THE WAIVER OF INADMISSIBILITY PURSUANT TO SECTION 212(a)(9)(B)(v) OF THE IMMIGRATION AND NATIONALITY ACT: A CASE STUDY

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1 THE WAIVER OF INADMISSIBILITY PURSUANT TO SECTION 212(a)(9)(B)(v) OF THE IMMIGRATION AND NATIONALITY ACT: A CASE STUDY David N. Strange I. INTRODUCTION II. THE INSTANT CASE III. LEGAL ARGUMENT SUPPORTING MR. SMITH S APPLICATION FOR WAIVER: RELEVANT CASE LAW AND EXTREME HARDSHIP A. Favorable and Unfavorable Factors B. Necessary and Proper Relationship of Qualifying Relative with the Extreme Hardship Requirement IV. CONSTITUTIONAL LAW ARGUMENT A. The Fundamental Rights to Marriage and to Live Together as a Family B. The Unconstitutionality of Arbitrarily Denying I-601 Waivers When the Qualifying Relative Is a United States Citizen Spouse C. Safeguarding Constitutional Rights V. ECONOMIC (IN)EFFICIENCY VI. CONCLUSION I. INTRODUCTION If an adult individual has been unlawfully present in the United States for more than one year and voluntarily departs, that same individual is inadmissible to the United States for ten years. 1 There is, however, a waiver to this ground of inadmissibility pursuant to 212(a)(9)(B)(v) of the Immigration and Nationality Act (INA) if the applicant for the waiver can demonstrate that a qualifying relative (e.g., a spouse or a parent who is a United States citizen or lawful permanent resident) would suffer extreme hardship. 2 This waiver may be granted to an applicant applying within the United States or to an applicant applying from abroad. 3 Unfortunately, the standard in adjudicating such 1. See Immigration and Nationality Act (INA) 212(a)(9)(B)(i)(II), (iii)(i), 8 U.S.C. 1182(a)(9)(B)(i)(II), (iii)(i) (2006). If the unlawful presence totaled more than 180 days, but less than one year, the period of inadmissibility is three years. See INA 212(a)(9)(B)(i)(I). 2. See INA 212(a)(9)(B)(v). 3. See id. 49

2 50 TEXAS TECH LAW REVIEW THE ADDENDUM [Vol. 41:49 waivers is, at best, unclear and frequently misapplied and, at worst, nonexistent. As a result, fundamental rights of many U.S. citizens (and lawful permanent residents) are being trampled upon and nuclear families across the United States are made to suffer. Accordingly, it is time for the federal courts to step in and issue clear guidance in this area of the law. II. THE INSTANT CASE On April 14, 2005, a consular officer at the U.S. Consulate in Ciudad Juarez, Mexico refused to issue an immigrant visa to Mr. John Smith. 4 The consular officer found Mr. Smith inadmissible under INA 212(a)(9)(B)(ii), reflecting amendments through December 2, Consequently, pursuant to 212(a)(9)(B)(v), Mr. Smith filed a Form I-601, Application for Waiver of Grounds of Excludability, on April 14, Thereafter, on March 22, 2006, the United States Citizenship and Immigration Services (USCIS or Service) sub-office in Ciudad Juarez, Mexico, denied Mr. Smith s I-601 Application for Waiver. 7 This article will discuss that denial. 8 Mr. Smith entered the United States without inspection in January 2001 and unlawfully resided in the United States until April 10, 2005, when he voluntarily departed. 9 While in the United States, Mr. Smith married Mrs. Smith on September 22, 2001, in Dallas County, Texas. 10 Mrs. Smith is a citizen of the United States by birth. 11 At the time of the I-601 Waiver denial, Mr. and Mrs. Smith had been married for nearly five years. 12 Furthermore, their marriage produced a United States citizen daughter, Janie Smith, who was 4. Order of U.S. Citizenship & Immigration Services, No. CDJ , at 2 (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author). The names of all individuals and locations within the United States have been changed to protect privacy. 5. See INA 212(a)(9)(B)(ii) (explaining the construction of unlawful presence); Order of U.S. Citizenship & Immigration Services, No. CDJ , at 2. The consular officer most likely based his decision on INA 212(a)(9)(B)(i)(II), as will become clear once the facts of this particular case are further explored. 6. See INA 212(a)(9)(B)(v); Order of U.S. Citizenship & Immigration Services, No. CDJ , at Order of U.S. Citizenship & Immigration Services, No. CDJ , at Mr. Smith filed a timely appeal with the Administrative Appeals Office, which is still pending as of this writing. 9. Order of U.S. Citizenship & Immigration Services, No. CDJ , at 2. By the time of his departure, Mr. Smith had accrued more than one year of unlawful presence in the United States as an adult. Id. 10. This information is contained in the I-601 Waiver Application materials submitted to the Texas Tech Law Review by the author. The author has retained copies of these files. 11. See supra note 10 (regarding Mrs. Smith s U.S. birth certificate in waiver application). 12. See supra note 10 (regarding marriage certificate in waiver application). At the time of this article, Mr. and Mrs. Smith have been married for approximately eight years. See supra note 10.

