

We constantly monitor administrative, legal, and other changes to the waiver process so that our clients’ waiver applications can be maximized for success.

We begin the waiver preparation process by providing an “extreme hardship” worksheet to our clients. This worksheet helps us identify all of the hardships being suffered by the qualifying relative(s) and the families we represent. This is important because while any single hardship may not be considered “extreme” in and of itself, multiple hardships can “add up” to become “cumulative” and meet the “extreme hardship” standard.

We also provide a detailed checklist of supporting documents to our clients so that every hardship we analyze and discuss can be objectively proven to the satisfaction of the adjudicating waiver officer.

We have a long-standing relationship with a clinical psychologist who is well-versed in preparing psychological evaluations for purposes of the I-601 Waiver and I-601A Provisional Waiver and offers a discounted fee to our clients. Should you decide to get evaluated by your own psychologist, I provide a sample psychological evaluation template so that the evaluation can be drafted in a clear and effective manner by those unfamiliar with the extreme hardship waiver process.

Our completed waiver memos are typically 25-30 pages in length. To this, we add Exhibits to prove every relevant statement made in the waiver. I always forward a draft of the waiver to my clients for review before anything is submitted to the USCIS. We also prepare all of the USCIS forms, organize the Exhibits, and meticulously assemble the waiver package before submitting it to the USCIS on behalf of our clients.

