212(i) Shabaj v. Holder, No. 12-703 (2nd Cir. 1-15-2013) (unpub.). plus dist crt …
212(i) waiver was denied by USCIS and that decision was upheld by AAO. A challenge12-703 was filed in District Court which wasShabaj v. Holder dismissed for lack of jurisdiction. The 2nd Circuit upheld that dismissal. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2012 (Argued: October 15, 2012 Decided: January 15, 2013) ________________________________________________________ PAULIN SHABAJ, Plaintiff-Appellant, —v.— ERIC H. HOLDER, JR., Attorney General; DEPARTMENT OF HOMELAND SECURITY; JANET NAPOLITANO, Secretary, Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; LORI SCIALABBA, Deputy Director, United States Citizenship and Immigration Services; ANDREA QUARANTILLO, District Director, New York District Office; PERRY RHEW, Chief, Administrative Appeals Office, Defendants-Appellees. Docket No. 12-703 (ag) ________________________________________________________ B e f o r e : KEARSE and KATZMANN, Circuit Judges, and GLEESON,* District Judge. _______________* The Honorable John Gleeson, of the United States District Court for the Eastern District ofNew York, sitting by designation.
Appeal from a December 21, 2011 judgment of the United States District Court for the SouthernDistrict of New York (Hellerstein, J.) dismissing Plaintiff-Appellant’s complaint for lack ofjurisdiction. We hold that the district court lacked jurisdiction to review the United StatesCitizenship and Immigration Services’ discretionary decision to deny Plaintiff-Appellant’sapplication for a waiver of inadmissibility under 8 U.S.C. § 1182(i)(1) because judicial review ofsuch decisions is available only for “constitutional claims or questions of law raised upon a petitionfor review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D). AFFIRMED. _______________ MICHAEL P. DIRAIMONDO (Marialaina L. Masi and Stacy A. Huber, on the brief), DiRaimondo & Masi LLP, Melville, N.Y., for Plaintiff-Appellant. PATRICIA L. BUCHANAN, Assistant United States Attorney (Sarah S. Normand, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, N.Y., for Defendants-Appellees. _______________PER CURIAM: Plaintiff-Appellant Paulin Shabaj (“Shabaj”) appeals from a December 21, 2011judgment of the United States District Court for the Southern District of New York (Hellerstein,J.) dismissing his complaint. The judgment was entered in accordance with a December 19,2011 order holding that the district court lacked jurisdiction to review the decision of the UnitedStates Citizenship and Immigration Services (“CIS”) to deny Shabaj’s application for a waiver ofinadmissibility pursuant to section 212(i) of the Immigration and Nationality Act (“INA”), 8U.S.C. § 1182(i) (a “212(i) waiver”). Because the plain language of the INA provides thatjudicial review of such decisions is available only for “constitutional claims or questions of lawraised upon a petition for review filed with an appropriate court of appeals,” 8 U.S.C. §1252(a)(2)(D) (emphasis added), the district court correctly determined that it lacked jurisdictionto adjudicate Shabaj’s claims. The judgment of the district court is therefore AFFIRMED. -2-
BACKGROUND Shabaj, a native and citizen of Albania, arrived in the United States in November 2000bearing a false passport of Italy. See Shabaj v. Holder, 602 F.3d 103, 104 (2d Cir. 2010).1Shabaj was detained upon arrival, and he was referred to an Immigration Judge for an asylum-only proceeding. Id. Shabaj’s attempts to obtain asylum in the United States ultimately provedunsuccessful. See generally id. at 104-06. While asylum proceedings were ongoing, Shabaj married a United States citizen in July2005. CIS concluded that Shabaj’s marriage was bona fide and approved his wife’smarriage-based visa petition (immigration form I-130), which allowed Shabaj to file anapplication for adjustment of status. However, because Shabaj had attempted to enter the UnitedStates by fraud, he was also required to file an application for a waiver of inadmissibilitypursuant to INA section 212(i), which provides that the Attorney General may, in his discretion,waive an immigrant alien’s inadmissibility if “the refusal of admission to the United States ofsuch immigrant alien would result in extreme hardship to the citizen or lawfully resident spouseor parent of such an alien.” 8 U.S.C. § 1182(i); see also Jun Min Zhang v. Gonzales, 457 F.3d172, 174 (2d Cir. 2006) (indicating that alien who has engaged in immigration fraud cannotadjust status absent a waiver of inadmissibility under INA § 212(i)). Shabaj filed two separate applications for adjustment of status and a waiver ofinadmissibility, which CIS denied in February 2007 and January 2009, respectively. On May 2,2011, CIS’s Administrative Appeals Office (“AAO”) dismissed Shabaj’s appeal, concluding that1 Citizens of Italy are eligible to enter the United States under a Visa Waiver Program that allowsindividuals from certain nations to visit the United States without a visa for up to 90 days. SeeShabaj, 602 F.3d at 104. -3-