3 2009] THE WAIVER OF INADMISSIBILITY 51 born on July 11, 2002, in Dallas, Texas. 13 Other than the bar instituted by INA 212(a)(9)(B)(i)(II), Mr. Smith is eligible for an immigrant visa. 14 On October 15, 2003, Mr. and Mrs. Smith purchased a home located at 1010 Maple Street in Dallas, Texas. 15 But as a result of Mr. Smith s exclusion from the United States, the Smith family lost their home. 16 Consequently, Mrs. Smith and her daughter now depend on Mrs. Smith s mother for shelter. 17 Both of Mrs. Smith s parents reside in the United States and, aside from her husband, Mrs. Smith has no immediate family or close friends in Mexico. 18 By way of her husband s exclusion from the United States, Mrs. Smith has been forced into the role of a single mother on an extremely low income. 19 For the three years prior to the I-601 Waiver denial, Mrs. Smith averaged an annual income of only $12,527 and did not earn more than $14,637 in any single year, with the lowest being only $9, This income fell well below the 2006 poverty guidelines issued by the Department of Homeland Security. 21 Prior to Mr. Smith s departure and exclusion from the United States, Mrs. Smith depended heavily on her husband for financial and emotional support. 22 Mr. Smith s absence from the United States, consequently, has had devastating effects on Mrs. Smith personally and has caused severe strains on their marriage. 23 Additionally, this forced separation has prevented Mrs. Smith from having more children. 24 Mr. and Mrs. Smith have many friends and relatives in Dallas, Texas, where the Smiths resided prior to Mr. Smith s exclusion from the United States. 25 They were, and still are, a close-knit family with each playing 13. See supra note 10 (regarding Janie Smith s U.S. birth certificate in waiver application). 14. See Immigration and Nationality Act (INA) 212(a)(9)(B)(i)(II), 8 U.S.C. 1182(a)(9)(B)(i)(II) (2006); Order of U.S. Citizenship & Immigration Services, No. CDJ , at 1 (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author). Mr. Smith does not have a criminal record and has no immigration violations other than the one-time entry into the United States without inspection on January 2001 (and subsequent unauthorized employment). See supra note 10 (regarding letter from Mrs. Smith in waiver application). 15. See supra note 10 (regarding sales contract on real estate, amortization schedule, and letter from Seller in waiver application). 16. See supra note 10 (regarding letters in waiver application from Mrs. Smith, Mr. Smith, Seller, and Mrs. Smith s mother). The I-601 Waiver Application also included a copy of an April 25, 2005 agreement to sell the house and a subsequent lease of the house, dated April 27, See supra note 10. The I-601 Waiver Application also included a copy of an April 7, 2006 property search listing a different individual as the owner of the property. See supra note See supra note See supra note See infra notes and accompanying text. 20. See supra note 10 (regarding Mrs. Smith s 2003, 2004, and 2005 income tax returns in waiver application). 21. Annual Update of the HHS Poverty Guidelines, 71 Fed. Reg. 3848, 3849 (Jan. 24, 2006). This income falls well below the 2008 poverty guidelines as well. See 73 Fed. Reg. 3971, 3972 (Jan. 23, 2008). 22. See supra note 10 (regarding letters in waiver application). 23. See supra note 10 (regarding letters in waiver application from Mr. and Mrs. Smith). 24. See supra note 10 (regarding letter from Mrs. Smith in waiver application). 25. See supra note 10 (regarding letters from family and friends in waiver application).