BIA Decision	Summary of Decision on Extreme Hardship
Matter of Sangster, 11 I&N Dec. 309 (BIA 1965)	Economic detriment, in absence of other substantial equities, does not establish extreme hardship. No evidence that suitable employment was unavailable.
Matter of Saekow, 17 I&N Dec. 138 (BIA 1979)	In reference to applicant's suspension of deportation, the Immigration Judge determined that the respondent failed to demonstrate that his deportation would result in extreme hardship to himself or to a specified family member.
Matter of Pilch, 21 I&N Dec. 627 (BIA 1996)	• The term "extreme hardship" refers to hardship that is unusual or beyond that which would normally be expected upon deportation; the common results of deportation and exclusion are not sufficient to prove extreme hardship. • Emotional hardship caused by the severing of family and community ties is a common result of deportation and does not constitute extreme hardship. • To endure the hardship of either separation when it can be avoided by joining the applicant abroad, or of relocation when it can be avoided by remaining in the United States, is a matter of choice and not the result of removal or inadmissibility.
Matter of Piggott, 15 I&N Dec. 129 (BIA 1974)	Immigration Judge finding that the respondents would not be able to provide for their own necessities in Antigua and that their children would suffer as a result of the parents' inability to provide them with proper food, living facilities, and education in that country. Youngest child has rheumatic fever. She is being treated in the US, and equal medical is not available in Antigua. Extreme hardship requirement met.
Matter of Ngai, 19 I&N Dec. 245 (Comm. 1984)	The approval of an application for a waiver pursuant to section 212(h) of the INA is dependent in part upon showing of extreme hardship, and thus only in cases of great actual or prospective injury to the qualifying family member will the bar be removed.
Matter of Louie, 10 I&N Dec. 223 (BIA 1963)	Elderly US Citizen father with no other relatives in the US. Respondent takes him to weekly doctors' appointments. In view of the father's advanced age and physical condition it would be extremely harsh, to both the respondent and his father, to deport the respondent from the US. Extreme hardship met.
Matter of Lopez-Monzon, 17 I&N Dec. 280 (Comm 1979)	• Eligibility under section 212(i) of the INA to apply for a waiver of grounds of excludability is limited to aliens who are spouses, parents or children of US citizens or Lawful Permanent Residents. Congressional intent was to provide for the unification of families and avoid the hardship of separation. • U.S. Citizen child did not reside in the US. The father (who resided in Guatemala) had custody of the child. No evidence was presented to indicate applicant would obtain custody of the child and no persuasive evidence that the applicant intended to bring the child to reside in the US. Approval of the waiver would not have reunited a family; favorable exercise of discretion was not granted.
Matter of Loo, 15 I&N Dec. 601 (BIA 1976)	Applicant has 25 years residence in the US, a Lawful Permanent Resident daughter, and a small investment in a US business in which he was employed. Extreme hardship met.
Matter of Liao, 11 I&N Dec. 113 (BIA 1965)	Hardship claim of fear of persecution and diminished employment opportunities. Applicant did not establish that his deportation would result in extreme hardship because he refused to return to that country after completing the program of military training for which he entered the US and expressed political views which are not looked upon with favor by the Nationalist Government of China on Formosa.
Matter of lge, 20 I&N Dec. 880 (BIA 1994)	Assuming a United States citizen child would not suffer extreme hardship if he accompanies his parent abroad, any hardship the child might face if left in the United States is the result of parental choice, not of the parent's deportation.
Matter of Leon, 10 I&N Dec. 274 (BIA 1963)	Respondent has US military service with a service connected disability (30% ), is a US high school graduate, employed, and most of his adult years were spent in the US. Earning ability has been impaired by the service connected disability. Extreme hardship met.
Matter of Kojoory, 12 I&N Dec. 215 (BIA 1967)	Extreme hardship not established in relation to applicant's claim of fear of persecution if returned to Iran, limited economic opportunities, lack of opportunities in his own field, and difficulty adjusting to the standard of living.
Matter of Kim, 15 I&N Dec. 88 (BIA 1974)	Suspension of deportation under section 244(a)(1) of the INA based on 7 years physical presence in the US will not be granted on a claim of extreme hardship, where the only facts presented tended to show better economic and educational opportunities for her US citizen children in the US than in Korea.
Matter of H-, 14 I&N Dec. 185 (RC 1972) - sec. 212(h)	Extreme hardship within the meaning of section 212(h) of the INA is established where the applicant's spouse is 81 years old and has already endured a 15-year exile from the US to reside with the applicant in Mexico. The applicant established complete reformation from the activities that rendered her excludable and the stability between her US Citizen spouse was satisfactorily demonstrated; Therefore, a waiver pursuant to 212(h) was granted.
Matter of Gibson, 16 I&N Dec. 58 (BIA 1976)	Even though the alien meets the physical presence and Good Moral Character requirements of the statute, suspension of deportation was ordered denied because economic detriment which may result from deportation does not meet the test of extreme hardship within the contemplation of section 244(a)(1) of the INA. Alien was employed as a custodian and should have no difficulty in finding suitable employment abroad. No relatives in the US.
Matter of Da Silva, 217 I&N Dec. 288 (Comm 1979)	• A discretionary decision must be based on the weight factors present in the case, both adverse and favorable. Questionable factors should not be considered at all, or should be resolved in favor of the applicant. • A waiver application under section 212(i) of the INA will be approved in the interest of family reunification where the requisite relationship exists and the favorable factors outweigh the unfavorable factors.
Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978)	The loss of job and the financial loss incurred is not "extreme hardship" within the meaning of section 211 of the INA, despite a 11-year stay in the US.
Matter of Cervantes -Gonzalez, 22 I&N Dec. 560 (BIA 1996)	Outlines hardship factors to consider in determining whether an alien has established extreme hardship pursuant to section 212(i) of the INA.
Matter of Anderson 16 I&N Dec. 596 (BIA 1978)	While political and economic conditions in an alien's homeland are relevant factors in determining extreme hardship under section 244(a)(1) of the INA, they do not justify a grant of relief unless other factors such as advanced age, severe illness, family. ties, etc. combine with economic detriment to make deportation extremely hard on the alien or the citizen or permanent resident members of his family.
Matter of Alonzo, 17 I&N Dec. 292 (Comm 1979)	• The birth of a US Citizen child, whether or not born during a lawful stay of the parents in the US, is a favorable factor and must accorded considerable weight in the adjudication of an application for the relief of a waiver of grounds of excludability under section 212(i) of the INA. • The section 212(i) waiver should be granted in the exercise of discretion, where favorable factors are present, and there is an absence of countervailing adverse factors. • No statutory or other requirement that extreme hardship be shown in a section 212(i) waiver case. • Applicant sought waiver of excludability for obtaining visas by fraud and misrepresentation. The violation was not held as an adverse factor action because it was the violation for which the alien seeks to be forgiven.
Matter of Uy, 11 I&N Dec. 159 (BIA 1965)	Applicant did not establish his deportation would result in extreme hardship, merely because he would suffer some economic hardship due to limited opportunities in his field of training.

BIA Holds that Adjustment of Status Constitutes an Admission for Purposes of Applying for a Fraud Waiver Under INA Section 237(a)(1)(H)

May 19, 2015 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Waiver Legal News

Matter of Agour, 26 I&N Dec. 566 (BIA 2015)

At issue in this case was whether a section 237(a)(1)(H) waiver for certain fraud or misrepresentation at the time of admission is available to aliens who commit fraud in the process of adjusting their status within the United States.

INA section 237(a)(1)(H) states:

(H) Waiver authorized for certain misrepresentations.

The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who–

(i) (I) is the spouse, parent, son or daughter of a citizen of the United States or an alien lawfully admitted to the United States for permanent residence; and

(II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

(ii) is a VAWA self-petitioner. A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.

INA § 237(a)(1)(H) thus provides a discretionary waiver in removal proceedings for certain misrepresentations and fraud at admission that would otherwise render deportable a lawful permanent resident (LPR) or a self-petitioner under the Violence Against Women Act (VAWA).