Shabaj had failed to demonstrate that his U.S. citizen wife would suffer extreme hardship if hewere removed from the United States. On July 14, 2011, Shabaj filed the instant lawsuit in the United States District Court forthe Southern District of New York. The complaint alleged, inter alia, that CIS’s decision todeny his section 212(i) waiver application was erroneous as a matter of law. Shabaj maintainedthat his action arose under both the Immigration and Nationality Act and the AdministrativeProcedures Act (“APA”), 5 U.S.C. § 551 et seq., asserted that the district court had subjectmatter jurisdiction under 28 U.S.C. § 1331, and requested that the court “grant relief pursuant tothe APA, the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq., and 28 U.S.C.§ 1361.” Complaint ¶ 1. On December 19, 2011, the district court issued an order granting the government’smotion to dismiss the complaint and denying Shabaj’s cross-motion for judgment on thepleadings. The district court held that it did not have subject matter jurisdiction toreview CIS’s denial of Shabaj’s 212(i) waiver application because 8 U.S.C. § 1182(i)(2)expressly provides that “[n]o court shall have jurisdiction to review a decision or action of theAttorney General regarding a waiver [of inadmissibility].” 8 U.S.C. § 1182(i)(2). In reachingthis conclusion, the district court rejected Shabaj’s argument that it had jurisdiction under 8U.S.C. § 1252(a)(2)(D), because that section permits judicial review of discretionary section212(i) waivers only for “constitutional claims or questions of law raised upon a petition forreview filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D).22 The Department of Homeland Security issued a removal order against Shabaj on January 26,2009. In August of 2011, Shabaj agreed to comply with his removal order by purchasing hisown plane ticket to leave the United States, but he subsequently received an administrative stayof his removal until March 30, 2012. Following the expiration of the stay, Shabaj purchased hisown ticket and, on April 28, 2012, departed the United States pursuant to his removal order. -4-
DISCUSSION “Where a district court grants a defendant’s Rule 12(b)(1) motion to dismiss, an appellatecourt will review the district court’s factual findings for clear error and its legal conclusions denovo.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). “[A]district court may properly dismiss a case for lack of subject matter jurisdiction under Rule12(b)(1) if it lacks the statutory or constitutional power to adjudicate it.” Id. (internal quotationmarks omitted). As indicated above, Shabaj’s complaint asserts that CIS’s decision to deny him waiver ofinadmissibility under 8 U.S.C. § 1182(i)(1) was erroneous as a matter of law. However,subparagraph 2 of § 1182(i) provides that “[n]o court shall have jurisdiction to review a decisionor action of the Attorney General regarding a waiver [of inadmissibility] under paragraph (1).” 8U.S.C. § 1182(i)(2). Similarly, 8 U.S.C. § 1252 provides that with respect to denials ofdiscretionary relief, and “regardless of whether the judgment, decision, or action is made inremoval proceedings,” “no court shall have jurisdiction to review . . . any judgment regarding thegranting of relief under section [1182(i)].” 8 U.S.C. § 1252(a)(2)(B); see also Jun Min Zhang,457 F.3d at 175 (“The REAL ID Act of 2005 instructs us to treat this petition [for review of theBoard of Immigration Appeals’ determination that an alien does not satisfy the extreme-hardshipstandard of § 1182(i)(1)] as a petition for review under 8 U.S.C. § 1252.”). The § 1182(i)(1)hardship determination is discretionary, see Camara v. Dept of Homeland Sec., 497 F.3d 121,124 (2d Cir. 2007) (per curiam), and we therefore lack jurisdiction to review it unless anexception to 8 U.S.C. §1252(a)(2)(B) applies.33 See Nethagani v. Mukasey, 532 F.3d 150, 154 n.2 (2d Cir. 2008) (“We have concluded that §1252(a)(2)(B)(ii) strips our jurisdiction to review grants or denials of . . . [h]ardship waivers -5-
