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i
Non-Precedent Decisions 1
ADMINISTRATIVE APPEALS OFFICE
U.S. CITIZENSHIP AND IMMIGRATION SERVICES
DEPARTMENT OF HOMELAND...
ii
Matter of M-D-M-, ID# n/a (AAO DEC122013_02H5212) I-601 Sustained3
1. The Field Office Director (El Paso) concluded tha...
iii
Cases Cited in this AAO Non-Precedent Decision
1. Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996)
2. Matter of Hw...
U.S. Citizenship
and Immigration
Services
MATTER OF M-D-M-
APPEAL OF EL PASO FIELD OFFICE DECISION
Non-Precedent Decision ...
Matter of M-D-M-
Section 212(a)(9) ofthe Act states, in pertinent part:
(A) Certain aliens previously removed.-
(i) Arrivi...
(b)(6)
Matter of M-D-M-
(II) has been ordered removed under section 235(b)(l),
section 240, or any other provision of law,...
Matter of M-D-M-
discretion related to the adjudication of the Form 1-601. There is no documentation of record
indicating ...
(b)(6)
DATE: DEC 122013 Office: EL PASO
IN RE: Applicant:
(]:~: l)ep~artm.eotoflfcimelan!f secu.rity
U.S. Citizenship and ...
(b)(6)
NON-PiiECEDENTDECISION
DISCUSSION: The waiver application was del)ied by th.e Fi~lct Office Pirector, _El Paso~ Te!...
(b)(6)
NON-PREC£1)£NT DECiSION
Page3
Section 212(a)(9)of the fct provides, in pertinent part:
(B) Aliens Unlawfully Presen...
(b)(6)
NON-PRECEDENT DECISION
Page4
· tb~ AAO will not determine whether the applicant is also inadmissible under section
...
(b)(6)
NON-PRECEDENTDECISION
Page5
combination of hardships takes the case beyond those hardships ordinarily associated wi...
(b)(6)
NON-PRECEDENT DECISION
Page6
specifically Ciudad Ju,cue~, wbere the appljccmt is residing, should be deferred. Said...
(b)(6)
NON~PRECEDENT DECISION
Page7
See Matter ofMendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). The AAO must then "balan...
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Matter of M-D-M- I-601 and I-212 SUSTAINED with SYLLABUS

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Matter of M-D-M- I-601 and I-212 SUSTAINED with SYLLABUS

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Matter of M-D-M- I-601 and I-212 SUSTAINED with SYLLABUS

  1. 1. i Non-Precedent Decisions 1 ADMINISTRATIVE APPEALS OFFICE U.S. CITIZENSHIP AND IMMIGRATION SERVICES DEPARTMENT OF HOMELAND SECURITY Matter of M-D-M-, ID# 15197 (AAO Mar. 3, 2016) - I-212 Sustained2 1. The record reflects that in 2009, the Applicant applied for admission into United States using an expired border crossing card, and was found to be inadmissible under section 212(a)(7)(A)(i)(I) of the Act, 8 U.S.C § 1182 (a)(7)(A)(i)(I). On the same date, the Applicant was expeditiously removed to Mexico, and barred for a period of 5 years under section 235(b)(1) of the Act, 8 U.S.C. § 1225(b)(1). 2. In 2010, the Applicant applied for admission into the United States, and presented a DSP-150, B1/B2 visitor visa card, bearing the identity of another individual. The Applicant was found to be inadmissible pursuant to sections 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of the Act, for attempting to enter the United States by fraud and being an immigrant without valid documentation. On the same date, the Applicant was again expeditiously removed under section 235(b)(1) of the Act and barred for a period of 20 years. 3. AAO found that the Applicant was not inadmissible under section 212(a)(9)(C)(i)(II) of the Act because the Applicant did not attempt to enter the United States without admission. Instead, on 2010, she presented herself at the port of entry for inspection, and attempted to procure admission with another individual's nonimmigrant visa. However, the Applicant remained inadmissible pursuant to section 212(a)(9)(A)(i) of the Act, 8 U.S.C. § 1182(a)(9)(A)(i), due to her subsequent removal in 2010. 4. In examining the record to determine if the Applicant qualified for a waiver under section 212(a)(9)(A) of the Act, AAO relied on its decision of December 12, 2013, relating to the adjudication of the Form I-601 (see below), where they found that the Applicant had established that extreme hardship would be imposed on her qualifying relative (her spouse). The appeal of the denial of the Form I-601 was sustained, and her Form I-601 was approved. 