The applicant is a native and citizen of Morocco who was admitted to the United States on a nonimmigrant visitor visa in 1999. In July 2001, she married a United States citizen who then filed a visa petition on her behalf. In 2002, the applicant was granted conditional permanent resident status pursuant to section 216(a) of the Act, 8 U.S.C. § 1186a(a) (2000). The conditional basis of respondent’s permanent residence was removed in 2005 by the approval of a jointly filed Form I-751 (Petition to Remove Conditions on Residence).

The Department of Homeland Security (“DHS”) filed a notice to appear with the Immigration Court on September 5, 2008, charging the respondent with being removable under section 237(a)(1)(A) of the Act, as an alien who is inadmissible based on fraud or misrepresentation under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i) (2006).

This charge was based on allegations that the respondent procured her adjustment of status by fraud or by willfully misrepresenting a material fact when she married for the sole purpose of obtaining permanent residence in the United States.

The applicant sought to waive fraud that occurred after her initial entry into the United States as a nonimmigrant. The question was whether an adjustment of status can be an admission for purposes of the section 237(a)(1)(H) waiver.

Prior BIA decisions discussing the section 237(a)(1)(H) waiver involved aliens admitted to the United States with immigrant visas who were then charged with being removable for fraud or misrepresentation in that initial entry. See, e.g., Matter of Federiso, 24 I&N Dec. 661 (BIA 2008), overruled on other grounds, Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010); Matter of Fu, 23 I&N Dec. 985 (BIA 2006).

The BIA in this case concluded that an alien’s adjustment of status within the United States constitutes an admission for purposes of the waiver at section 237(a)(1)(H) of the Act.

The Section 237(a)(1)(H) waiver is thus not limited only to those aliens who engage in fraud or misrepresentation at the time of entry into the United States with an immigrant visa. An alien who commits fraud in the course of adjusting status in the United States may waive removal under section 237(a)(1)(A) of the Act as an alien who was inadmissible at the time of adjustment of status based on fraud or misrepresentation.

Client Approval: I-601 Waiver for Fraud/Misrepresentation Approved for Same-Sex Couple

March 2, 2015 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 Chinese client who was subject to the fraud/misrepresentation ground of inadmissibility under INA Section 212(a)(6)(C)(i). He previously misrepresented the nature of his relationship with his same-sex partner during his application for a F-1 student visa. He did so because he feared that his same-sex relationship might become known to the Chinese government if it was disclosed to the US Dept. of State.

After entering the U.S. as an international student on a validly approved F-1 visa, he married his partner and applied for adjustment of status to permanent residence. The couple was denied at their adjustment of status interview when the facts of the prior misrepresentation became known to the interviewing USCIS officer. The same-sex couple contacted my office at that point to prepare their I-601 “Extreme Hardship” waiver and submit it on their behalf.

An I-601 Application for Waiver pursuant to INA Section 212(i) 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.

”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.

In support of this couple’s I-601 waiver application, my office prepared a comprehensive 24-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 evidence of the special circumstances same-sex couples are subject to, including the discrimination, harassment, and intimidation of LGBT individuals in China. A table of exhibits also listed a variety of evidence in support of a showing of “extreme hardship” including:

Psychological evaluation by a clinical psychologist verifying the Generalized Anxiety Disorder and 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 and psychological background of the U.S. citizen spouse, including a substantial history of serious mental illness in his immediate family; and a life-long history of shame and loneliness due to his inability to come out to his friends and family
Medical confirmation of the debilitating physical symptoms suffered by the US citizen spouse including severe back pain, fatigue, and insomnia
A detailed discussion (substantiated by credible evidence) of the status of LGBT individuals in China and the repercussions this couple may suffer if they re-locate to China in order to be together
A detailed discussion (substantiated by credible evidence) of the lack of adequate mental health services in China and its potential impact on the US citizen spouse if he were to re-locate to China
A detailed breakdown of household expenses and debts, demonstrating the financial catastrophe that would result should the U.S. citizen spouse be unable to remain healthy and continue his professional work
The good moral character and rehabilitation of the applicant including the specific circumstances and motivation that led to the misrepresentation

As a result of our efforts, our client was approved for the I-601 waiver within 1 month of submission of the waiver by my office. The applicant was also subsequently approved for lawful permanent residence and now resides together with his spouse inside the U.S.

Client Approval: I-601 Prostitution Waiver, I-601 Fraud Waiver, and I-212 Removal Waiver Approved for South Korean Client

September 20, 2014 By Michael Cho Immigration Lawyer 2 Comments

Our office received approval of both the I-212 Waiver (Application for Permission to Reapply for Admission) and I-601 Waiver (Application for Waiver of Excludability) for the South Korean spouse of a U.S. citizen. The South Korean wife was found inadmissible to the United States based on having admitted to previously engaging in prostitution in the United States; having committed fraud/misrepresentation in order to gain an immigration benefit; and having been expeditiously removed from the U.S. while attempting to enter the U.S. with a validly approved K-1 visa.