The exception Shabaj relies on is codified at 8 U.S.C. § 1252(a)(2)(D), which provides: Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.Shabaj argues that because his claims purportedly raise “constitutional claims or questions oflaw,” § 1252(a)(2)(D) applies and the denial of those claims is subject to judicial review. See,e.g., Sumbundu v. Holder, 602 F.3d 47, 54 (2d Cir. 2010) (noting that courts of appeals retainjurisdiction to review the agency’s hardship determinations for constitutional claims andquestions of law). Even assuming, however, that Shabaj’s complaint actually had raised “constitutionalclaims or questions of law,” Shabaj’s argument ignores the statute’s requirement that any suchclaims must be raised “upon a petition for review filed with an appropriate court of appeals.” 8U.S.C. § 1252(a)(2)(D) (emphasis added). Thus, while this court would have jurisdiction toreview any constitutional claims or questions of law raised by Shabaj in a petition for review ofCIS’s hardship determination, the district court did not.4under 8 U.S.C. § 1182(i).”); Camara, 497 F.3d at 124 (“[W]e lack jurisdiction to reviewchallenges to factual and discretionary determinations leading to the denial of a petition forreview where a jurisdiction-denying provision of the INA is implicated, unless, of course, thepetitioner raises a constitutional claim or a question of law.”).4 Indeed, this Court denied Shabaj’s petition for review of his removal order over two years ago.See Shabaj, 602 F.3d at 106. Although Shabaj is ineligible to reopen his removal proceedingsand file a petition for review because of his participation in the Visa Waiver Program, see 8U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopenproceedings from attempting to reopen those proceedings in order to raise legal challenges tohardship rulings by the AAO. Under those circumstances, as permitted by § 1252(a)(2)(D), wewould have jurisdiction over any “constitutional claims or questions of law” raised by petitionsfor review to this court. -6-
Shabaj correctly points out that at least two district courts in this Circuit have exercisedjurisdiction to review purported errors of law in CIS’s hardship determinations. See Saati v.Holder, 10 Civ. 1345 (MAD/DEP), 2011 WL 2975478 (N.D.N.Y. July 21, 2011); Chen v.Napolitano, 651 F. Supp. 2d 63 (S.D.N.Y. 2009). Those decisions, however, never addressed oracknowledged, as they should have, the limitation in § 1252(a)(2)(D) providing that petitions forreview raising constitutional claims or questions of law must be filed in the appropriate court ofappeals. Finally, relying largely on our decision in Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir.2008), Shabaj argues that jurisdiction was proper in the district court under the APA and 28U.S.C. § 1331. However, the judicial review provisions of the APA do not apply “to the extentthat . . . statutes preclude judicial review.” 5 U.S.C. § 701(a)(1). In this case, judicial review ofCIS’s hardship ruling is precluded by 8 U.S.C. § 1182(i)(2) and 8 U.S.C. § 1252(a)(2)(B).Although we held in Sharkey that 8 U.S.C. § 1252(a)(2)(B) did not strip the district court ofjurisdiction to consider Sharkey’s claims that CIS previously granted her legal permanentresident (“LPR”) status, owed her proof of that status, and unlawfully rescinded that status, ourdecision was based on the fact that none of Sharkey’s claims would “subject to judicial reviewany discretionary decision by the agency.” Sharkey, 541 F.3d at 85. Rather, the district court inthat case would “simply seek to determine what decision was made, not whether the decisionwas correct or a proper exercise of discretion.” Id; see also id. at 86 (“Section 1252(a)(2)(B)(i)does not bar the district court from deciding Sharkey’s unlawful rescission claim because theagency has a non-discretionary duty to commence rescission procedures prior to rescinding LPRstatus . . . .”); id. at 87 (“[B]ecause the agency has a non-discretionary duty to provide LPRs with -7-