5. A grant of permission to reapply for admission is a discretionary decision based on the weighing of negative and positive factors. AAO found that the Applicant warranted a favorable exercise of discretion related to the adjudication of the Form I-601 (waiver under (212(i)). Finding no error or reason to overturn the earlier decision AAO found that the Applicant's Form I-212 should also be granted as a matter of discretion. 1 This potential “holdings” list/Syllabus is not an official USCIS-AAO work product. It is merely a suggestion provided for the convenience of the reader. 2 https://www.uscis.gov/sites/default/files/err/H4%20- %20Application%20for%20Reentry%20after%20Removal%20or%20Aggravated%20Felony%20Convicti on%20- %20212(a)(9)(A)(iii),%20212(a)(9)(B)(v),%20212(d)(3)(A)/Decisions_Issued_in_2016/MAR032016_01 H4212.pdf
  2. 2. ii Matter of M-D-M-, ID# n/a (AAO DEC122013_02H5212) I-601 Sustained3 1. The Field Office Director (El Paso) concluded that the applicant had failed to establish that extreme hardship would be imposed on a qualifying relative (her U.S. citizen spouse who would also become the sole caretaker of their children, born in 2007, 2009 and 2012, respectively) and denied the Form I-601, Application for Waiver of Grounds of Inadmissibility, accordingly, as per the Decision of the Field Office Director, dated March 15, 2013. 2. In August 2010, the applicant attempted to procure entry to the United States with a Border Crossing Card that did not belong to her. She was subsequently removed on September 16, 2010. The applicant was consequently inadmissible to the United States under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted to procure entry to the United States by fraud or willful misrepresentation. 3. The Applicant was convicted on September 15, 2010, of Illegal Reentry and False Personation in Immigration Matters, in the United States District Court, Western District of Texas, El Paso Division. The issue of whether or not this conviction is for a crime involving moral turpitude (CIMT) rendering the applicant inadmissible under section 212(a)(2)(A)(i)(I) of the Act [8 U.S.C. § 1182(a)(2)(A)(i)(I)] need not be addressed because it was not relevant to the outcome of this case. 4. Because the applicant was inadmissible under section 212(a)(6)(C)(i) of the Act for fraud or willful misrepresentation, and had already demonstrated eligibility for a waiver under section 212(i) [8 U.S.C. § 1182(i)], there is no need to ponder whether the crime of conviction is a CIMT or not because the 212(i) waiver also satisfies the requirements for a waiver of criminal grounds of inadmissibility under section 212.(h) [8 U.S.C. § 1182(h)]. 5. 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 U.S. citizen spouse is the only qualifying relative in this case. Hardship to the applicant or the children can be considered only insofar as it results in hardship to a qualifying relative. 6. AAO found the requisite extreme hardship to the citizen spouse under 212(i) and in weighing the evidence determined that a favorable exercise of discretion was warranted. 3 https://www.uscis.gov/sites/default/files/err/H5%20-%20Waiver%20of%20Inadmissibility%20- %20Misrepresentation%20-%20212%20(i)/Decisions_Issued_in_2013/DEC122013_02H5212.pdf
  3. 3. iii Cases Cited in this AAO Non-Precedent Decision 1. Matter of Mendez-Moralez, 21 I&N Dec. 296 (BIA 1996) 2. Matter of Hwang, 10 I&N Dec. 448 (BIA 1964) 3. Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999) 4. Matter of Pilch, 21 I&N Dec. 627, (BIA 1996) 5. Matter of Ige, 20 I&N Dec. 880 (BIA 1994) 6. Matter of Ngai, 19 I&N Dec. 245 (Comm'r 1984) 7. Matter of Kim, 15 I&N Dec. 88 (BIA 1974) 8. Matter of Shaughnessy, 12 I&N Dec. 810 (BIA 1968) 9. Matter of O-J-O-, 21 I&N Dec. 381 (BIA 1996) 10. Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45 (BIA 2001) 11. Salcido-Salcido v. I.N.S., 138 F.3d 1292 (9th Cir. 1998) 12. Contreras-Buenfil v. INS, 712 F.2d 401 (9th Cir. 1983) 13. Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957) “In evaluating whether ... relief is warranted if 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).”
