AAO Sustains Appeal and Withdraws Prior AAO Decision on I-601 Waiver
Recently
an applicant, who was been denied on I-601 waiver before, filed a motion to
reopen and reconsider the AAO's decision in accordance with 8 C.F.R. § 103.5.
After submitting many new evidence and with the help of a lawyer, the motion is
granted, the prior AAO decision is withdrawn and the underlying appeal is
sustained. Let us have a look at what reasons made AAO reconsider it again
and what factors makes AAO withdraw the prior decision.
The applicant is a native and citizen of Bangladesh who was found to be
inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the
Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for
having attempted to procure a visa to the United States through willful
misrepresentation. The Field Office Director concluded the applicant failed to
establish extreme hardship would be imposed upon a qualifying relative, and
denied his Application for Waiver of Grounds of Inadmissibility (Form 1-601)
accordingly. The AAO dismissed the applicant's appeal and affirmed the Field
Office Director's decision.
On motion, counsel contends: the AAO's dismissal of the applicant's appeal of
the denial of his waiver application is "erroneous as a matter of law and fact"
as the AAO "improperly assessed and weighed the evidence" provided in support of
the waiver application; the AAO "failed to make rational[] and logical
inferences from the evidence contained in the administrative record"; and the
administrative record "clearly shows the hardship [the applicant's mother] is
experiencing goes beyond what is normally experienced by a qualifying relative
of an inadmissible individual."
According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts
to be proved and be supported by affidavits or other documentary evidence. 8
C.F.R. § 103.5(a)(2). A motion to reconsider must state the reasons for
reconsideration and be supported by any pertinent precedent decisions to
establish that the decision was based on an incorrect application of law or
Service policy. A motion to reconsider a decision on an application or petition
must, when filed, also establish that the decision was incorrect based on the
evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3).
As the applicant has submitted new documentary evidence to support his claim and
asserted reasons for reconsideration, the motion to reopen and reconsider will
be granted.
Extreme hardship is "not a definable term of fixed and inflexible content or
meaning," but "necessarily depends upon the facts and circumstances peculiar to
each case." Matter of Hwang, 10I&N Dec. 448, 451 (BrA 1964). In Matter of
Cervantes-Gonzalez, 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. 22 I&N Dec. 560, 565 (BIA 1999). The
factors include the presence of a lawful permanent resident or United States
citizen spouse or parent in this country; the qualifying relative's family ties
outside the United States; the conditions in the country or countries to which
the qualifying relative would relocate and the extent of the qualifying
relative's ties in such countries; the financial impact of departure from this
country; and significant conditions of health, particularly when tied to an
unavailability of suitable medical care in the country to which the qualifying
relative would relocate. Id. The BrA added that not all of the foregoing factors
need be analyzed in any given case and emphasized that the list of factors was
not exclusive. Id. at 566.
The BIA has also held that the common or typical results of removal and
inadmissibility do not constitute extreme hardship, and has listed certain
individual hardship factors considered common rather than extreme. These factors
include: economic disadvantage, loss of current employment, inability to
maintain one's present standard of living, inability to pursue a chosen
profession, separation from family members, severing community ties, cultural
readjustment after living in the United States for many years, cultural
adjustment of qualifying relatives who have never lived outside the United
States, inferior economic and educational opportunities in the foreign country,
or inferior medical facilities in the foreign country. See generally Id. at 568;
In re Pilch, 21 I&N Dec. 627,632-33 (BIA 1996); Matter ofIge, 20 I&N Dec. 880,
883 (BIA 1994); Matter ofNgai, 19 I&N Dec. 245, 246-47 (Comm'r 1984); Matter of
Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810,
813 (BIA 1968).