proof of their status, Section 1252(a)(2)(B) does not strip the district court of jurisdiction toreview whether Sharkey is owed proof of her status.” (internal citation omitted)). In this case, bycontrast, Shabaj seeks “de novo review of [his] waiver application,” Pl.’s Br. at 5, which wouldsubject to judicial review CIS’s discretionary determination that Shabaj should not be granted awaiver of inadmissibility. Thus, Sharkey is inapplicable, and Shabaj’s claim must fail. CONCLUSION Because the district court properly concluded that it lacked jurisdiction to adjudicate thiscase, we need not consider the government’s remaining arguments that Shabaj’s removal fromthe United States renders this appeal moot and that Shabaj failed to identify any legal errors inCIS’s decision. For the reasons stated herein, the order of the district court is AFFIRMED.The court rightly limited itself to a basic argument of "jurisdiction" and STOPPED, as itshould. The best way to keep from saying the wrong thing is to keep your mouth shut. -8-
Case 1:11-cv-04871-AKH Document 15 . Filed 12/19/11 Page 1 of 3 USDCSDNYUNITED STATES DISTRICT COURT DOClME:>;TSOUTHERN DISTRICT OF NEW YORK ELECTRO:-iICALLY FILED--------.----..----------------------------------.------------- x , 1)( II , .PAULIN SHABAJ, •, " J ED: 1a.1 dlll/ ORDER GRANTING Plaintiff, DEFENDANTS MOTION TO DISMISS AND DENYING -against- PLAINTIFFS CROSS MOTION FOR JUDGMENT ON THEERIC HOLDER, ATTORNEY GENERAL OF PLEADINGSTHE UNITED STATES, et at. II Civ. 4871 (AKH) Defendants.--------------------------------------------------------------- xALVIN K. HELLERSTEIN, U.S.DJ.: Plaintiff Paulin Shabaj has challenged the May 2, 20 II United States Citizenshipand Immigration Services (CIS) decision denying his application for a waiver of inadmissibilityto the United States. Defendants have moved to dismiss this challenge for lack of subject matterjurisdiction. Because I do not have constitutional or statutory power to adjudicate this case, Igrant Defendants Motion. See Makarova v. United States of America, 210 F.3d 110, 113 (2dCir. 2000) ("A case is properly dismissed for lack of subject matter jurisdiction under Rulel2(b)( I ) when the district court lacks the statutory or constitutional power to adjudicate it.") CIS has deemed Shabaj "inadmissible" to the United States under 8 U.S.C. §I 182(a)(6)(C) because hc attempted to enter the country by fraud in 2000, PlaintiffsMemorandum at 2. Shabaj, after marrying an American citizen in July of 2005, sought a waiverof his inadmissibility under 8 U.S.C. § 1182(i)(I), which holds, "The Attorney General may, inthe discretion of the Attorney General, waive the application of c1ausc (i) of subsection (a)(6)(C)in the case of an immigrant who is the spouse ... of a United States citizen ... if it is establishedto the satisfaction of the Attorney General that the refusal of admission to the United States ofsuch immigrant alien would result in extreme hardship to the citizen ...." U.S.C. § I 182(i)(1)The Attorney General, however, after reviewing the hardship imposed on Shabajs spouse, chose I
Case 1:11-cv-04871-AKH Document 15 Filed 12/19/11 Page 2 of 3not to exercise this discretion, and denied Shabaj a waiver, an action Shabaj now challenges inthis Court. But subparagraph 2 of § 1182(i) sets out in no uncertain terms: "No court shall havejurisdiction to review a decision or action of the Attorney General regarding a waiver underparagraph (I )." 8 U.S.C. § I I 82(i)(2). Nonetheless, the Second Circuit has held that there may be times when judicialreview of a denial of certain waivers may be appropriate if there are "constitutional claims" or"questions of law" involved. See HoffiTIan das Silva v. Holder, 330 Fed. Appx. 255, 256·257(2d Cir. 2009) (unpublished opinion) ("This Court generally lacks jurisdiction to reviewdiscretionary decisions such as the denial of a waiver of removal under section 2l2(i) of the[Immigration and Nationality Act] .... However, we retain jurisdiction over constitutionalclaims and questions oflaw."); lun Min Zhang v. Gonzales, 457 F.3d 172, 175-76 (2d Cir. 2006)(finding no jurisdiction to review a waiver of inadmissibility but noting also that judicial reviewwas not appropriate because "the instant petition ... does not raise any constitutional claims orquestions of law ...."). This potential authority to review a waiver of inadmissibility as to"questions oflaw" stems from 8 U.S.C. § 1252(a)(2), subparagraphs (B) and (0). Subparagraph(B) reads: Notwithstanding any other provision oflaw (statutory or nonstatutory), ... and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no eourt shall have jurisdiction to review- (i) any judgment regarding the granting ofrelief under [1182(i)] ... 8 U.S.C. § l2S2(a)(2)(B) (emphasis added). Subparagraph (D), the exception to the lack ofjurisdiction, reads: Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions oflaw raised upon a petition for review filed with an appropriate court of appeals in accordance with this section. 2