  4. 4. U.S. Citizenship and Immigration Services MATTER OF M-D-M- APPEAL OF EL PASO FIELD OFFICE DECISION Non-Precedent Decision of the Administrative Appeals Office DATE: MAR. 3, 2016 APPLICATION: FORM I-212, APPLICATION FOR PERMISSION TO REAPPLY FOR ADMISSION INTO THE UNITED STATES AFTER DEPORTATION OR REMOVAL The Applicant, a native and citizen of Mexico, seeks permission to reapply for admission into the United States. See Immigration and Nationality Act (the Act) § 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii). The Field Office Director, El Paso, Texas, denied the application. The matter is now before us on appeal. The appeal will be sustained. The Applicant was found to be inadmissible to the United States pursuant to section 212(a)(9)(C)(i)(II) of the Act, 8 U.S.C. § 1182(a)(9)(C)(i)(II), for illegally reentering the United States after having been ordered removed. The Applicant seeks permission to reapply for admission into the United States under section 212(a)(9)(C)(ii) of the Act in order to reside with her U.S. citizen spouse and children. On March 13, 2015, the Director denied the application because it was determined that the Applicant was not eligible for an exception under section 212(a)(9)(C)(ii) of the Act as she had not resided outside the United States for ten years from the date ofher last departure. On appeal, the Applicant requests that her application be approved as her family is suffering from extreme hardship and depression due to her absence. The record includes, but is not limited to: a statement and a sworn affidavit from the Applicant's spouse; a letter of support from a teacher of the Applicant's son; medical records for the Applicant's spouse, son and mother; copies of her, her spouse's, and her children's birth certificates; a copy of our decision of December 12, 2013, sustaining the appeal of her Form I-601, Application for Waiver of Grounds of Inadmissibility; documentation relating to the approval of her Form I-601; and documentation relating to Applicant's removal proceedings. The record also contains letters of support from one ofthe Applicant's children and an acquaintance. However, these letters will not be considered in this proceeding as the letter from the acquaintance was not signed, and the child's letter was submitted without the English translation as required by 8 C.F.R. 103.2(b)(3). The entire record was reviewed and the remaining evidence was considered in rendering this decision.
  5. 5. Matter of M-D-M- Section 212(a)(9) ofthe Act states, in pertinent part: (A) Certain aliens previously removed.- (i) Arriving aliens.- Any alien who has been ordered removed under section 235(b)(l) or at the end of proceedings under section 240 initiated upon the alien's arrival in the United States and who again seeks admission within five years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. (ii) Other aliens.-Any alien not described in clause (i) who- (I) has been ordered removed under section 240 or any other provision of law, or (II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible. (iii) Exception.- Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the alien's reembarkation at a place outside the United States or attempt to be admitted from foreign contiguous territory, the Attorney General [now Secretary of the Department of Homeland Security] has consented to the alien's reapplying for admission. (C) Aliens unlawfully present after previous immigration violations.- (i) In generaL-Any alien who- (I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or 2
  6. 6. (b)(6) Matter of M-D-M- (II) has been ordered removed under section 235(b)(l), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible. (ii) Exception.- Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last depmiure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary has consented to the alien's reapplying for admission. The record reflects that on 2009, the Applicant applied for admission into United States using an expired border crossing card, and was found to be inadmissible under section 212(a)(7)(A)(i)(I) ofthe Act, 8 U.S.C § 1182 (a)(7)(A)(i)(I). On the same date, the Applicant was expeditiously removed for a period of 5 years under section 235(b)(l) of the Act, 8 U.S.C. § 1225(b)(1 ), to Mexico. On , 2010, the Applicant applied for admission into the United States, and presented a DSP-150, B1/B2 visitor visa card, bearing the identity of another individual. The Applicant was found to be inadmissible pursuant to sections 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I) of