The U.S. citizen husband contacted my office after his fiancee’s removal from the United States due to our firm’s in-depth experience in securing I-601 “Prostitution Waivers” and I-601 “Fraud/Misrepresentation Waivers” over the past 12 years. This was a particularly challenging case given the numerous grounds of inadmissibility that the South Korean wife was subject to: prostitution, fraud/misrepresentation, and a 5 year bar due to expedited removal from the U.S.

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.

In Matter of Tin, 14 I & N 371 (1973), and Matter of Lee, 17 I & N Dec. 275 (1978), the Board of Immigration Appeals established the standards to be considered in adjudicating applications for permission to reapply (applied for using the I-212 Waiver): 1. the basis for deportation; 2. recency of deportation; 3. 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. hardship involving the applicant and others; 8. the need for the applicant’s services in the United States; and 9. whether the applicant has an approved immigrant or non-immigrant visa petition.

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 and I-212 waiver applications, 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 client; and that my client’s admission would “not be contrary to the national welfare, safety, or security of the U.S.”

In other words, 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 husband including Dysthymic Disorder and Generalized Anxiety Disorder, both of which were being aggravated by the prolonged separation of the couple
Various physical illnesses and conditions suffered by the U.S. citizen husband, including Chronic Hepatitis B that required constant medical monitoring and treatment in the United States
Various physical illnesses and conditions suffered by the U.S. citizen husband’s parents, both of whom relied upon their son to support them financially and manage their medical care
Significant amounts of U.S. educational and mortgage debt of the U.S. citizen, all of which would be in danger of default should the U.S. citizen husband be forced to re-locate to South Korea (a country where he neither spoke the language nor would be qualified to practice his specialized profession)
Evidence of rehabilitation of the South Korean wife including educational courses undertaken and numerous affidavits written in her support

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 parents in the event of their son’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,” I-601 “fraud/misrepresentation waiver,” and I-212 “removal/deportation waiver” prepared and submitted by my office, the I-601 and I-212 waiver applications were all approved. The couple now happily reside together inside the U.S. The South Korean wife holds U.S. permanent residence and will qualify to apply for U.S. citizenship within three years.

I-601 Waiver Approved by AAO for Fraud/Misrepresentation and Crime Involving Moral Turpitude

April 20, 2014 By Michael Cho Immigration Lawyer 2 Comments

I-601 Waiver Legal News

The applicant is a native and citizen of Pakistan who was found inadmissible under 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 a crime involving moral turpitude. This was due to a conviction on October 6, 1995 for P.L. 215.15.01, or Intimidating a Victim or Witness in the Third Degree.

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 an immigration benefit in the United States by fraud or willful misrepresentation. The applicant submitted false information on an Application for Asylum and Withholding of Removal (Form 1-589).

The applicant sought a waiver of inadmissibility under section 212(h) of the Act and section 212(i) of the Act in order to reside in the United States with his U.S. citizen spouse.

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.

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.

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).

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 that contributed to approval of this I-601 “extreme hardship” waiver include the following:

The applicant’s wife has medical conditions including depression, recurring pain that exacerbates her depression, and anxiety. She is monitored biweekly to ensure that her condition does not become life-threatening.
Should the wife’s condition become unbearable she will undergo a hysterectomy.
The wife’s medical conditions are complicated by her trying to become pregnant. She is undergoing fertility treatment, and the applicant’s presence is necessary for continued support.
Due to health problems the applicant’s wife misses work at times. She depends on the applicant’s income in addition to her own.
If the wife remains in the United States without the applicant she would be unable to support herself entirely and would be unable to visit the applicant in Pakistan.
Affidavit from the wife states that the applicant is her strength and support and that time spent with him is the happiest of her life. She states that she is trying to have a child, but suffers severe menstrual pain and it is difficult to conceive. She states that she was diagnosed with major depressive disorder, anxiety, and hypertension due mainly to the applicant’s immigration problem and her inability to get pregnant, and that she has regularly received psychiatric care for more than two years, taking limited medication because of trying to get pregnant.
A letter from the spouse’s medical doctor states that the wife has a history of adenomyosis, hypothyroidism and depression, with pain and vaginal bleeding that impact her everyday life by causing her to avoid activities. The letter further states that there is a possibility of a hysterectomy, calling it a risky and invasive surgery, and that she is undergoing fertility treatment.
A 2011 psychological evaluation notes the wife’s medical history and states that being unable to conceive causes anxiety. The evaluation states that the spouse is diagnosed with major depressive disorder and it further states that the applicant’s wife could benefit with a closely monitored trial of antidepressants, but that she needs family support.
A March 2013 letter from a medical doctor states he has treated the applicant’s wife since 1998 and that she is taking prescribed psychotropic medication.
The family members of the applicant’s wife all live in the United States. The family is extremely close and has strong bonds, and she visits with her family often.
The applicant’s wife came to the United States more than 20 years ago and is assimilated in manner and ideology. She became a U.S. citizen in 2004
Country conditions information indicates that Pakistan is dangerous, becoming increasingly radical and violent, and that expatriates are subjected to increasing scrutiny. Anti-Americanism is on the rise.
The applicant’s wife has an established job as an accountant in the United States, but a Muslim female in Pakistan is rarely given the opportunity for a career. It is unlikely the applicant’s spouse would find a job in Pakistan to support herself because of discrimination against women in the work force.
The applicant’s wife states that she fears women are a prime target by Islamic fundamentalists in Pakistan and that she does not follow traditional rules for women.
Medical treatment is unavailable or unaffordable in Pakistan, so the financial impact of living there would be life-threatening for the applicant’s spouse. The applicant’s wife asserts that mental health issues are largely ignored in Pakistan.