4 52 TEXAS TECH LAW REVIEW THE ADDENDUM [Vol. 41:49 important roles as father, husband, mother, and wife. 26 Both Mrs. Smith and her daughter, Janie, are U.S. citizens by birth with no legal status in Mexico. 27 Accordingly, Mrs. Smith has no other option but to remain in the United States and wait for her husband s return. 28 Mrs. Smith is a qualifying relative under INA 212(a)(9)(B)(v), and her husband s exclusion from the United States appears to have subjected her (and continues to subject her) to extreme hardship. 29 If true, Mr. Smith is deserving of the waiver authorized by Congress to address this very situation. 30 III. LEGAL ARGUMENT SUPPORTING MR. SMITH S APPLICATION FOR WAIVER: RELEVANT CASE LAW AND EXTREME HARDSHIP A. Favorable and Unfavorable Factors In its decision to deny Mr. Smith s application for a waiver, the Service cited Matter of Tin and Matter of Lee and discussed the Commissioner s findings by detailing a list of favorable and unfavorable factors. 31 At the conclusion of its decision, the Service stated the following: Additionally, the Attorney General s favorable discretion can only be granted after weighing the favorable and unfavorable factors in every case. In the instant case, the favorable factors do not outweigh the unfavorable factors. 32 The Service s (1) discussion of the favorable versus unfavorable factors in the instant case, (2) finding that the favorable factors do not outweigh the unfavorable factors, and (3) use of that conclusion as part of its basis for denying Mr. Smith s application is difficult to understand. 33 Strictly adhering to the findings of the 26. See supra note 10 (regarding letters describing family relations and family photos in waiver application). 27. See supra note 10 (regarding U.S. birth certificates of Mrs. Smith and her daughter, Janie, in waiver application). 28. See supra note 10 (regarding supplemental letter from Mrs. Smith dated April 10, 2006, in waiver application). 29. See Immigration and Nationality Act (INA) 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) (2006); see discussion supra Part II. 30. See, e.g., Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (per curiam) ( The most important single [hardship] factor may be the separation of the alien from family living in the United States. (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)) (internal quotation marks omitted)). 31. Order of U.S. Citizenship & Immigration Services, No. CDJ , at 2-3 (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author) (citing Matter of Tin, 14 I. & N. Dec. 371 (B.I.A. 1973); Matter of Lee, 17 I. & N. Dec. 275 (B.I.A. 1978)). 32. Id. at See generally id. at 2-4 (discussing the reasons for the Service s denial of Mr. Smith s waiver application). This is an incorrect application of the standard in any event. By saying that the favorable factors do not outweigh the unfavorable factors and using this as a reason to deny the application, the Service is creating its own rule and asserting that an applicant does not start off on a neutral slate in the favorable versus unfavorable balancing act. See id. Instead, the applicant begins with the scales tipped against him or her, and the applicant then has to bring forth favorable factors and tip the scale the other way to his or her favor. See id. at 4. There is absolutely neither legislative nor case authority for this rule. The Service just made it up. Instead, the rule in denying an application is that the unfavorable factors must outweigh the

5 2009] THE WAIVER OF INADMISSIBILITY 53 Commissioner (and the Regional Commissioner) from Matter of Tin and Matter of Lee, the only possible unfavorable (or adverse) factor that could be found against Mr. Smith in the instant case is his one-time entry without inspection into the United States on or about January The Commissioner ruled in Matter of Lee that a violation of the immigration laws could, but does not necessarily, reflect poorly on good moral character and may be an unfavorable factor. 35 The Commissioner further stated that a record of immigration violations standing alone will not conclusively support a finding of a lack of good moral character. 36 The Commissioner then noted the importance of reformation of character after violating immigration laws: An evinced callous attitude toward violating the immigration laws without a hint of reformation of character should be considered as a heavily weighted adverse factor. In the instant case, I do find that hint of reformation of character in the attitude of the applicant in surrendering himself to the Service and departing the United States voluntarily Thus, in Matter of Lee, the Commissioner concluded that the favorable factors outweighed the unfavorable factors in finding for the applicant, Mr. Lee. 38 In light of the District Director s denial of Mr. Lee s application by relying on Matter of Tin and another case, Matter of Chim, 39 the Commissioner commenced a discussion of the legislative history and intent underlying the waiver that Mr. Lee sought. 40 The Commissioner found that the intent of Congress [was] to give a previously deported alien a second chance and connotes a remedial relief rather than a punitive provision of statute. In this regard, I find the several decisions affecting permission to reapply after deportation lacking this attitude. [The previous cases of] Matter of H_R_, 5 I&N Dec. 769 (C.O. 1954), and Matter of Chim... convey a punitive attitude and attach conditions beyond anything I believe Congress intended in granting favorable factors. See id. Under this rule, with all things being equal, the applicant remains eligible for a waiver. See id. 34. Id. at 2; see cases cited infra notes 35, 50-79, and accompanying text. This unfavorable factor is nevertheless negated by Mr. Smith s rehabilitation. See cases cited infra notes 35, 50-79, and accompanying text. 35. Matter of Lee, 17 I. & N. Dec. at Id. at Id. (emphasis added). 38. Id. at Id. at 276 (citing Matter of Tin, 14 I. & N. Dec. 371 (B.I.A. 1973); Matter of Chim, 14 I. & N. Dec. 357 (B.I.A. 1973)). 40. Id. at 277.