the Act, for attempting to enter the United States by fraud and being an immigrant without valid documentation. On 2010, the Applicant was expeditiously removed under section 23S(b)(1) ofthe Act to Mexico for a period of 20 years. We find the Applicant not to be inadmissible under section 212(a)(9)(C)(i)(II) of the Act as the Applicant did not attempt to enter the United States without admission. Instead, on 2010, the Applicant presented herself at the port of entry for inspection, and attempted to procure admission with another individual's nonimmigrant visa. However, the Applicant remains inadmissible pursuant to section 212(a)(9)(A)(i) of the Act, 8 U.S.C. § 1182(a)(9)(A)(i), due to her subsequent removal on 2010. Accordingly, we will withdraw the Director's finding with regard to section 212(a)(9)(C) of the Act and examine the record to determine if the Applicant qualifies for a waiver under section 212(a)(9)(A) ofthe Act. In our decision of December 12, 2013, relating to the adjudication of the Form I-601 , we found that the Applicant had established that extreme hardship would be imposed on her qualifying relative. The appeal of the denial of the Form I-601 was sustained, and her Form I-601 was approved. Nevertheless, as discussed above the Applicant remains inadmissible under section 212(a)(9)(A) of the Act, based on her removal from the United States, and must obtain permission to reapply for admission. A grant of permission to reapply for admission is a discretionary decision based on the weighing of negative and positive factors. We found that the Applicant warranted a favorable exercise of 3
  7. 7. Matter of M-D-M- discretion related to the adjudication of the Form 1-601. There is no documentation of record indicating our finding was then in error or should be subsequently overturned. As such, for the reasons stated in that decision, we find that the Applicant's Form 1-212 should also be granted as a matter of discretion. In application proceedings, it is the Applicant's burden to establish eligibility for the immigration benefit sought. Section 291 ofthe Act, 8 U.S.C. § 1361. Here, that burden has been met. ORDER: The appeal is sustained. Cite as Matter ofM-D-M-, ID# 15197 (AAO Mar. 3, 2016) 4
  8. 8. (b)(6) DATE: DEC 122013 Office: EL PASO IN RE: Applicant: (]:~: l)ep~artm.eotoflfcimelan!f secu.rity U.S. Citizenship and Immigration Services Administr~ttive Appeals Office (AAO) 20 Massachuset~ Ave., N.W., M!i 2090 Washing,t,o.n, pc 205~9-J090 U.S. Litlzensmp and Immigration. Services FILE: APPLICATION: Application for Waiver of Grounds of Inadmissibility under sec~ion 212(i), 8 U.S.C. § 1182(i) ON BEHALF OF APPLICANT: SELF~REPRESENTED. INSTJtUc:nONS: 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 Mt establ_ish agency poli¢y through non.,.precedent deci~ions. Th~nkyou, · tr ·~i*L . .''L, Ron Rosenberg Chief, Administrative Appeals Office ww:w.uscts;gov ''
  9. 9. (b)(6) NON-PiiECEDENTDECISION DISCUSSION: The waiver application was del)ied by th.e Fi~lct Office Pirector, _El Paso~ Te!;!C(,!S, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained, The record establishes that the a..pplicq_pJ· is a l)ative _Cllld cit~ep of Mexico who W(}.S found inadmiSsible to the United, States under section 212(a)(6)(C)(i) of the ImmigratioQ and Na..tiona..Uty Act (the Act), 8 U.S.C. § .1182(a)(6)(C)(i), for .having attempted t() procure a visa, other documentation; or a..dmis_sioQ into the United States by fraud or willful ·misrepresentation. the applicant seeks a waiver of inadmissibility in order to re.sjde in the UIJi.ted Sta,tes with her U.S. citizen spouse and.children, born hi 2007, 2009 and 2012. The field office director conclud.ed tbat t_he applicant had failed to establish that extreme hardship · would be imposed oii a qualifying relative and denied the Foflll 1~601, Application for Waiver of Gr,ol.in9s of Jnadmissibility, accordingly. Decision of the Field Office Director, dated Ma,tch 15, 2013. ln support of the appeal the applicant submits the following: a statement ftom the applicant's spouse, financial docu.meu.Ja..tioll., medical and mental .health documentatjon pertaining to the· applicant's Spouse, biographic · docum.ent.a..tiop pertai11ing to the appliC(}l)t's three U.S. citizen children, and photographs of the applicant and her family. The entire record was reviewed and considered in r~pdering. this decision. · · Section 212(a)(6)(C) of the Act provides, in pertinent part: . . . (i) Any aUeiJ w)lo, by .fraud or willfully misrepresenting a material fact, seeks to prOcure (dr has SQUght