(b)(6)
DATE:
MAY
2 0
2014
INRE:
APPLICATION:
ON BEHALF OF APPLICANT:
INSTRUCTIONS:
OFFICE:
NEW
ARK, NEW JERSEY
Applicant:
U.S.
Department
of
Homeland Security
U.S. Citizenship and Immigration Service:
Office
of
Administrative Appeals
20 Massachusetts Ave. NW MS 2090
Washington, DC 20529-2090
U.S.
Citizenship
and Immigration
Services
File:
Application for Waiver
of
Grounds
of
Inadmissibility under Section 212(i)
of
the Immigration and Nationality Act, 8 U.S.C. ยง 1182(i)
Enclosed please find the decision
of
the Administrative Appeals Office (AAO) in your case. This is a non-
precedent decision. The AAO does not announce new constructions
of
law nor establish agency policy
through non-precedent decisions.
Thank you,
~)/'<"'tA
'
{
'
-
Ron Rosenberg
Chief, Administrative Appeals Office
www.uscis.gov
(b)(6)
NON-PRECEDENT
DECISION
Page 2
DISCUSSION: The Field Office Director, Newark, New Jersey, denied the waiver application
and the matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal
will be sustained.
The applicant is a native and citizen
of
Jamaica who was found
to
be inadmissible to the United
States pursuant
to
section 212(a)(6)(C)(i)
of
the Immigration and Nationality Act (the Act), 8
U.S.C. ยง 1182(a)(6)(C)(i), for seeking
to
procure a visa, other documentation, or admission into
the United States or other benefit provided under the Act by willful misrepresentation. The
applicant is married
to
a U.S. citizen and is the beneficiary
of
an approved Petition for Alien
Relative (Form I-130). The applicant seeks a waiver
of
inadmissibility pursuant
to
section 212(i)
of the Act, 8 U.S.C.
ยง 1182(i), in order to reside in the United States.
The field office director concluded that the applicant failed
to
establish that extreme hardship
would be imposed on a qualifying relative and denied the Form I-601, Application for Waiver
of
Grounds
of
Inadmissibility, according!
y.
See Decision
of
the Field Office Director, dated October
3, 2013.
On appeal counsel contends that the field office director erred in finding that the applicant failed
to
establish that if a waiver is not granted, his U.S. citizen spouse will suffer extreme hardship.
See Notice
of
Motion or Appeal (Form I-290B), received November
1,
2013 and Counsel's Appeal
Brief, dated November 25, 2013.
The record contains, but is not limited
to:
Form I-290B; counsel's appeal brief and earlier letter
brief in support
of
a waiver; various immigration applications and petitions; hardship affidavits
from the applicant's spouse; affidavits from the applicant and his spouse's mother; letters
of
character reference, support and concern; medical records and documents; employment, tax and
financial records; school and student loan documents; medical, divorce, and financial documents
for the applicant's spouse's mother; birth and marriage certificates; visa-related documents; and
country-conditions reports for Jamaica. The entire record was reviewed and considered in
rendering this decision on the appeal.
Section 212(a)(6)(C)
of
the Act provides, in pertinent part, that:
(i) Any alien who, by fraud or willfully misrepresenting a material fact, seeks
to
procure (or has sought
to
procure or has procured) a visa, other documentation,
or admission into the United States or other benefit provided under this Act is
inadmissible.
The record shows that during his August 27, 2012 adjustment
of
status interview, the applicant
admitted that in order
to
secure a U.S. visa and admission to the United States, he falsely
indicated on a nonimmigrant visa application dated March 13, 2009, that he was married. Based
on the foregoing, the applicant was found to be inadmissible under section 212(a)(6)(C)(i)
of
the
Act, 8 U.S.C. ยง 1182(a)(6)(C)(i). The record supports this finding, the applicant does not contest
inadmissibility, and the AAO concurs that the applicant is inadmissible under section
212(a)(6)(C)(i)
of
the Act. He requires a waiver under section 212(i)
of
the Act.
(b)(6)
NON-PRECEDENT DECISION
Page
3
A waiver
of
inadmissibility under sections 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. Hardship
to
the applicant can be considered
only insofar as it results in hardship
to
a qualifying relative. In the present case, the applicant's
spouse
is
the only qualifying relative.
If
extreme hardship
to
a qualifying relative is established,
the applicant
is
statutorily eligible for a waiver, and users 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. !d. 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 (Comrn'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
0-1-0-,
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."
/d.