Case 1:11-cv-04871-AKH Document 15 Filed 12/19/11 Page 3 of 38 U.S.C. § 1252(a)(2)(D) (emphasis added). It is this "question of law" exception that Shabajattempts to use to confer upon this Court judicial review of his denial of inadmissibility.Plaintiffs Memorandum at 5. However, the 12S2(a)(2)(D) exception applies to review of claims"raised upon a petition for review filed with an appropriate court ofappeals." As this Court is afederal district court, [ do not have jurisdiction over this matter. For the foregoing reasons, 8 U.S.C. § 1182(i)(2) and 8 U.S.C. § 12S2(a)(2)(B) and(D) preclude jurisdiction over Plaintiff Shabaj s claim. Therefore, Defendants Motion toDismiss is granted, and Plaintiffs Cross Motion for Judgment on the Pleadings is denied. Ibe oral argument scheduled on December 19, 2011 is canceled. The Clerk shall terminate the case. SO ORDERED.Dated: December ~ 2011 New York, New York United States District Judge 3
U.S. Department of Homeland Security 1 leted to -dentifying 1ata e ted U.S. Citizenship and Immigration Services pnwent clearly UX:~~~ Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 laWSion of petsOlWl pa Washinw.n. DC 205,9-2090 U.S. CitizenShip and Immigration Services PUBLIC COpyDATE: MAY OJ 2011 Office: FILE:IN RE: Applicant:APPLICATION: Application for Waiver of Grounds of Inadmissibility under section 212(i) of the Immigration and Nationality Act, 8 U.S.C. § I I 82(i)ON BEHALF OF APPLICANT:INSTRUCTIONS:Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documentsrelated to this matter have been returned to the office that originally decided your case. Please be advised thatany further inquiry that you might have concerning your case must be made to that office.If you believe the law was inappropriately applied by us in reaching our decision, or you have additionalinformation that you wish to have considered, you may file a motion to reconsider or a motion to reopen. Thespecific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must besubmitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion,with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filedwithin 30 days of the decision that the motion seeks to reconsider or reopen.Thank you, W _~. ~7·t ~~.,rPerry RhewChief, Administrative Appeals Office www.uscis.gov
Page 2DISCUSSION: The waiver application was denied by the District Directorand is now before the Administrative Appeals Office (AAO) on appeal. The appeal will bedismissed.The record establishes that the applicant, a native and citizen o f _ attempted to procure entryto the United States in November 2000 by presenting a photo-substituted Italian passport. Theapplicant was thus found to be inadmissible to the United States under section 212(a)(6)(C)(i) of theImmigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted toprocure entry into the United States by fraud or willful misrepresentation. The applicant does notcontest this finding of inadmissibility. Rather, he seeks a waiver of inadmissibility pursuant tosection 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside in the United States with his U.S.citizen spouse.The district director concluded that the applicant had failed to establish that extreme hardship wouldbe imposed on a qualifying relative and denied the Application for Waiver of Grounds ofInadmissibility (Form 1-601) accordingly. Decision of the District Director, dated January 26, 2009.In support of the appeal, counsel for the applicant submits a brief and referenced attachments. Theentire record was reviewed and considered in rendering this decision.Section 212(a)(6)(C) ofthe 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, in pertinent part: (1) 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 StatesI Counsel notes, on appeal, that the applicant, after presenting a photo-substituted passport, immediately requestedpolitical asylum. Brief in Support of Appeal. Pursuant to the record, the applicant attempted entry to the United Statesby presenting a photo-substituted passport. Based on the immigration officers suspicion that the passport wasfraudulent, the applicant was referred to secondary inspection. It was at that point that the applicant admitted his trueidentity and requested asylum. See Record of Sworn Statement in Administrative Proceedings, dated November 11,2000.