6 54 TEXAS TECH LAW REVIEW THE ADDENDUM [Vol. 41:49 the Attorney General authority to allow previously deported or excluded aliens to reapply for entry into the United States. 41 In other words, the Commissioner found that the District Director had given too much weight to the unfavorable factors and had erroneously relied on Matter of Tin in doing so. 42 Consequently, in Matter of Lee, the Commissioner concluded that Matter of Tin... [is] modified insofar as the weight given to adverse factors is inconsistent with the weight accorded the adverse factors in this decision. 43 Thus, the Commissioner found that Matter of Tin was overruled only to the extent that it gave too much weight to the adverse factors found therein. 44 The spirit of the law, according to the Commissioner, compels the decision-maker to hold off on attaching too much weight to adverse factors, thereby thwarting congressional intent. 45 This is the only modification of Matter of Tin that the Commissioner determined in Matter of Lee. 46 Accordingly, we must turn to Matter of Tin for guidance. 47 In Matter of Tin, the Regional Commissioner stated the following: In determining whether the consent required by statute should be granted, all pertinent circumstances relating to the applicant which are set forth in the record of proceedings are considered. These include but are not limited to the basis for deportation, recency of deportation, length of residence in the United States, the moral character of the applicant, his respect for law and order, evidence of reformation and rehabilitation, his family responsibilities, any inadmissibility to the United States under other sections of law, hardship involved to himself and others, and the need for his services in the United States. 48 At this point, we do not yet consider the extreme hardship to the U.S. citizen spouse as required under 212(a)(9)(B)(v) of the INA. 49 Instead, we only focus on favorable and unfavorable factors relating to the applicant to determine if the applicant is eligible for a waiver. 50 The applicant in this case is Mr. Smith, and the Service relied on both Matter of Tin and Matter of Lee to deny Mr. Smith s application for waiver, stating that the Attorney General s favorable discretion can only be granted after weighing the favorable and unfavorable factors in every case. In the 41. Id. 42. See id. 43. Id. at 279 (emphasis added). 44. See id. 45. See id. 46. Id. (citing Matter of Tin, 14 I. & N. Dec. 371 (B.I.A. 1973)). 47. Matter of Tin, 14 I. & N. Dec Id. at (emphasis added). 49. Immigration and Nationality Act (INA) 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) (2006). 50. See supra text accompanying note 48.

7 2009] THE WAIVER OF INADMISSIBILITY 55 instant case, the favorable factors do not outweigh the unfavorable factors. 51 But a close inspection of the circumstances laid out in Matter of Tin reveals the following weighing of favorable versus unfavorable factors in the instant case, which the Service wholly failed to consider: 52 (1) Basis for deportation not applicable. 53 Mr. Smith voluntarily departed the U.S. 54 (2) Recency of deportation not applicable. 55 (3) Length of residence in the United States not applicable. 56 The Commissioner in Matter of Lee stated, I can only relate a positive factor of residence in the United States where that residence is pursuant to a legal admission or adjustment of status as a permanent resident. 57 This circumstance is either a favorable factor in the March 2006 decision or it is simply not applicable. The author is not aware of any precedent that would allow this circumstance to be judged as a negative factor. Instead, any unlawful presence in the United States is covered by moral character. 58 (4) Applicant s moral character favorable factor. 59 Mr. Smith has no criminal record and no immigration violations other than his entry into the United States without inspection in January Furthermore, as mentioned earlier, the Commissioner concluded in Matter of Lee that a record of immigration violations standing alone will not conclusively support a finding of a lack of good moral character. 61 Finally, Mr. Smith supported his wife and children while in the United States, and those who personally know Mr. Smith speak highly of him. 62 (5) Applicant s respect for law and order favorable factor. 63 Moreover, Mr. Smith voluntarily departed the United States because he desires to enter the United States lawfully with proper documentation Order of U.S. Citizenship & Immigration Services, No. CDJ , at 4 (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author). 52. See Matter of Tin, 14 I. & N. Dec. at 373. In the March 2006 decision, the Service simply stated that [i]n the instant case, the favorable factors do not outweigh the unfavorable factors. Order of U.S. Citizenship & Immigration Services, No. CDJ , at 4. The Service did not explain how it reached this conclusion. See id. 53. Order of U.S. Citizenship & Immigration Services, No. CDJ , at 2 (citing Matter of Tin, 14 I. & N. Dec. at 373). 54. Id. 55. See id. (citing Matter of Tin, 14 I. & N. Dec. at 373); see supra text accompanying notes See id. (citing Matter of Tin, 14 I. & N. Dec. at 373). 57. Matter of Lee, 17 I. & N. Dec. 275, 278 (B.I.A. 1978). 58. Id. at See Order of U.S. Citizenship & Immigration Services, No. CDJ , at 2-3 (citing Matter of Tin, 14 I. & N. Dec. at 373). 60. See supra note 10 and accompanying text. Mr. Smith, however, worked in the U.S. without authorization following his unlawful entry. See supra note 10 and accompanying text. 61. Matter of Lee, 17 I. & N. Dec. at 278; see supra note 36 and accompanying text. 62. See supra note 10 (regarding copies of letters in waiver application describing Mr. Smith s support of his family and his reputation, along with family photos). 63. See Order of U.S. Citizenship & Immigration Services, No. CDJ , at 2 (citing Matter of Tin, 14 I. & N. Dec. at 373); see supra notes and accompanying text.