(b)(6)
NON-PRECEDENT
DECISION
Page 4
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. 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). Therefore, we consider the totality
of
the circumstances
in determining whether denial
of
admission would result in extreme hardship
to
a qualifying
relative.
The applicant's spouse is a 25-year-old native and citizen
of
the United States who asserts
separation-related hardship
of
an emotional/psychological, physical/medical, and economic nature.
Documentary evidence shows that the applicant's spouse has been diagnosed with the Human
Pappiloma Virus (HPV), for which she is being monitored through biannual pap smears and has
undergone at least one colposcopy, and Narcolepsy for which she has been assessed through a
sleep study and referred for follow-up behavioral therapy and medication. Medical information
sheets in the record indicate that while there is currently no cure for either condition, both can be
managed through careful monitoring, behavioral modifications, and treatment
of
symptoms. The
applicant's spouse indicates that significant stress related to potential separation from the
applicant, on whom she is emotionally and economically dependent, has exacerbated her
conditions, causing her
to
suffer breakouts
of
genital warts which in turn leave her feeling
ashamed and very depressed. She adds that constant worry is causing her to lose focus while
studying
to
become a Licensed Practical Nurse (LPN). The applicant's spouse explains that when
one's immune system is overloaded with stress, flare-ups
of
HPV symptoms occur more
frequently. The information sheet confirms that persons with weak immune systems may be less
able to fight off HPV and more likely
to
develop health problems, including cervical and other
cancers.
The applicant's spouse explains that she cannot submit tangible proof
of
her mental and emotional
health related
to
these chronic conditions and their exacerbation as a result
of
stress over potential
separation from the applicant. She states that she is close
to
a nervous breakdown but cannot
afford to see a therapist. Similarly, the applicant's spouse indicates that she knows she must
undergo treatment for Narcolepsy, but the sleep study alone was very expensive, she does not have
health insurance, and she cannot afford to take on a greater financial burden at this time. Further
addressing economic hardship, the applicant's spouse avers that as she is in nursing school, the
applicant pays all their bills - including for her medical treatment and her student loans and credit
card bills which are in excess
of
$100,000. She explains that while she works two jobs, they are
both part-time and pay only minimum wage. Corroborating wage documents show that the
(b)(6)
NON-PRECEDENT
DECISION
Page 5
applicant earns approximately four times what his spouse earns, and billing statements confirm the
spouse's level
of
debt. The applicant's spouse states that her mother, with whom she and the
applicant reside, is in deep financial trouble and relies on the applicant's income to help with her
car payment, gasoline, insurance, and other necessities in addition
to
rent payments which go
toward her mortgage. The applicant's spouse's mother confirms in her affidavit that she is in dire
financial straits and about
to
lose her home as a result
of
a contentious divorce and back problems,
for which she has required short-time medical leave from work. She indicates that without
economic assistance from the applicant, she would be unable to meet her financial obligations and
keep a
roof
over her own head and that
of
the applicant's spouse. Corroborating financial and
medical records for the applicant's spouse's mother have been submitted for the record.
The AAO has considered cumulatively all assertions
of
hardship to the applicant's spouse
including the economic, emotional, and physical/medical impacts
of
separation from the applicant,
and the permanent nature
of
the section 212(a)(6)(C)(i) bar. Considered in the aggregate, the
AAO finds that the evidence is sufficient to demonstrate that the applicant's U.S. citizen spouse
would suffer extreme hardship due
to
separation from the applicant.
Addressing relocation, the applicant's spouse asserts hardship
of
an emotional, familial, medical,
economic, and employment nature. She indicates that she has lived in the United States her entire
life, and while she has nominal family ties
to
Jamaica, her closest relative there is an elderly
paternal grandmother who suffers from diabetes and Alzheimer's and
is
in no position
to
support
or house her. Conversely, the applicant's spouse describes a very close relationship with her
mother, with whom she and the applicant reside and who relies upon them for support, and an
equally close relationship with her father in Florida and a number
of
other relatives. The
applicant's spouse explains that she has nearly completed nursing school and the fulfillment
of
her
dream
to
work as an LPN, employment through which she will be able
to
pay down her significant
student loan obligations and credit card debt in the United States. She avers that she would be
unable to find work in Jamaica, where unemployment is very high, she would not be licensed
as
a
nurse and there are
no
LPN programs. She states that were she
to
go further into debt and start
over
to
train as a Registered Nurse (RN), she does not believe she would be able to sustain the
rigors
of
a full-time RN program given her narcoleptic condition. The applicant's spouse fears
that the applicant will be unable
to
secure employment in Jamaica sufficient to sustain them, and
would no longer able to assist her mother and his family financially. Country conditions reports
submitted for the record indicate that the unemployment rate is high and the minimum wage is just
$56.18 per week. The applicant's mother writes that due to the pervasive lack
of
jobs, she
sometimes sells in the market day and night
to
make ends meet for her children, but without the
applicant's contributions would be unable to
do
so. She explains that her home has no road, no
electricity, and no gas stove, and though she has a coal pot, she cannot afford coal. The
applicant's mother states that her home has no running water and she cannot afford to build a tank
and must rely on rainwater and the kindness
of
neighbors for water.