lO procure or has prO(llifeQ) a vi_S(l, other documentation, or admission into the United States or other beQefH provided · under this Act is inadmissible! . (iii) Waiver authorized. __: .For provision authorizing waiver,of cla1;lse (i), see subsection (i). Section 212(i).of the Act provides: (1) The Attorney General may, in the discretion of the Attorney General, waive the appJicqtioll of ~la,use (i) of subsection (a)(6)(C)in the case ofan inimigrant who is the spouse, son, or daughter of a Uoit¢d·States ~itizen or of aA alien la..wfu..lly ad.Ipjtted for permanent residence, if it is eStabliShed to the satisfaction of the Attorney General thqt the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citiZen or lawfully residen.t spouse or p:are11t of su.cb an alien ...
  10. 10. (b)(6) NON-PREC£1)£NT DECiSION Page3 Section 212(a)(9)of the fct provides, in pertinent part: (B) Aliens Unlawfully Present.- (i) In generaL .,. Any alien (other than an alien lawfu_lly admitted for permanent residence) who- (I) , was unlawfully present in the United States for a period of more than 180 days but less than 1 year...@cl again seeks admission within 3 years ofthe date of such alien's departure or removal, or (II) has been unlawfully present in the Uwteci Stat~~ for one year ot more, and who again seeks lidmission within 10 years of the date of such alien's departure or rem_oval from t_be Unitecl 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 cia~gb.ter of a Unite(~ St_ates 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 su_ch immigrant alien wol!ld result ii_1 e~treme hardship to the citizen or lawfully resident spouse or parent ofsuch alien... Regarding the field office director's fin(lip.g that the applicant is inadmissible under section 212(a)(6)(C)(i) of the Act for fn.1.1iq or willful misrepresentation, the record establishes that in August 2010, the applicant attempted to procure entry to the United States With a Border Crossing Ca,rd that did not belong to her. She was subsequently removed on September 16, 2010. The applicant is consequently inadro.is~ible to the United States under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), fo.t having attempted to procure entry to the United States by fraud or willful misrepresentation; Ort appeal, the applicant does not contest this finding of inad_missibUity. Further, the record establis_hes that the applicant was convicted on September 15, 2010 of Illegal Re- entry and False Personation in Immigration Matters in the United States District Court, Western District of Texas, El Paso Division. The issue of whether or not this conviction is for a. crime involving moral tuipitude rendering the applicant inadmissible l!nder section 212(a)(Z)(A)(i)(I) of the Act has not been addressed. Nevertheless, because the applicant is inadmissible under section 212(a)(6)(C)(i) of the Act apd demonstrating eligibility for a waiver under section 212(i) also satisfies the requirements for a waiver of criminal grounds of inadmissibility under section 212(h),
  11. 11. (b)(6) NON-PRECEDENT DECISION Page4 · tb~ AAO will not determine whether the applicant is also inadmissible under section 212(a)(2)(A)(i)(I) of t_he Act Awaiver ofinadmissibility under section 212(i) of the Act is dependent on a showing that the bar to admission hnpos~s extr~me hardshjp on a·qualifyi11g relative, which includes the U.S. citizeJ} or lawfully resident spouse or patent of the applicant The applicant's U.S~ citizen spouse is the only qualifying relative·in this case. Hardship to the applicant or the children can be considered only insofar as it res~lts in b.ard$hip to a qual_ifyip.g relative. If extreme hardship to a qualifying relative is established, the applicant is statutorily eligible for a waiver, and USCIS then assesses whether a favorable exercise of discretion is warranted. See Matter ofMendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). Expoeme hardship is "not a definable term of fixed and inflexible content or meaning," but "necessarily depend~ ~POll the facts ~d circumstances peculiar to each case.'' Matter of Hwang, 10 I&N Dec. 448, 451 (BIA 1964). In Ma.tter of Cervantes~ollZlllez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 42 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spolise or p1:1rent ip. this coootry; the q"®iifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties in such countries; the financial impact of departUre from this country; and significant conditio~~$ of bealt_h, partiet1larly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate, ld. 