8 56 TEXAS TECH LAW REVIEW THE ADDENDUM [Vol. 41:49 (6) Evidence of reformation and rehabilitation favorable factor. 65 The Commissioner found in Matter of Lee that Mr. Lee had reformed his character when he voluntarily departed the United States. 66 Mr. Smith, likewise, voluntarily departed the United States; thus, there is clear evidence of reformation and rehabilitation in the instant case. 67 (7) Applicant s family responsibilities favorable factor. 68 The Regional Commissioner does not expound on this at any length in his decision, but he does point out that Mr. Tin had no family ties in the United States and that Mr. Tin s wife and children were in mainland China. 69 Accordingly, this circumstance could only possibly refer to family responsibilities in the United States. 70 Mr. Smith s family responsibilities in the United States are enormous and certainly favorable in the instant case considering Mr. Smith s responsibilities to his wife and their United States citizen daughter. 71 (8) Any inadmissibility to the United States under other sections of the law favorable factor. 72 In Mr. Smith s case, there is no such inadmissibility under other sections of the law. 73 (9) Hardship involved to the applicant and others favorable factor. 74 The Service s denial of Mr. Smith s application resulted in the forced separation of a husband and wife in a viable, mutually dependent marriage, with a United States citizen child involved. 75 This, in turn, results in a hardship on Mr. Smith, Mrs. Smith, their United States citizen daughter, and their family and friends in the United States. 76 This also results in a hardship on the United States taxpayer if Mrs. Smith is forced to rely on welfare or other governmental assistance because she has lost the support of her husband and is forced into the role of a single mother. 77 (10) The need for the applicant s services in the United States probably unfavorable, if consideration is restricted to a need falling outside of Mr. 64. See Order of U.S. Citizenship & Immigration Services, No. CDJ , at 2. This is evidenced by the application for a waiver and the fact that Mr. Smith filed an appeal. 65. See id. (citing Matter of Tin, 14 I. & N. Dec. at 373). 66. Matter of Lee, 17 I. & N. Dec. at See Order of U.S. Citizenship & Immigration Services, No. CRJ , at 2; see supra note 66 and accompanying text. 68. See Order of U.S. Citizenship & Immigration Services, No. CRJ , at 2 (citing Matter of Tin, 14 I. & N. Dec. at 373). 69. Matter of Tin, 14 I. & N. Dec. at See id. 71. See Order of U.S. Citizenship & Immigration Services, No. CRJ , at 3; see discussion supra Part II. 72. See Order of U.S. Citizenship & Immigration Services, No. CRJ , at 2 (citing Matter of Tin, 14 I. & N. Dec. at 373). 73. See id. at See id. at 2 (citing Matter of Tin, 14 I. & N. Dec. at 373). 75. See discussion supra Part II. 76. See supra note 10 (regarding letters in waiver application describing hardship). 77. See supra note 10 (regarding letters in waiver application demonstrating Mrs. Smith s reliance on her husband for economic and emotional support).

9 2009] THE WAIVER OF INADMISSIBILITY 57 Smith s family. 78 On the other hand, this circumstance would certainly be a favorable factor if consideration is given to any need for services in the United States because there is clearly a need for Mr. Smith, as far as Mrs. Smith and their daughter are concerned, in Mr. Smith s role as a husband and a father. 79 A simple cursory look at the relevant factors in the present case clearly shows that the favorable factors far outweigh the unfavorable factors (assuming, but in no way agreeing, that there is even one unfavorable factor at all). The Service, however, in its decision, failed to properly weigh the favorable factors against the unfavorable factors. 80 Despite its utter failure in this regard, the Service thereupon announced that it was denying, at least in part, Mr. Smith s application because [i]n the instant case, the favorable factors do not outweigh the unfavorable factors. 81 The Service s actions, therefore, amount to abuse of discretion. Although a waiver granted pursuant to 212(a)(9)(B)(v) of the INA is subject to the Attorney General s discretion, discretionary actions are reviewable for abuse of the discretion imparted. 82 The Administrative Procedure Act states that [a] reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall (2) hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 83 Accordingly, even though the Attorney General has sole discretion to grant a waiver pursuant to 212(a)(9)(B)(v) of the INA, Congress did not intend the Attorney General or his subordinates to have absolute discretion to be exercised at the whim of the decision-maker. 84 In any event, weighing favorable and unfavorable factors is not part of the Attorney General s sole discretion under 212(a)(9)(B)(v). 85 These factors should have been considered and weighed prior to that exercise of discretion 78. See Order of U.S. Citizenship & Immigration Services, No. CRJ , at 2 (citing Matter of Tin, 14 I. & N. Dec. at 373). 79. See id. 80. Id. at Id. 82. See, e.g., Foti v. INS, 375 U.S. 217 (1963); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 (1957); Wong Wing Hang v. INS, 360 F.2d 715, 718 (2d Cir. 1966). But see Jay v. Boyd, 351 U.S. 345, (1956) U.S.C. 706 (2006). 84. Immigration and Nationality Act (INA) 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) (2006); see also INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996). 85. See INA 212(a)(9)(B)(v).