The applicant's spouse expresses concern for her safety as a result
of
Jamaica's high crime rate
and for her health as a result
of
Jamaica's lack
of
adequate medical care and facilities -
particularly in light
of
her two medical conditions, one
of
which puts her at a greatly increased risk
of
developing cancer. Country conditions documents submitted for the record confirm that crime,
(b)(6)
NON-PRECEDENT
DECISION
Page
6
including violent crime, is a serious problem in Jamaica, and that medical care is much more
limited than in the United States.
The AAO has considered cumulatively all assertions
of
relocation-related hardship
to
the
applicant's spouse, including her adjustment to a country in which she has never resided and
to
which she has no close family ties or support; her lifelong residence in the United States; her close
family ties
to
the United States - particularly
to
her mother with whom she and the applicant
reside and provide financial support, and
to
her father and other relatives; her close community
and academic ties
to
the United States where she is about
to
complete her LPN program; her
significant medical conditions and ties
to
trusted physicians in the United States; and her stated
medical/health-related, emotional/psychological, employment/economic, and safety-related
concerns about Jamaica. Considered in the aggregate, the AAO finds the evidence sufficient
to
demonstrate that the applicant's U.S. citizen spouse would suffer extreme hardship were she
to
relocate
to
Jamaica
to
be with the applicant.
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. !d. 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. !d. at 300.
The AAO notes that
Matter
of
Marin, 16 I & N Dec. 581 (BIA 1978), involving a section 212(c)
waiver, is used in waiver cases
as
guidance for balancing favorable and unfavorable factors and this
cross application
of
standards is supported by the Board
of
Immigration Appeals (BIA). In Matter
of
Mendez-Moralez, the BIA, assessing the exercise
of
discretion under section 212(h)
of
the Act,
stated:
We find this use
of
Matter
of
Marin, supra, as a general guide
to
be appropriate.
For the most part, it is prudent to avoid cross application, as between different
types
of
relief,
of
particular principles or standards for the exercise
of
discretion. !d.
However, our reference
to
Matter
of
Marin, supra, is only for the purpose
of
the
approach taken in that case regarding the balancing
of
favorable and unfavorable
factors within the context of the relief being sought under section 212(h)(l)(B)
of
the Act. See, e.g., Palmer
v.
INS, 4 F.3d 482 (7th Cir.1993) (balancing
of
discretionary factors under section 212(h)). We find this guidance
to
be helpful and
applicable, given that both forms
of
relief address the question
of
whether aliens
with criminal records should be admitted to the United States and allowed
to
reside
in this country permanently.
Matter
of
Mendez-Moralez 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:
(b)(6)
Page 7
NON-PRECEDENT
DECISION
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).
!d. at 301.
The favorable factors
in
the present case include extreme hardship
to
the applicant's U.S. citizen
spouse as a result
of
the applicant's inadmissibility; the significant emotional and financial support
he
provides
to
his U.S. citizen spouse; the applicant's significant family ties
to
the United States,
particularly
to
his mother-in-law whom he supports financially and his own grandfather;
attestations by others
to
his good moral character and essential presence in the community; his
payment
of
taxes in the United States; and his apparent lack
of
any criminal record. The
unfavorable factors are the applicant's immigration violations, which include his
misrepresentation
of
marital status in order
to
secure a U.S. visa and admission into the United
States, and his periods of unlawful presence and unauthorized employment in the United States.
Although the applicant's violations
of
immigration law are significant, the positive factors in this
case outweigh the negative factors. Therefore, pursuant
to
section 212(i)
of
the Act, the AAO
finds that a favorable exercise
of
discretion is warranted.
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. ยง 1361. Here, that burden has been met.
ORDER: The appeal is sustained.