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 excl~sive. /d. at ~66. The Board has also held that the common or typiCal results of removal and inadmissibility do not constitute extreme hardship; a11d bas listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, ip.ability to maintain one's present standard Of liVing, inability to pursue a chosen profession, sep~atiop from family members, severing community ties, cultural readjustment after living in the United States for many years, Cl.Jltura1 aqjustn.tent of qualifying relatives who have never lived outside the United States, inferior economic and educational opport~nit.ies in the foreign couP-try, or inferi.or medical facilities in the foreign country. See generally Matter of Ce.tvantes-Gonzalez, 22 ' I&N Dec. at.568; MqtterofPilch, 21 I&N Dec. 627,632-33 (BIA 1996); Matter ofIge, 20 I&N Dec. 880, 883 (BIA 1994); Mqtter ofNgai, 19 I&N Dec. 245, 246-47 (Comm'r 1984); Matter ofKim, 15 I&N Dec. 88, 89'-90 (BIA 1974); Matter ofShq.~,tghnessy, 12 I&N Dec. 810,813 (BIA 1968). How~ver, tho~gb l)C!fdships may not be extreme when considered abstractly or individually, the Board has made it clear that "[r]elevant factors, though not extreme in themselves, rn:ust be considered ill the aggregate in determining whether extreme hardship exists." Matter ofO-J-0-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter ofIge, 20 I&N Dec. at 882). The adjudicator "must consider the entire range of factors concerning hardship in their totality and determine whether the
  12. 12. (b)(6) NON-PRECEDENTDECISION Page5 combination of hardships takes the case beyond those hardships ordinarily associated with deportation." Id. The actual hardship associated with an abstract hardshjp 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 individu_al ha.rdships. See, e.g, Matter of8ing Chih Kao and Mei TszJi Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter ofPilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to spea]{ t.be language of the cou11try to which they would relocate). For exrun.ple, though faii!ily 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 considerillg h~dship in the aggiegate. See Salcido-Salcido v. l.N.S., 138 F.3d 1292, 1293 (9th Cir.l998) (quoting Contreras-8uenfil v. INS, 712 F.Zd 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 ~nflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years). Therefore, we co11sider the totality of the cirC1lmstances in determining whether denial of admission would result in extreme hardship to a qualifying relative. The applicant's U.S. citizen spouse asserts that he will suffer emotion.al and fjnancial hardship were he to remain in the United States while the applicant continues to reside abroad due to her inadmissibility. In a declaration he explains that as a result of having to care for his three young children on his OWil, he is not able to keep his work schedule and. is thus unable to make ends meet. He notes that he has had to obtain assistance. from the state in· the form of food stamps to provide meals for his children. In addition, the applicant's spouse explains that as a result of the emotional distress he is experiencing due to long"'term separation from his wife, he was diagnosed with shingles, he has been prescribed antidepressants, and his diabetes has worsened, leading to several visits to the emergency room. Finally, the applicant's spouse maintains that he is worried and fearful that his wife is in danger in. Ciudad Juarez, Mexico. He notes that when he and the children gO visit the applicant, he is worried and fearful because he .feels that he 'is putting his children's security at risk. He concludes that sin~e his wife's deportation, he has not had peace of miiJ.d. Lf!tter from dated July 10, 2013. II) support, financial documentation has been provided establishing that the applicant's spouse's adjusted gross income in 2012 was $4,292,. In addition, evidence has· been provided establishing that_ the applicant's spouse has sought food stamps assistance fmm the Income Support Division in Las Cruces, New Mexico on a monthly basis since July 2012. Moreover, medical documentation has been provided establishing that theapplic@t's spouse was treated for shingles jn JUile 2013 aiJd was prescribed Amitriptyline, an antidepressant. Further, evidence that the applicant's spouse is being treated for hyperglycemia has been provided. Moreover, the applicant's spouse has provided evidence of his son's numerous medical visits in support of his assertion that being a primary caregiver to his children is causing him to miss work. Finally, the AAO notes that a travel advisory has been issued to aU U.S. citizens noting that all non-essential t_ravel to tbe State of Chibuab~a,