10 58 TEXAS TECH LAW REVIEW THE ADDENDUM [Vol. 41:49 authorized by INA 212(a)(9)(B)(v). 86 This, however, never occurred and is a grave error on the part of the Service because the non-discretionary aspects of the discretionary decision always remain subject to judicial review. 87 B. Necessary and Proper Relationship of Qualifying Relative with the Extreme Hardship Requirement In its decision denying Mr. Smith s application for waiver, the Service explained that Mr. Smith is subject to a ten-year bar from entering the United States and further discussed the need for a waiver of that bar pursuant to INA 212(a)(9)(B)(v). 88 The Service stated that Congress provided for such a waiver but limited its application to requiring, in each case, a showing that the ban imposes an extreme hardship upon a qualifying family member. It is evident that Congress did not intend that a waiver be granted merely due to the existence of a qualifying relationship.... Common results of the bar such as separation, financial difficulties, etc., in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts..... With regard to the applicant s extreme hardship claim, the applicant submits a letter from his wife. The letter speaks of the normal problems associated with separation.... The applicant s wife recounts problems that she and their daughter are experiencing as a result of the applicant s inadmissibility. As children are not qualifying family members, possible hardships to the children are off point.... While separation and financial concerns can cause hardship, the evidence in the record has not established that the hardships his wife must endure could be defined as extreme. This is not to say that such a separation is easy to bear or that it is taken lightly; the statements presented simply do not establish that the applicant s wife s situation is more severe than that of other individuals in similar circumstances.... Congress purposely limited the conditions under which this extraordinary relief would be granted and did not intend for it to be granted based solely on a qualifying relationship or economic hardship. 89 The Service made a giant leap connecting INA 212(a)(9)(B)(v) to its ultimate conclusion in the instant case; furthermore, the Service inappropriately 86. See id. 87. See, e.g., Hernandez v. Ashcroft, 345 F.3d 824, (9th Cir. 2003); Medina-Morales v. Ashcroft, 362 F.3d 1263, (9th Cir. 2004). 88. See INA 212(a)(9)(B)(i)(II); Order of the U.S. Citizenship & Immigration Services, No. CDJ , at 2 (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author). In other words, Mr. Smith is inadmissible for ten years. See INA 212(a)(9)(B)(i)(II). 89. Order of U.S. Citizenship & Immigration Services, No. CRJ , at 3-4 (emphasis added).

11 2009] THE WAIVER OF INADMISSIBILITY 59 relied on past case law that is off point to justify its rationale. 90 It is worth while to take a closer look at this point. The Service, in its decision to deny Mr. Smith s application, made reference to financial difficulties, the mere loss of employment, the inability to maintain one s present standard of living or to pursue a chosen profession,... [and] cultural readjustment. 91 The Service stated that according to case law, it has been found that these factors do not constitute extreme hardship. 92 But in all of the cases that the Service cited which stated that economic hardship or cultural readjustment by itself is not enough to support a finding of extreme hardship, the issue actually involved the suspension of deportation of aliens who would suffer economic hardship or cultural readjustment outside the United States in their own country. 93 In the present matter, the economic hardship falls on a United States citizen within the United States. 94 There is no case law stating that economic hardship to a United States citizen by itself is not sufficient to show extreme hardship. Instead, case law has reasoned that conditions in an alien s homeland is not a dispositive factor in a suspension hearing. We do not believe that Congress intended the immigration courts to suspend the deportation of all those who will be unable to maintain the standard of living at home which they have managed to achieve in this country. If the critical emphasis were on the economic situation in the alien s homeland, a grant of relief would obviously be mandated in the case of aliens from many developing countries. 95 Thus, the economic hardship, or cultural readjustment, on aliens being deported to their own country is what courts have deemed insufficient by itself because that approach would undermine congressional intent. 96 In the case of economic hardship to a United States citizen, however, there is no such rationale involved and the dynamics are completely different. 97 The Service s 90. See id. 91. Id. 92. See id. 93. See id. at 3 (citing Matter of Pilch, 21 I. & N. Dec. 627 (B.I.A. 1996); Marquez-Medina v. INS, 765 F.2d 673 (7th Cir. 1985); Bueno-Carillo v. Landon, 682 F.2d 143 (7th Cir. 1982); Chokloikaew v. INS, 601 F.2d 216 (5th Cir. 1979); Banks v. INS, 594 F.2d 760 (9th Cir. 1979); Matter of Kojoory, 12 I. & N. Dec. 215 (B.I.A. 1967)). Suspension of Deportation is the predecessor to Cancellation of Removal. Matter of Romalez-Alcaide, 23 I. & N. Dec. 423, 436 (B.I.A. 2002). Suspension relief was replaced by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of Matter of Nolasco-Tofino, 22 I. & N. Dec. 632, 634 (B.I.A. 1999). Previously, an immigrant was eligible for relief by a showing of seven years physical presence, good moral character, and extreme hardship to the immigrant or to a qualifying relative. Matter of Dilla, 19 I. & N. Dec. 54, 55 (B.I.A. 1984). 94. See supra Part II. 95. Bueno-Carillo, 682 F.2d at 146 (citation omitted) (emphasis added); see also Marquez-Medina, 765 F.2d at See sources cited supra note See Order of U.S. Citizenship & Immigration Services, No. CRJ , at 3. Also, hardship to a United States citizen could have a ripple effect within the United States in terms of the citizen possibly