On motion, counsel contends: separation from the applicant and his brother "is
exacerbating [the applicant's mother'S] medical condition as her mental health
has deteriorated significantly and is rooted in her inability to see [the
applicant and his brother]"; "while [the applicant's mother's treating mental
health professional] does not discuss ongoing treatment, she nonetheless makes
it clear that [the applicant's] presence would be advantageous to his mother's
mental conditions and physical health"; the applicant's mother "relies upon
others to care for her needs ... the burden of caring for her falls on the
shoulders of only one of her children[,] who at the same time has his own wife
and children to also care for"; the applicant's older brother is a street vendor
and "often works long hours in harsh weather conditions just to make sufficient
funds to support his family"; the applicant's older brother's "income
significantly dropped after 2009 ... [a]t the same time, his financial support
obligations have remained the same"; "though the proof of remittance is from
2006, [the applicant's older brother] has continued to support [the applicant
and his brother] remaining in Bangladesh"; and the applicant's older brother's
family "lives well below the Department of Homeland Security Poverty Guidelines
... [the applicant's] presence in the United States could greatly relieve this
burden by providing another source of income ... or he could remain at the
family home and care for his mother and nieces while his brother's wife seeks
employment." In support of these contentions, the motion includes a letter from
the applicant's mother's treating physician, stating, "She persistently
experiencing [sic] physical and emotional symptoms, which dramatically restrict
her ability to function independently, and make her dependent on others."
Medical Letter, Issued by Dr. Alexander Merson, M.D., Ph.D., dated April 24,
2013. The motion also includes an additional medical letter, stating, the
applicant's mother's medical conditions "are currently in stable condition,
however [she] needs psychiatric follow-up for current non-urgent mental status."
Medical Letter, Issued by Dr. Fahim Tazwar, M.D., dated April 23, 2013. And, the
motion includes a copy of the applicant's older brother's 2012 income tax
returns and a Medicaid online renewal form.
Previously, the AAO determined the record is sufficient to establish the
applicant's mother is currently being treated for various medical conditions
controlled by prescriptive medications and that she has been diagnosed with
Major Depressive Disorder. Additionally, the AAO determined the record is
sufficient to establish the applicant's older brother is their mother's primary
breadwinner, and he last submitted remittances to the applicant's household on
June 7, 2006. On motion, the AAO finds the record is further sufficient to
establish the applicant's absence from his mother is a contributing factor to
her current mental health condition, and the applicant's presence would be
essential to the physical, emotional, and financial wellbeing of his mother and
her household. Accordingly, the AAO finds, in the aggregate, the applicant's
parent would suffer extreme hardship upon separation from the applicant.
In its previous decision, the AAO found the applicant's parent would experience
extreme hardship if she were to relocate to Bangladesh due to her length of
residence and strong ties to the United States, she maintains her lawful
permanent residence status, her ongoing medical treatment, the current social
conditions in Bangladesh, along with the normal hardships associated with
relocation. The AAO notes the applicant's parent's circumstances have not
improved since the AAO's previous decision. Accordingly, the record continues to
reflect the cumulative effect of the hardship the applicant's parent would
experience upon relocation due to the applicant's inadmissibility rises to the
level of extreme.
Extreme hardship is a requirement for eligibility, but once established it is
but one favorable discretionary factor to be considered. Matter of Mendez-Moralez,
21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is
on the applicant to establish that a grant of a waiver of inadmissibility is
warranted in the exercise of discretion. Id. at 299. The adverse factors
evidencing an alien's undesirability as a permanent resident must be balanced
with the social and humane considerations presented on his behalf to determine
whether the grant of relief in the
exercise of discretion appears to be in the best interests of this country. Id.
at 300.
The BIA further stated that upon review of the record as a whole, a balancing of
the equities and adverse matters must be made to determine whether discretion
should be favorably exercised. The equities that the applicant for section
212(h)(1)(B) relief must bring forward to establish that he merits a favorable
exercise of administrative discretion will depend in each case on the nature and
circumstances of the ground of exclusion sought to be waived and on the presence
of any additional adverse matters, and as the negative factors grow more
serious, it becomes incumbent upon the applicant to introduce additional
offsetting favorable evidence. Id.
The favorable factors in this case include extreme hardship to the applicant's
lawful permanent resident mother, familial ties, and the absence of a criminal
record. The unfavorable factors include the applicant's misrepresentation of his
identity upon the attempt to obtain an immigrant visa.
Although the applicant's violation of immigration law cannot be condoned, the
positive factors in this case outweigh the negative factors. Therefore, the AAO
finds that a favorable exercise of discretion is warranted.
In application proceedings, it is the applicant's burden to establish
eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C.
§ 1361. Here, that burden has been met.
ORDER: The motion is granted. The prior decision of the AAO is withdrawn, and
the underlying appeal is sustained.