AAO Grants I-601 Unlawful Presence Waiver
11/02/2010
DISCUSSION: The waiver application was denied by the Acting District Director, Mexico City, Mexico, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained and the waiver application will be approved.
The record reflects that the application, a native and citizen of Venezuela, entered the United States without authorization in August 2003 and did not depart the United States until June 2007. The applicant is thus inadmissible to the United States pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act). 8 U.S.C.§ 1182(a)(9)(H)(i)(II), for having been unlawfully present in the United States for more than one year. The applicant seeks a waiver of inadmissibility in order to reside in the United States with his U.S. citizen spouse and child, born in 2005.
The acting district director concluded that the applicant had failed to establish that extreme hardship would be imposed on a qualifying relative and denied the Application for Waiver of Grounds of Excludability (Form 1-601) accordingly Decision of the Acting District Director, dated February 11, 2008.
On appeal, counsel for the applicant submits brief, dated March 12, 2008, and referenced exhibits. In addition, on June 5. 2009, the AAO reviewed a follow-up letter from the applicant's spouse dated May 29. 2009. The entire record was reviewed and considered in rendering this decision.
Section 212Ia)(9)1 H)(i)(ll) of the Act provides, in pertinent part:
(B) Aliens Unlawfully Present
(i) In general- Any alien (other than an alien lawfully admitted for permanent residence) who-
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States is inadmissible.
(v) Waiver - The Attorney General [now the Secretary of Homeland Security (Secretary)] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son of daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General (Secretary) that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien...
In Matter of Cervantes-Gonzadez, 22 I&N Dec. 560. 565-66 (BlA 1999) the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists. In each case, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardship, takes the case beyond those hardships ordinarily associated with deportation, Matter O-J-O-. 21 I&N Dec. 381. 383 (BIA 1996)(Citations omitted).
Section 212(3)(9)(B)(v) of the Act provides that a waiver under section 212(a)(9)(B)(i)(II) of the Act is applicable solely where the applicant establishes extreme hardship to his or her citizen or lawfully resident spouse or parent. Unlike waivers under section 2l2(h) of the Act, section 212(a)(9)(I3)(v) does not mention extreme hardship to a United States citizen or lawful permanent resident child. Nor is extreme hardship to the applicant himself a permissible consideration under the statute. In the present case, the applicant's U.S. citizen spouse is the only qualifying relative, and hardship to the applicant or their child cannot be considered, except as it may affect the applicant's spouse.
The applicant must first establish that his U.S. citizen spouse would suffer extreme hardship were she to remain in the United States while the applicant resides abroad due to his inadmissibility. With respect to this criteria, the applicant's spouse contends that she will suffer emotional and financial hardship. In a declaration she states that she is suffering depression due to her spouse's absence. In addition, she notes that prior to her husband's departure, he would work nights and care for their child during the day, but since his departure, she is the sole caregiver for her child and such a predicament is causing her hardship. Finally, the applicant's spouse asserts that prior to her husband's departure, he was financially assisting the household but since he left the United States, she has been forced to move out of her apartment as she is unable to afford the monthly payments on her own, and reside with her parents. Due to an interest rate modification and the economic crisis, her parents' home is at risk of foreclosure, thereby putting her and her child in extreme hardship as they will have to find affordable alternative living accommodations. Affidavit of XXX dated March 12, 2008.
In support of the emotional hardship referenced, mental health documentation has been submitted, establishing the applicant's spouse diagnosis of depression, her need for antidepressants, and the recommendation that the applicant's spouse excused from work due to her present impairment in functioning. Letter from XXX Ph. D., Clinical Psychologist, Kaiser Permanente Fremont dated November 5, 2()07. Psychological Evaluation of XXX Psy.D, dated February 21, 2008, and Letter from XXX Psy.D, dated March 7, 2008. As for the financial hardship referenced, counsel has provided documentation confirming the applicant's spouse's parents' increased monthly house payments clue to an interest rate adjustment, and their current debt of $18, 148.16 on the home, which may lead to foreclosure. In addition, the record establishes the applicant's financial contributions to the household prior to his departure from the United States, to support the assertion that the applicant's contributions. See Form (G-325A. Biographic Information for XXX dated June 25, 2007. Finally, a letter has been provided from the applicant's spouse's parents, confirming their daughter and grandson's dependence on them for financial and emotional support since the applicant's departure from the United States. Letter from XXX.
The record reflects that the cumulative effect of the emotional and financial hardships the applicant's spouse is experiencing due to her husband's inadmissibly rises to the level of extreme. The AAO thus concludes that were the applicant unable to reside in the United States due to his inadmissibility, the applicant's spouse would suffer extreme hardship.