Page 3 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 2l2(i) ofthe Act is dependent on a showing that the bar toadmission imposes extreme hardship on a qualifYing relative, which includes the U.S. citizen orlawfully resident spouse or parent of the applicant. Hardship to the applicant can be considered onlyinsofar as it results in hardship to a qualifying relative. The applicants U.S. citizen spouse is theonly qualifYing relative in this case. If extreme hardship to a qualifYing relative is established, theapplicant is statutorily eligible for a waiver, and USeIS then assesses whether a favorable exerciseof discretion is warranted. See Matter 0/ Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).As a qualifying relative is not required to depart the United States as a consequence of an applicantsinadmissibility, two distinct factual scenarios exist should a waiver application be denied: either thequalifying relative will join the applicant to reside abroad or the qualifying relative will remain in theUnited States. Ascertaining the actual course of action that will be taken is complicated by the factthat an applicant may easily assert a plan for the qualifYing relative to relocate abroad or to remain inthe United States depending on which scenario presents the greatest prospective hardship, eventhough no intention exists to carry out the alleged plan in reality. Cf Matter o/Ige, 20 I&N Dec.880, 885 (BIA 1994) (addressing separation of minor child from both parents applying forsuspension of deportation). Thus, we interpret the statutory language of the various waiver provisionsin section 212 of the Act to require an applicant to establish extreme hardship to his or her qualifyingrelative(s) under both possible scenarios. To endure the hardship of separation when extremehardship could be avoided by joining the applicant abroad, or to endure the hardship of relocationwhen extreme hardship could be avoided by remaining in the United States, is a matter of choice andnot the result of removal or inadmissibility. As the Board of Immigration Appeals stated in Mattero/Ige: [W]e consider the critical issue ... to be whether a child would suffer extreme hardship if he accompanied his parent abroad. If, as in this case, no hardship would ensue, then the fact that the child might face hardship if left in the United States would be the result of parental choice, not the parents deportation.Id See also Matter o/Pilch, 21 I&N Dec. 627, 632-33 (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 0/ Hwang,10I&N Dec. 448,451 (BIA 1964). In Matter o/Cervantes-Gonzalez, the Board provided a list offactors it deemed relevant in determining whether an alien has established extreme hardship to aqualifYing relative. 22 I&N Dec. 560, 565 (BrA 1999). The factors include the presence of a lawfulpermanent resident or United States citizen spouse or parent in this country; the qualifYing relativesfamily ties outside the United States; the conditions in the country or countries to which the qualifYingrelative would relocate and the extent of the qualifying relatives ties in such countries; the financialimpact of departure from this country; and significant conditions of health, particularly when tied to an
Page 4unavailability 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 andemphasized that the list offactors was not exclusive. Id. at 566.The Board has also held that the common or typical results of deportation, removal andinadmissibility do not constitute extreme hardship, and has listed certain individual hardship factorsconsidered common rather than extreme. These factors include: economic disadvantage, loss ofcurrent employment, inability to maintain ones present standard of living, inability to pursue achosen profession, separation from family members, severing community ties, cultural readjustmentafter living in the United States for many years, cultural adjustment of qualifying relatives who havenever lived outside the United States, inferior economic and educational opportunities in the foreigncountry, or inferior medical facilities in the foreign country. See generally Matter 0/ Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter 0/ Pilch, 21 I&N Dec. at 631-32; Matter o/Ige, 20 I&N Dec.at 883; Matter 0/ Ngai, 19 I&N Dec. 245, 246-47 (Commr 1984); Matter 0/ Kim, 15 I&N Dec. 88,89-90 (BrA 1974); Matter a/Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).However, though hardships may not be extreme when considered abstractly or individually, theBoard has made it clear that "[r]elevant factors, though not extreme in themselves, must beconsidered in the aggregate in determining whether extreme hardship exists." Matter 0/ D-J-D-, 21I&N Dec. 381, 383 (BIA 1996) (quoting Matter o/Ige, 20 I&N Dec. at 882). The adjudicator "mustconsider the entire range of factors concerning hardship in their totality and determine whether thecombination of hardships takes the case beyond those