Based on the above, the AAO found that the applicant’s qualifying spouse will suffer extreme hardship as a consequence of being separated from the applicant, in particular due to her medical and emotional condition. The AAO also found that the cumulative effect of the qualifying spouse’s family ties and length of residence in the United States, her health and safety concerns, and loss of employment if she were to relocate, rises to the level of extreme if she returned to Pakistan to reside with her husband.

Extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion. Id. at 299. The adverse factors evidencing an alien’s undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of this country. Id. at 300. In Matter of Mendez-Moralez, in evaluating whether section 212(h)(1)(B) relief is warranted in the exercise of discretion, the BIA stated that:

The factors adverse to the applicant include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record and, if so, its
nature, recency and seriousness, and the presence of other evidence indicative of an alien’s bad character or undesirability as a permanent resident of this country . . . . The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where the alien began his residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country’s Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value and service to the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends, and
responsible community representatives). Id. at 301.

The BIA further states that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant for relief must bring forward to establish that he merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id. at 301.

In this case, upon a balancing of the positives and negatives of the case, favorable discretion was exercised and the I-601 waiver was approved.

How to Prepare a Powerful Psychological Evaluation to Prove Extreme Hardship for the I-601 and I-601A Waiver

January 13, 2014 By Michael Cho Immigration Lawyer

Extreme Hardship Defined

Section 212(a)(9)(B) of the Act provides, in pertinent part:

(i) In General – Any alien (other than an alien lawfully admitted for permanent residence) who –

(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of 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.

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

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(i) of the Act provides, in pertinent part:

(I) 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.

(**Please note that the I-601a Provisional Waiver requires a showing of extreme hardship to the U.S. citizen spouse or parent. In other words, lawful permanent residents are not allowed to be the qualifying relative for I-601a Provisional Waivers).

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 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 lge, 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 lge, 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 (BI2001) (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).

The Psychological Evaluation

The psychological evaluation can thus be a powerful piece of evidence to demonstrate and prove the extreme hardship that the qualifying relative would suffer if he or she is separated from the applicant; or alternatively, if the qualifying relative leaves the U.S. and re-locates abroad in order to be with the applicant. I will first go over an I-601 waiver application that was approved by the AAO to examine the characteristics of a successful and persuasive psychological evaluation.

The applicant in this case is a native and citizen of Mexico who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for fraud or willful misrepresentation of a material fact in order to procure an immigration benefit. The applicant is married to a U.S. citizen and seeks a waiver of inadmissibility pursuant to Section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside with her husband in the United States.

The qualifying relative (the U.S. citizen husband) was born in Texas. He is 58 years old, and has 10 siblings, 4 children from previous relationships, and 3 grandchildren who all reside in the U.S. He has a 88 year old elderly father. He fears that he would not have a job if he moves to Mexico and consequently would not be able to afford visits to see his father. He encountered a shoot-out between drug cartels and the Mexican military during a visit to see his mother-in-law during a visit to Ciudad Juarez, Mexico. He and his nephew were stopped by armed men with machine guns who threatened their lives during a visit to see his mother-in-law in the state of Sinaloa, Mexico. A letter from his sister-in-law confirms the violence in Los Mochis Mexico, and the general state of disrepair of the house there that the applicant and her U.S. citizen husband would have to live in.