  13. 13. (b)(6) NON-PRECEDENT DECISION Page6 specifically Ciudad Ju,cue~, wbere the appljccmt is residing, should be deferred. Said warning a..lso references that Ciudad Juarez has one of the highest homicide rates in Mexico. See Travel Warning• Meyico, U.S. _Department of State, dated July 12, 2013. The reeotd reflects that the cumulative effectof the emotional cmd fincmcial hardship tb~ (!pplicant's spouse is ex~nencing to the applicant's inadmissibly rises to the level ofextreme. The AAO thus concludesthat were the applicant unable to re$ide in the United States due to her inadmissibility, the applicant's spouse would suffer extreme hardship if he remaiD.s in the United States. · · · · With respect to relocating abroad to reside with the applicant as a result of his inadmissibility, the record reflects that the a.pplica11t's spouse was born and raised in the United States. He has no ties to Mexico. Further, as noted above, the U.S. Department of State has issued a travel wa.ming for Mexico specifically referencing Ciudad Juarez, the applicant's current residence, due to the high rates of crime and violence. It ha$ thus been established that the applicant's spouse would suffer · extreme·hardship Were he to relocate abroad to reside with the applica.nt gue to his i11admissibi_lity. · A review of the documentation in the record, when considered in its totality, reflects that· the applicant has established that her U.S. citizen spouse would suffer extreme hardship were the applicant unable to reside in the United States. Aceordingly, the AAO finds that the situa.tion presented in this a.ppliC(ltlon rises to the level of extreme hardship. However, the grant or denial of the waiver does not tu_rn only on the issue of the meaning of "extreme hardship.'' It aiso hinges on the discretion of the Secteraty and pursuant to s_uch tem1s, conditions and procedures as she may by r~gulatiol1$ prescribe. In discretionary matters, the alien bears the burden Of proving eligibility in terins of equities in the United Stat_es which are not outweighed by adverse factors: See Matter ofT- S-Y-; 7 I&N Dec.582 (BIA 1957). In evaluating whether ... relief is warrcmted ip. the exercise of discretion, the· factpts adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of tbis country's immigration laws, the existence of a criminal record, and if so, its natt.~re a.nd serious11ess, a.nd the presence of other evidence indicative of the alien's bad character or undesirability as a permanent resident of this country. The favorable rortsidenitions 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 a.nd deported, service in this country's Arined Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the cominunity; evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien's good character (e.g., affidavits from family, fri~nds and responsible co111munity represeJl{atives).
  14. 14. (b)(6) NON~PRECEDENT DECISION Page7 See Matter ofMendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). The AAO must then "balance the· advers.e factors ·evidencing a.n alien's. undesirability as a .permanent resident with the social and hillmme considerations presented on the alien's behalf to determine whether the grant of reliefin the exercise of discretion appears to be in the best interests of the country.i• Id.· at 300. (Citations omitted)..· . The favorable factors in this matter are the extreme hardship the applicant's U.$. citizen spouse and three you.ng children wot~ld {ace if the applicCJ,nt were tp remain in Mexico/ regardless of whether they accompanied the applicant or stayed in the United States and c9Iiiifiunity ties. The unfavorable factors in this matter are the applicant's periods of unlawful presence and unauthorized employment while in the United States, fraud o_r willful misrepresentation as outlined in detail above, her conviction in 2010, and her removals from the United States in June 2009 and.Augtist 2010. The violations committed by tbe eipplic;:~;n_t are serious in natt~re and cannot be condoned. Nonetheless, the AAO finds that the applicant has established that the favorable factors in her applfcation outweigh the unfavorable factors. Therefore, a favorable exercise of the Secretary's 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. § 1361, Here, thCJ,t burden bas been met QlU>ER: The appeal is sustained.

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