hardships ordinarily associated withdeportation." Id.We observe that the actual hardship associated with an abstract hardship factor such as familyseparation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severitydepending on the unique circumstances of each case, as does the cumulative hardship a qualifyingrelative experiences as a result of aggregated individual hardships. See, e.g., In re Bing Chih Kaoand Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter 0/ Pilch regardinghardship faced by qualifying relatives on the basis of variations in the length of residence in theUnited States and the ability to speak the language of the country to which they would relocate).Family separation, for instance, has been found to be a common result of inadmissibility or removalin some cases. See Matter 0/Shaughnes5Y, 12 I&N Dec. at 813. Nevertheless, family ties are to beconsidered in analyzing hardship. See Matter 0/ Cervantes-Gonzalez, 22 I&N Dec. at 565-66. Thequestion of whether family separation is the ordinary result of inadmissibility or removal maydepend on the nature of family relationship considered. For example, in Matter 0/ Shaughnessy, theBoard considered the scenario of parents being separated from their soon-to-be adult son, findingthat this separation would not result in extreme hardship to the parents. Id. at 811-12; see also U. S.v. Arrieta, 224 F3d 1076, 1082 (9th Cir. 2000) ("Mr. Arrieta was not a spouse, but a son andbrother. It was evident from the record that the effect of the deportation order would be separationrather than relocation."). In Matter a/Cervantes-Gonzalez, the Board considered the scenario of therespondents spouse accompanying him to Mexico, finding that she would not experience extreme
Page 5hardship from losing "physical proximity to her family" in the United States. 22 I&N Dec. at 566-67.The decision in Cervantes-Gonzalez reflects the norm that spouses reside with one another andestablish a life together such that separating from one another is likely to result in substantialhardship. It is common for both spouses to relocate abroad if one of them is not allowed to stay inthe United States, which typically results in separation from other family members living in theUnited States. Other decisions reflect the expectation that minor children will remain with theirparents, upon whom they usually depend for financial and emotional support. See, e.g., Matter ofJge, 20 I&N Dec. at 886 ("[I]t is generally preferable for children to be brought up by theirparents."). Therefore, the most important single hardship factor may be separation, particularlywhere spouses and minor children are concerned. Salcido-Salcido, 138 F.3d at 1293 (quotingContreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983»; Cerrillo-Perez, 809 F.2d at 1422.Regardless of the type offamily relationship involved, the hardship resulting from family separationis determined based on the actual impact of separation on a qualifying relative, and all hardships mustbe considered in determining whether the combination of hardships takes the case beyond theconsequences ordinarily associated with removal or inadmissibility. Matter of O-J-O-, 21 I&N Dec.at 383. Nevertheless, though we require an applicant to show that a qualifying relative wouldexperience extreme hardship both in the event of relocation and in the event of separation, inanalyzing the latter scenario, we give considerable, if not predominant, weight to the hardship ofseparation itself, particularly in cases involving the separation of spouses from one another and/orminor children from a parent. Salcido-Salcido, 138 F.3d at 1293.The applicants U.S. citizen spouse asserts that she will suffer emotional and financial hardship wereshe to reside in the United States while the applicant relocated abroad due to his inadmissibility. In adeclaration, the applicants spouse explains that her life with the applicant is completely intertwined,and one could not survive without the other. She notes that she and the applicant share all householdresponsibilities and do everything together. In addition, the applicants spouse states that she andher husband started a business, where she is President and handlesall administrative duties while her husband is the carpenter. She contends that were the applicant torelocate abroad, the business could not exist and all that they have worked for would be destroyed.Declaration o~dated January 12,2009.In support, a psychological report has been provided Dr._notes, after a two hour interview with the applicant and his spouse, that the applicants spouse issuffering from Adjustment Disorder with anxiety and depression due to the threat of her husbandsremoval and concludes that were the applicant to relocate abroad, his wife would suffer psychologicaltrauma and hardship. Psychological Report Ph.D. dated March 23, 2008.In addition, evidence of the incorporation of as of March 10, 2008,has been submitted.