The psychological report submitted as part of the I-601 waiver application expressly states the following:

The U.S. citizen husband was the middle child of eleven children who grew up in a home with a physically and verbally abusive alcoholic father.
The U.S. citizen husband watched and heard his mother being beaten and felt powerless to stop his father.
The U.S. citizen husband is very close to his siblings since they supported each other while growing up in order to survive.
The U.S. citizen husband grew up in Idaho where he felt a sense of discrimination and prejudice during his school years.
When the U.S. citizen husband was 23 years old, he was called back home from the U.S. Army because his mother had died, his father had left, and there was no one to care for his younger siblings.
The U.S. citizen husband’s first marriage was brief and they had a son together. His ex-wife disappeared with his son and he was unable to find him until his son was 12 years old and complained that his mother abused him. His son subsequently lived with him for two years.
The U.S. citizen husband’s physician prescribed him Prozac for his depression which dates back to his first marriage.
The U.S. citizen husband re-married and had two children with his second wife. This marriage lasted 28 years.
When the U.S. citizen husband met his current wife (the I-601 waiver applicant), he felt there was new meaning in life.
He fears he will go into serious depression if she moves back to Mexico without him, and fears that if he moved to Mexico with her, he would deeply miss his children and siblings.
The U.S. citizen husband has a history of depression and anxiety.
The U.S. citizen husband has difficulty sleeping, feels anxious, and had had thoughts of suicide.
The U.S. citizen husband has been diagnosed with Dysthymia and Adjustment Disorder with Depression and Anxiety.
If the wife is not allowed to remain in the U.S., the U.S. citizen husband would experience serious psychological consequences and it his highly likely his depression would worsen to the point he would consider suicide.

In my experience, effective psychological evaluations should always include a detailed personal history of the person being examined (along with the waiver applicant and family members in general). It should concisely and accurately detail the unique circumstances of the patient that makes him or her particularly vulnerable to hardship.

The psychological evaluation in support of a I-601 or I-601a waiver should summarize the psychological and medical history of the patient, including the length of time the patient has suffered from psychological disorders and medical illnesses; any treatments received including surgery; and the medications the patient has been prescribed. This is particularly important because the USCIS can discount the credibility of psychological diagnoses prepared solely to support the I-601 or I-601A waiver application. A discussion of a history of previously diagnosed psychological disorder(s) will go a long ways towards establishing credibility.

The psychological evaluation should describe the emotional impact of both separation and re-location. In other words, it must discuss the psychological and emotional impact on the qualifying relative if he or she becomes separated from the applicant due to inadmissibility; as well as the psychological and emotional impact on the qualifying relative if he or she re-locates abroad in order to be with the applicant.

Since mental and physical well-being have been found to be closely related, the psychological report can also emphasize the physical consequences of patient’s current or future psychological state. For example, if the patient suffers from coronary disease, then an aggravation of his or her psychological disorders could contribute to a fatal heart attack.

The psychological evaluation should state the methodology used to diagnose the patient. It should specify all of the symptoms shown by the patient that led to a particular diagnosis. If applicable, if should expressly state that separation from the applicant (and re-location abroad to be with the applicant) would make the psychological disorders worsen. It should also state what the consequences will be for the patient if his or her psychological disorders worsen, including the possibilities of decompensation or suicide.

A well-written psychological evaluation should have a final section that summarizes the conclusions of the psychologist or psychiatrist. It should emphasize all of the hardships that the patient is currently suffering from, as well as those that he will suffer (or that will grow worse) should the applicant not be admitted to the United States.

It is therefore essential that the psychological evaluation be prepared by a professional who has experience with the unique requirements of the extreme hardship standard used in I-601 and I-601a waiver applications. If your chosen psychologist or psychiatrist does not have such experience, I suggest providing a link to this article and making sure they understand the importance of a well-written and detailed psychological report.

Consular Recommendation of the 212(d)(3) Non-Immigrant Waiver Application to the CBP

January 11, 2014 By Michael Cho Immigration Lawyer 1 Comment

INA Section § 212(d)(3)(A) of the Immigration and Nationality Act states in relevant part:

Except as provided in this subsection, an alien (i) who is applying for a nonimmigrant visa and is known or believed by the consular officer to be ineligible for such visa under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), may, after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite his inadmissibility, be granted such a visa and may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General, or (ii) who is inadmissible under subsection (a) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), and clauses (i) and (ii) of paragraph (3)(E) of such subsection), but who is in possession of appropriate documents or is granted a waiver thereof and is seeking admission, may be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General. The Attorney General shall prescribe conditions, including exaction of such bonds as may be necessary, to control and regulate the admission and return of inadmissible aliens applying for temporary admission under this paragraph.

INA §212(d)(3)(A) thus waives virtually all inadmissibility grounds for non-immigrants including:

health-related grounds (communicable disease, mental illness, drug abuser or addict);
criminal grounds (including crimes involving mortal turpitude, multiple criminal convictions, drug violations, and prostitution);
likelihood of becoming a public charge;
immigration violations (including failure to attend removal proceedings, misrepresentation, false claims of citizenship, alien smuggling, aiding and abetting unlawful employment, student visa abusers, and overstays subject to three– and ten-year bars);
grounds covering persons ordered removed upon arrival, unlawful voters, and U.S. citizens who renounced citizenship to avoid taxation; and
involvement in terrorist activities and association with terrorist organizations.