12 60 TEXAS TECH LAW REVIEW THE ADDENDUM [Vol. 41:49 blanket contention asserting it has been found that [economic hardship or cultural readjustment] do not constitute extreme hardship is simply wrong. 98 Instead, case law holds that economic hardship or cultural readjustment on an alien applying for suspension of deportation do not constitute extreme hardship. 99 The Service s jump making the two one and the same is without precedent and arbitrary in its application. This is nothing more than a Service officer legislating from behind a desk. Next, the Service does a bit of legislating again when it states that separation... [by itself is] insufficient to warrant approval of an application unless combined with much more extreme impacts. 100 The Service then relied on case law to support this contention. 101 The Service also stated that Congress provided for [an INA 212(a)(9)(B)(v)] waiver but limited its application to requiring, in each case, a showing that the ban imposes an extreme hardship upon a qualifying family member. 102 From this, the Service concluded that separation by itself does not constitute extreme hardship and then just invented a normal problems associated with separation standard that is pulled right out of the air. 103 This is a terrible jump in reasoning and is without legislative or case law precedent. Instead, Congress mandated a waiver where the refusal of admission to [an] immigrant alien would result in extreme hardship to the [qualifying relative] of such alien. 104 In other words, a qualifying relationship by itself is not enough, even when combined with a separation of the alien from the qualifying relative. 105 There must be an extreme hardship element involved as well. 106 The Service s reliance on case law to reach its unfounded conclusion and contrive its new normal problems associated with separation standard is faulty and erroneous. In Banks, the court explained that [Mrs.] Banks marriage had previously... been found insufficient to support her application for adjustment of status and that [Mrs.] Banks had been separated from her husband for at least the last four or five years, and his whereabouts were unknown to her. 107 The court then concluded that [t]he separation of... a having to rely on welfare because of the economic hardship and in terms of higher divorce rates caused by forced separation, the attack on the family, a possible rise in criminal activity, or dropping out of school because children are forced into single parent homes and lose the support of one of their parents. See supra Part III.B. 98. See Order of U.S. Citizenship & Immigration Services, No. CRJ , at See Guadarrama-Rogel v. INS, 638 F.2d 1228, 1230 (9th Cir. 1981) Order of U.S. Citizenship & Immigration Services, No. CRJ , at See id. (citing Banks v. INS, 594 F.2d 760, (9th Cir. 1979); Matter of Ngai, 19 I. & N. Dec. 245, 247 (B.I.A. 1984); Matter of Shaughnessy, 12 I. & N. Dec. 810, (B.I.A. 1968); Matter of W, 9 I. & N. Dec. 1, 4 (B.I.A. 1960)) Id Id Immigration and Nationality Act (INA) 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) (2006) See id Id Banks v. INS, 594 F.2d 760, 763 (9th Cir. 1979).

13 2009] THE WAIVER OF INADMISSIBILITY 61 wife from a husband who has not been seen in several years, is not the type of extreme hardship contemplated by the statute. 108 In Matter of Ngai, the Commissioner explained that the applicant was in Hong Kong and was self-supporting, she and her husband had not seen each other in over twenty-eight years (pursuant to their own free choice), the husband had no plans to reunite with his wife if she were not allowed entrance to the United States, and the District Director concluded that a marriage on paper by itself was insufficient to establish a basis for a waiver. 109 The Commissioner then stated the following: A waiver of bar to admission... is dependent first upon a showing that the fact of the bar imposes an extreme hardship on a qualifying family member. Congress provided this waiver but limited its application. By such limitation it is evident that it did not intend that a waiver be granted merely due to the fact that a qualifying relationship existed. The key term in the provision is extreme and thus only in cases of great actual or prospective injury to the United States [citizen or lawful permanent resident alien] will the bar be removed. 110 Thus, separation by itself is insufficient. 111 There is no normal problems associated with separation standard. 112 Such a standard is contrary to congressional intent because it excludes considering the extreme hardship caused by the separation itself. 113 That is absurd. What are the normal problems associated with separation when the separation is between a husband and wife in a viable, mutually dependent marriage, with a United States citizen child involved? Whatever those normal problems are, they are extreme. Instead, case law has held that separation by itself where there is no attached extreme hardship involved is insufficient. 114 Congress agrees; that is why it added the provision that extreme hardship to the qualifying relative must be demonstrated. 115 Thus, the separation of a husband and wife who are already separated is not extreme. 116 The Service should not be allowed to legislate beyond this standard. The Service also relied on Matter of W Again, this reliance is misplaced and off point. In Matter of W-, the BIA found 108. Id Matter of Ngai, 19 I. & N. Dec. 245, 246 (B.I.A. 1984) Id. at 246 (emphasis added) See id. at See id.; Order of the U.S. Citizenship & Immigration Services, No. CDJ , at 3 (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author) See supra notes and accompanying text See Matter of Ngai, 19 I. & N. Dec. at ; Matter of W-, 9 I. & N. Dec. 1, 4-5 (B.I.A. 1960); Matter of Shaughnessy, 12 I. & N. Dec. 810, 813 (B.I.A. 1968) See supra notes and accompanying text See supra notes and accompanying text Order of the U.S. Citizenship & Immigration Services, No. CDJ , at 3 (citing Matter of W-, 9 I. & N. Dec. 1 (B.I.A. 1960)).