Page 6With respect to the emotional hardship referenced, although the input of any mental healthprofessional is respected and valuable, the AAO notes that the submitted report is based on a singleinterview between the applicants spouse and the psychologist. The record fails to reflect anongoing relationship between a mental health professional and the applicants spouse. Moreover,the conclusions reached in the submitted evaluation, being based on a single interview, do not reflectthe insight and elaboration commensurate with an established relationship with a psychologist,thereby rendering the psychologists findings speculative and diminishing the evaluations value to adetermination of extreme hardship. It has also not been established that the applicants spouse isunable to travel to _ t o visit the applicant on a regular basis. Going on record withoutsupporting documentary evidence is not sufficient for purposes of meeting the burden of proof inthese proceedings. Matter of SojJiei, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).As for the hardships the applicants spouse contends she will incur with respect to their business, nodocumentation has been provided establishing the current business obligations and financial viability,including profits and losses, income and expenses. Nor has it been established that without theapplicants physical presence in the United States, the business would be unable to survive and thatsuch a predicament would cause the applicants spouse extreme hardship. The AAO notes that theapplicants spouse, irrespective of her and her husbands construction business, has been !;;<lollHUH. nl"""rl since 2005 as a Sales Person, earning over $43,000. See Letter from January 9, 2009. Nor has counsel provided documentation ofthe applicants and his spouses personal income, expenses, and overall financial situation to supportthe assertion that were the business to suffer due to the applicants relocation abroad, the applicantsspouse would experience hardship. Finally, counsel has failed to establish that the applicant will beunable to obtain gainful employment in_that will permit him to assist his wife financially inthe United States should the need arise.The AAO recognizes that the applicants spouse will endure hardship as a result of long-termseparation from the applicant. However, her situation, if she remains in the United States, is typicalto individuals separated as a result of removal and does not rise to the level of extreme hardshipbased on the record. The AAO concludes that based on the evidence provided, it has not beenestablished that the applicants spouse will experience extreme hardship were she to remain in theUnited States while the applicant resides abroad due to his inadmissibility.Extreme hardship to a qualitying relative must also be established in the event that he or sheaccompanies the applicant abroad based on the denial of the applicants waiver request. In adeclaration, the applicants spouse explains that she was born in the United States and her parentsand three siblings reside in _ and were she to relocate abroad, she would suffer hardshipdue to long-term separation from her family. She further explains that she visited _ beforeand cannot imagine living there. She references the substandard economy and the inability to obtaingainful employment in her area of expertise. Supra at 1-2. notes that the applicantsspouse does not read or speak _ Supra at 6.
Page 7The record reflects that the applicants U.S. citizen spouse, born and raised in the United States,would be relocating to a country to which she is not familiar. She would be unable to communicateas she does not speak the language. She would have to leave her support network of family, friends,her community and her long-term gainful employment, thereby causing her career and professionaldisruption. She would also be concerned about the substandard economy and its impact on herquality of living. 2 It has thus been established that the applicants spouse would suffer extremehardship were she to relocate abroad to reside with the applicant due to his inadmissibility.A review of the documentation in the record, when considered in its totality, reflects that theapplicant has failed to show that his U.S. citizen spouse would suffer extreme hardship if he wereremoved from the United States. The record demonstrates that the applicants spouse faces nogreater hardship than the unfortunate, but expected, disruptions, inconveniences, and difficultiesarising whenever a spouse is removed from the United States or refused admission. Having foundthe applicant statutorily ineligible for relief, no purpose would be served in discussing whether theapplicant merits a waiver as a matter of discretion.In proceedings for application for waiver of grounds of inadmissibility under section 2l2(i) of theAct, the burden of proving eligibility remains entirely with the applicant. Section 291 of the Act, 8U.S.C. § 1361. Here, the applicant has not met that burden. Accordingly, the appeal will bedismissed.ORDER: The appeal is dismissed. The waiver application is denied.2The U.S. Department of State confirms that per capita income is among the lowest in Europe. CountrySpecific Information-Albania, u.s. Department of State, dated January 28, 2011.