212(d)(3) non-immigrant waivers by visa applicants are generally filed at a U.S. consulate or embassy abroad. Visa exempt nationals such as Canadians generally have to file in advance of their date of travel at a CBP-designated port of entry or pre-clearance office. All 212(d)(3) waiver applications are then forwarded to the U.S. Customs and Border Protection’s Admissibility Review Office in Washington D.C. Thus, it is not the U.S. Department State or the USCIS that ultimately makes the decision to approve or deny a 212(d)(3) waiver. It is U.S. Customs and Border Protection.

The CBP ARO does consider the same factors used by the U.S. Department State when reviewing 212(d)(3) non-immigrant waiver applications but is not bound by them. Specifically, the ARO will first look at whether the 212(d)(3) waiver was “recommended” by the U.S. consular officer. In making a recommendation to CBP, State Department officers are instructed to include:

• The relevant humanitarian, political, economic or public relations factors;

• a statement (where applicable) that DOS is satisfied the alien has a residence abroad which he or she has no intention of abandoning;

• a statement that the alien is properly classified as a nonimmigrant;

• the officer’s precise recommendation and the reasons therefor.

Consular officers are also instructed that a 212(d)(3) non-immigrant waiver may be requested (except as precluded by statute) for any nonimmigrant alien whose presence would not be detrimental to the United States and that the law does not require that recommendations be limited to exceptional, humanitarian or national interest cases.

In fact, consular officers are instructed to exercise discretion and good judgment but may recommend waivers “for any legitimate purpose such as family visits, medical treatment (whether or not available abroad), business conferences, tourism, etc.”

In my experience however, some consular officers are not familiar with the 212(d)(3) waiver process. I have had cases where thoroughly prepared 212(d)(3) waiver packages were initially not accepted by the consular officer at the visa interview; only to be accepted a few days later after repeated inquiries by my office and another visit by the applicant to the consulate. It is important to be clear, concise, and persistent in these matters.

Once the 212(d)(3) non-immigrant waiver is received by the ARO, the reviewing officer at the CBP considers all of the above and also considers that the Congress has deemed these aliens inadmissible to the United States. In considering the waiver, the CBP officer will weigh the benefit, if any, to the United States should the waiver be granted. In situations where the proposed visit is for the purpose of medical treatment, the CBP officer will consider whether such treatment is available to the alien abroad. Above all, CBP officers are reminded that granting of waivers of inadmissibility grounds should not be routine and available just for the asking. Thus, it is extremely important that every 212(d)(3) non-immigrant waiver application be well-prepared with a detailed legal and factual analysis and well-documented with essential support documents.

However, there may be instances where the consular officer refuses to “recommend” a waiver to the ARO in the first place. This may occur when they believe a waiver recommendation is not warranted given factors such as the recency and seriousness of the crime or offense, type of disability, reasons for the proposed travel to the United States and the probable consequences, if any, to the public interests of the United States. What many applicants (and lawyers) do not seem to realize is that there is a process in place for mandatory referrals of 212(d)(3) waiver applications to the Department of State Visa Office for consideration of a “recommendation” to the CBP ARO:

Mandatory referrals are required in the following situations:

Any case where it is requested by the alien or an interested party in the U.S. that it be forwarded;
Any case where the consular officer knows or has reason to believe that pertinent considerations not available at the post may be available to or through the Department;
Prior refusals;
Any case where the alien’s presence or activities in the U.S. might become a matter of public interest or of foreign relations significance;
Any case in which the Department has mandated an advisory opinion be sought;
The case of any alien who is a national of a country which the U.S. does not recognize or with which we have no diplomatic relations;
The case of any alien not classifiable under INA Section 101 (a) (15) (A) or (G) but destined on official business to the United Nations;
Cases of any SILEX or BUSVIS/SILEX alien and of certain CHINEX or BUSVIS/CHINEX aliens;
The case of any Soviet applying for an I visa;
Any case involving 212(a)(3)(B);
Any cases in which the consular officer recommends a term of greater than one year.

Having said that, the decision-making of consular officers are always given deference. It is always better to present a strong 212(d)(3) waiver application from the beginning and communicate constructively with the consular officer to secure a recommendation to the CBP ARO.

Once a waiver is approved, they are typically approved for a one year period with multiple entries allowed. After the first or second extension, a 5-year validity 212(d)(3) waiver can be given. However, keep in mind that multiple entry waivers are not given to an alien who:

• Has a mental or physical disorder;
• Is a narcotic drug addict or a narcotic trafficker (multiples have been granted before in special cases with DEA/Customs/FBI involvement);
• Is afflicted with a communicable disease;
• Was convicted of a crime involving moral turpitude and is less than 5 years post-release;
• Has a prostitution related activity within 10 years of visa application.