Extreme hardship to a qualifying relative must also be established in the event that he or she accompanies the applicant abroad based on the denial on the applicant's waiver request. With respect to this criteria, the applicant spouse references the problematic country conditions in Venezuela, including crime and violence, economic woes and a substandard quality of living. She asserts that her spouse's thirteen year old sister was recently abducted and ultimately found in another town. She further notes that her spouse has been unable to find a job since arriving in Venezuela. Moreover, the applicant's spouse contends that there is no drinking water, conditions are unsanitary, and basic supplies, like milk and rice are unavailable. Due to the problematic health conditions noted, her son was ill with diarrhea and dehydration and had to visit a medical clinic three times in one month while in Venezuela, Supra at 2-3. Finally, the applicant's spouse references the hardships she would face leaving her county, her family, including her mother, her father and her four long-term gainful employment, her community and her church. Affidavit of XXX dated June 25, 2007.
In support, counsel has provided extensive documentation regarding the problematic country conditions in Venezuela. In addition, a medical report has been provided confirming the applicant's child's three separate visits to a clinic while in Venezuela due to acute diarrhea, vomiting and inflammation of the lymph nodes. Medical Report and Translation from XXX dated January 7, 2008. Finally, the AAO notes that the U.S. Department of State corroborates the concerns raised by the applicant's spouse with respect to the problematic country conditions in Venezuela. As noted by the U.S. Department of State,
The political climate in Venezuela is highly polarized and volatile. Violent crime is a serious problem, and the capital city of Caracas has been cited as having one of the highest per capita homicide rates in the world. Kidnappings, assaults and robberies occur throughout the country.
Violent crime in Venezuela is pervasive, both in the capital Caracas, and in the interior. The country's overall per capita murder rate is cited as one of the top five in the world. The Venezuelan National Counter Kidnapping Commission was created in 2006, and since then, official statistics have show alarming increases in reported kidnappings throughout the country. In fact kidnappings in 2009 have increased anywhere from 40-60 percent from the previous year. Surveys show that the overwhelming majority of kidnappings and other major crimes are not reported to the police. Armed robberies take place throughout the city, including areas generally presumed safe and frequented by tourists. Well-armed criminal gangs operate widely, often setting up fake police checkpoints. Only a very small percentage of crimes result in trials and convictions.
Harassment U.S. citizens by pro-government groups, Venezuelan airport authorities and some segments of the police is uncommon, despite the fact that Venezuela's most senior leaders, including President Chavez, regularly express anti-American sentiment.
County Specific Information-Venezuela, U.S. Department of State, dated March 12, 2010.
The record reflects that the applicant's U.S. citizen spouse would be forced to relocate to a country to which she is not familiar". She would have to leave her support network of family and friends, her job, her community and her church, and she would be concerned about her and her child's safety and welfare at all times while in Venezuela. In addition, she would not be able to maintain her quality of living due to the substandard economy in Venezuela. It has thus been established that the applicant's spouse would suffer extreme hardship were she to relocate abroad to reside with the applicant due to his inadmissibility.
Accordingly, the AAO finds that the situation presented in this application rises to the level of extreme hardship. However, the grant or denial of the waiver does not turn only on the issue of the meaning of extreme hardship." It also hinges on the discretion of the Secretary and pursuant to such terms, conditions and procedures as he may by regulations prescribe. In discretionary matters, the alien bears the burden of providing eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).
In evaluating whether... relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances or the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien's bad character or undesirability as a permanent resident of this country. The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where alien began residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country's Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien's good character (e.g., affidavits from family, friends and responsible community representatives).
See Matter of Mendez-Morales 21 I&N Dec. 296, 301 (BIA 1996). The AAO must then, "[B]alance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented on the alien's behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. " ld. at .300. (Citations omitted).
The favorable factors in this matter are the extreme hardship the applicant's U.S. citizen spouse and child would be if the applicant were to remain in Venezuela, regardless of whether they accompanied the applicant or remained in the United States, community ties, support letters, active involvement with the XXX Christian Center, gainful employment, the apparent lack of a criminal record, and the passage of more than six years since the applicant's unlawful entry to the United States. The unfavorable factors in this matter arc the applicant's unlawful entry to the United States and unlawful presence and employment while in the United States.
The immigration violations committed by the applicant are serious in nature and cannot be condoned. Nonetheless, the AAO finds that the applicant has established that the favorable factors in his application outweigh the favorable factors. Therefore, a favorable exercise of the Secretary's discretion is warranted.
In proceedings for application of waiver grounds of inadmissibility under section 212(a)(9)(B)(v), the burden of establishing that the applicant merits approval remains entirely with the applicant. Section 291 of the Act, U.S.C. §1361. The applicant has sustained that burden.
ORDER: The appeal is sustained. The waiver application is approved.