I-601 Waiver Approved by AAO for Russian Inadmissible Due to Fraud

December 7, 2013 By Michael Cho Immigration Lawyer Leave a Comment

I-601 Legal News

The applicant is a citizen of Russia who was found to be inadmissible to the United States under INA Section 212(a)(6)(C)(i) for having procured a visa or admission to the United States through fraud or misrepresentation of a material fact. The applicant resided in the United States from May 5, 2000, when he entered as a visitor for business, to March 2001, when he returned to Russia.

The applicant was found to be inadmissible for having procured a visa through a visa fraud ring by making false statements that he owned a company and was traveling to the U.S. for a trade show. He was arrested and charged with fraud and misuse or forgery of a visa on September 14, 2000, but the charges were dismissed by the U.S. District Court after the applicant cooperated with authorities in the prosecution of the fraud ring leaders.

The applicant is married to a U.S. citizen and is the beneficiary of an approved Petition for Alien Relative. The applicant seeks a waiver of inadmissibility pursuant to INA Section 212(i), in order to return to the United States and reside with his wife.

INA Section 212(a)(6)(C) 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.

INA Section 212(i) provides:

(1) The [Secretary] may, in the discretion of the [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 [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.

The first important point to keep in mind is that a waiver of inadmissibility under INA Section 212(i) is dependent upon showing that the bar to admission imposes extreme hardship on the qualifying relative (which includes the U.S. citizen or lawful permanent resident spouse or parent of the applicant). Hardship to the applicant or his children can be considered only insofar as it results in hardship to a qualifying relative. See Matter of Mendez-Moralez 21 I&N Dec. 296,301 (BIA 1996).

The second important point to keep in mind when preparing the I-601 waiver is that the applicant must establish extreme hardship to his or her qualifying relative(s) under two possible scenarios: the extreme hardships endured by the qualifying relative due to separation if the applicant remains abroad; and the extreme hardships endured by the qualifying relative due to re-location, if he or she moves abroad to be with the applicant.

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. 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.

Although hardships may not be extreme when considered abstractly or individually, the Board has made it clear that “[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-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.”

Additionally, although the AAO acknowledged that the actual hardship of each hardship factor varies with the unique circumstances of each case, it gives considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent. Salcido-Salcido, 138 F.3d at 1293.

The favorable factors that led to approval of this I-601 waiver are the following:

The applicant’s wife is a forty year-old native of Russia and citizen of the United States. She has lived apart from her husband and older daughter for over six years. Due to the economic situation in Russia, they decided that she would remain in the U.S. and support the family and the applicant would keep the children with him because she must work long hours as a nurse in order to support the family.
The U.S. citizen wife has visited Russia more than thirty times in the past six years and further states that she would have no choice but to move back to Russia if her husband’s I-601 waiver was denied
Affidavits from co-workers state that the U.S. citizen wife travels to Russia very frequently, misses her family badly, and gets tears in her eyes whenever she talks about her husband and children
The U.S. citizen wife works 24 hours of overtime per week in addition to her three 12-hour shifts as an operating room nurse in order to pay for her travels to Russia. She usually works immediately the next day after returning from Russia.
The U.S. citizen wife feels sick for 10 days after returning from her trips to Russia and states she cannot bear this situation for much longer.
The U.S. citizen wife is experiencing financial hardship due to the cost of frequent travels to Russia that cost $850 to $1350 per trip
The U.S. citizen wife has resided in the U.S. since 1999 and is regarded by coworkers as dedicated and responsible and serves as a role model for new staff.
She purchased a house in 2006 where she intended to move in with her family. If she left the U.S., she would be forced to sell the house at a $100,000 loss because the housing market has crashed. She has no way to pay for the short-fall. Low wages in Russia would mean she would never be able to pay back her debt.
The U.S. citizen wife has a mother who also lives in New York and works as a nurse. She would miss her mother terribly if she re-locates back to Russia.

Finally, in Matter of Mendez-Moralez I&N Dec. 296 (BIA1996), the BIA held that establishing extreme hardship and eligibility for a waiver does not create an entitlement to that relief, and that extreme hardship, once established, is but one favorable discretionary factor to be considered. 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 Matter of T-S-Y-, 7 I&N Dec. 582 (BIA1957).

In evaluating whether section 212(i) 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, and 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, and other evidence attesting to the alien’s good character (e.g., affidavits from family, friends and responsible community representatives). See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA1996). 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. ”

Discretion was exercised in favor of the applicant due to the factors discussed above and this I-601 waiver case was approved by the AAO.

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