The record reflects that the application, a native and citizen of Venezuela, entered the United States without authorization in August 2003 and did not depart the United States until June 2007. The applicant is thus inadmissible to the United States pursuant to section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act). 8 U.S.C.§ 1182(a)(9)(H)(i)(II), for having been unlawfully present in the United States for more than one year. The applicant seeks a waiver of inadmissibility in order to reside in the United States with his U.S. citizen spouse and child, born in 2005.
The acting district director concluded that the applicant had failed to establish that extreme hardship would be imposed on a qualifying relative and denied the Application for Waiver of Grounds of Excludability (Form 1-601) accordingly Decision of the Acting District Director, dated February 11, 2008.
On appeal, counsel for the applicant submits brief, dated March 12, 2008, and referenced exhibits. In addition, on June 5. 2009, the AAO reviewed a follow-up letter from the applicant's spouse dated May 29. 2009. The entire record was reviewed and considered in rendering this decision.
Section 212Ia)(9)1 H)(i)(ll) of the Act provides, in pertinent part:
(B) Aliens Unlawfully Present
(i) In general- Any alien (other than an alien lawfully admitted for permanent residence) who-
(II) has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such alien's departure or removal from the United States is inadmissible.
(v) Waiver - The Attorney General [now the Secretary of Homeland Security (Secretary)] has sole discretion to waive clause (i) in the case of an immigrant who is the spouse or son of daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the Attorney General (Secretary) that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien...
In Matter of Cervantes-Gonzadez, 22 I&N Dec. 560. 565-66 (BlA 1999) the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists. In each case, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardship, takes the case beyond those hardships ordinarily associated with deportation, Matter O-J-O-. 21 I&N Dec. 381. 383 (BIA 1996)(Citations omitted).
Section 212(3)(9)(B)(v) of the Act provides that a waiver under section 212(a)(9)(B)(i)(II) of the Act is applicable solely where the applicant establishes extreme hardship to his or her citizen or lawfully resident spouse or parent. Unlike waivers under section 2l2(h) of the Act, section 212(a)(9)(I3)(v) does not mention extreme hardship to a United States citizen or lawful permanent resident child. Nor is extreme hardship to the applicant himself a permissible consideration under the statute. In the present case, the applicant's U.S. citizen spouse is the only qualifying relative, and hardship to the applicant or their child cannot be considered, except as it may affect the applicant's spouse.
The applicant must first establish that his U.S. citizen spouse would suffer extreme hardship were she to remain in the United States while the applicant resides abroad due to his inadmissibility. With respect to this criteria, the applicant's spouse contends that she will suffer emotional and financial hardship. In a declaration she states that she is suffering depression due to her spouse's absence. In addition, she notes that prior to her husband's departure, he would work nights and care for their child during the day, but since his departure, she is the sole caregiver for her child and such a predicament is causing her hardship. Finally, the applicant's spouse asserts that prior to her husband's departure, he was financially assisting the household but since he left the United States, she has been forced to move out of her apartment as she is unable to afford the monthly payments on her own, and reside with her parents. Due to an interest rate modification and the economic crisis, her parents' home is at risk of foreclosure, thereby putting her and her child in extreme hardship as they will have to find affordable alternative living accommodations. Affidavit of XXX dated March 12, 2008.
In support of the emotional hardship referenced, mental health documentation has been submitted, establishing the applicant's spouse diagnosis of depression, her need for antidepressants, and the recommendation that the applicant's spouse excused from work due to her present impairment in functioning. Letter from XXX Ph. D., Clinical Psychologist, Kaiser Permanente Fremont dated November 5, 2()07. Psychological Evaluation of XXX Psy.D, dated February 21, 2008, and Letter from XXX Psy.D, dated March 7, 2008. As for the financial hardship referenced, counsel has provided documentation confirming the applicant's spouse's parents' increased monthly house payments clue to an interest rate adjustment, and their current debt of $18, 148.16 on the home, which may lead to foreclosure. In addition, the record establishes the applicant's financial contributions to the household prior to his departure from the United States, to support the assertion that the applicant's contributions. See Form (G-325A. Biographic Information for XXX dated June 25, 2007. Finally, a letter has been provided from the applicant's spouse's parents, confirming their daughter and grandson's dependence on them for financial and emotional support since the applicant's departure from the United States. Letter from XXX.
The record reflects that the cumulative effect of the emotional and financial hardships the applicant's spouse is experiencing due to her husband's inadmissibly rises to the level of extreme. The AAO thus concludes that were the applicant unable to reside in the United States due to his inadmissibility, the applicant's spouse would suffer extreme hardship.
Extreme hardship to a qualifying relative must also be established in the event that he or she accompanies the applicant abroad based on the denial on the applicant's waiver request. With respect to this criteria, the applicant spouse references the problematic country conditions in Venezuela, including crime and violence, economic woes and a substandard quality of living. She asserts that her spouse's thirteen year old sister was recently abducted and ultimately found in another town. She further notes that her spouse has been unable to find a job since arriving in Venezuela. Moreover, the applicant's spouse contends that there is no drinking water, conditions are unsanitary, and basic supplies, like milk and rice are unavailable. Due to the problematic health conditions noted, her son was ill with diarrhea and dehydration and had to visit a medical clinic three times in one month while in Venezuela, Supra at 2-3. Finally, the applicant's spouse references the hardships she would face leaving her county, her family, including her mother, her father and her four long-term gainful employment, her community and her church. Affidavit of XXX dated June 25, 2007.
In support, counsel has provided extensive documentation regarding the problematic country conditions in Venezuela. In addition, a medical report has been provided confirming the applicant's child's three separate visits to a clinic while in Venezuela due to acute diarrhea, vomiting and inflammation of the lymph nodes. Medical Report and Translation from XXX dated January 7, 2008. Finally, the AAO notes that the U.S. Department of State corroborates the concerns raised by the applicant's spouse with respect to the problematic country conditions in Venezuela. As noted by the U.S. Department of State,
The political climate in Venezuela is highly polarized and volatile. Violent crime is a serious problem, and the capital city of Caracas has been cited as having one of the highest per capita homicide rates in the world. Kidnappings, assaults and robberies occur throughout the country.
Violent crime in Venezuela is pervasive, both in the capital Caracas, and in the interior. The country's overall per capita murder rate is cited as one of the top five in the world. The Venezuelan National Counter Kidnapping Commission was created in 2006, and since then, official statistics have show alarming increases in reported kidnappings throughout the country. In fact kidnappings in 2009 have increased anywhere from 40-60 percent from the previous year. Surveys show that the overwhelming majority of kidnappings and other major crimes are not reported to the police. Armed robberies take place throughout the city, including areas generally presumed safe and frequented by tourists. Well-armed criminal gangs operate widely, often setting up fake police checkpoints. Only a very small percentage of crimes result in trials and convictions.
Harassment U.S. citizens by pro-government groups, Venezuelan airport authorities and some segments of the police is uncommon, despite the fact that Venezuela's most senior leaders, including President Chavez, regularly express anti-American sentiment.
County Specific Information-Venezuela, U.S. Department of State, dated March 12, 2010.
The record reflects that the applicant's U.S. citizen spouse would be forced to relocate to a country to which she is not familiar". She would have to leave her support network of family and friends, her job, her community and her church, and she would be concerned about her and her child's safety and welfare at all times while in Venezuela. In addition, she would not be able to maintain her quality of living due to the substandard economy in Venezuela. It has thus been established that the applicant's spouse would suffer extreme hardship were she to relocate abroad to reside with the applicant due to his inadmissibility.
Accordingly, the AAO finds that the situation presented in this application rises to the level of extreme hardship. However, the grant or denial of the waiver does not turn only on the issue of the meaning of extreme hardship." It also hinges on the discretion of the Secretary and pursuant to such terms, conditions and procedures as he may by regulations prescribe. In discretionary matters, the alien bears the burden of providing eligibility in terms of equities in the United States which are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957).
In evaluating whether... relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances or the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien's bad character or undesirability as a permanent resident of this country. The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where alien began residency at a young age), evidence of hardship to the alien and his family if he is excluded and deported, service in this country's Armed Forces, a history of stable employment, the existence of property or business ties, evidence of value or service in the community, evidence of genuine rehabilitation if a criminal record exists, and other evidence attesting to the alien's good character (e.g., affidavits from family, friends and responsible community representatives).
See Matter of Mendez-Morales 21 I&N Dec. 296, 301 (BIA 1996). The AAO must then, "[B]alance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented on the alien's behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. " ld. at .300. (Citations omitted).
The favorable factors in this matter are the extreme hardship the applicant's U.S. citizen spouse and child would be if the applicant were to remain in Venezuela, regardless of whether they accompanied the applicant or remained in the United States, community ties, support letters, active involvement with the XXX Christian Center, gainful employment, the apparent lack of a criminal record, and the passage of more than six years since the applicant's unlawful entry to the United States. The unfavorable factors in this matter arc the applicant's unlawful entry to the United States and unlawful presence and employment while in the United States.
The immigration violations committed by the applicant are serious in nature and cannot be condoned. Nonetheless, the AAO finds that the applicant has established that the favorable factors in his application outweigh the favorable factors. Therefore, a favorable exercise of the Secretary's discretion is warranted.
In proceedings for application of waiver grounds of inadmissibility under section 212(a)(9)(B)(v), the burden of establishing that the applicant merits approval remains entirely with the applicant. Section 291 of the Act, U.S.C. §1361. The applicant has sustained that burden.
ORDER: The appeal is sustained. The waiver application is approved.
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