14 62 TEXAS TECH LAW REVIEW THE ADDENDUM [Vol. 41:49 [the] record does not establish that appellant s exclusion will result in extreme hardship to his United States citizen wife. There are no children to be considered, and she is not dependent upon appellant for support. However, it is our present opinion that the refusal to grant the waiver primarily on the ground that the appellant has not shown that his wife would suffer extreme hardship by being deprived of his company was limiting the denial of the waiver to too narrow a ground. In addition to showing that his exclusion would result in extreme hardship to his United States citizen wife, [the law] requires a positive finding that the admission to the United States of this alien would not be contrary to the national welfare, safety, or security of the United States.... The grant or denial of the waiver does not turn only on the issue of the meaning of extreme hardship. We have considered and reviewed the entire record, and it is our decision that appellant does not merit the exercise of the discretion contained in [the law]. The unfavorable aspects of the investigative report, the fact that appellant has an illegitimate child, the fact of his conviction for crimes involving moral turpitude, the fact that five former employers had serious complaints against him, and the fact that he procured his visa without disclosing a criminal conviction which had taken place within the same month, must all enter into our decision. In assessing the degree of hardship, it is also proper to note that appellant and his wife married on comparatively brief acquaintance, and that he has no other ties, family, business, social or sentimental, in the United States. 118 Accordingly, the BIA found against the applicant in Matter of W This decision, however, as evidenced by the record, was not based on a finding that separation by itself cannot constitute extreme hardship. 120 The decision in Matter of Shaughnessy, likewise, does not hold that separation alone cannot constitute extreme hardship. 121 Instead, the BIA held that the facts and circumstances peculiar to each case should control when interpreting what amounts to extreme hardship The BIA then found that the exclusion of the adult child would not result in hardship on his citizen parents because they did not presently rely on their son for financial support, nor was it foreseeable that they would in the future. 123 Finally, the BIA noted that the applicant had been convicted of several serious crimes and that the applicant for a waiver must establish that his admission would not be contrary to the national welfare, safety or security of the United States. 124 With respect to the denial of Mr. Smith s application for waiver, the Service s blanket approach holding that separation does not constitute extreme 118. Matter of W-, 9 I. & N. Dec. at 4-5 (emphasis added) Id. at See id. at See Matter of Shaughnessy, 12 I. & N. Dec. 810, (B.I.A. 1968) Id. at See id Id. at

15 2009] THE WAIVER OF INADMISSIBILITY 63 hardship is absolutely void of precedent. Furthermore, its normal problems associated with separation standard is meaningless and unsupported by precedent. What are the normal problems of separation? Which of these amount to extreme hardship, which do not, and in what instances? Case law requires inquiry into the facts and circumstances peculiar to each case to determine whether there is an extreme hardship. 125 No case law or legislative rule supports the Service s rationale in its decision to deny Mr. Smith s application. The Service just made it up. Case law, instead, has held that separation by itself is insufficient one could meet the statutory definition of a qualifying relative without the existence of extreme hardship because of separation. 126 Although the instant matter does not raise that scenario (and the author would venture to guess that such a scenario is the exception rather than the norm), service officers should not be allowed to legislate from their desks. Instead, the separation of family should be properly weighed in every case. 127 Finally, the Service s position that possible hardships to the children are off point and therefore should not be considered because they are moot is preposterous. 128 More precisely, the law states that hardship must be shown to a qualifying relative. 129 This section does not automatically preclude consideration of possible hardships to children of qualifying relatives, especially when those hardships directly affect the qualifying relative. 130 Ignoring possible hardships to the children of qualifying relatives also ignores the effects of those hardships on the qualifying relative. 131 By refusing to consider the possible hardships to the children of qualifying relatives, the Service failed to follow the requirement mandated by Congress, thereby undermining congressional intent and further circumventing the law. 132 IV. CONSTITUTIONAL LAW ARGUMENT The Service s decision to deny Mr. Smith s application for a waiver and to exclude Mr. Smith from the United States has enormous constitutional implications. This point, however, should not be construed as an attempt to 125. Shaughnessy, 12 I. & N. Dec. at See Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) See id. (noting that separation from family may be [t]he most important single [hardship] factor ) See Order of the U.S. Citizenship & Immigration Services, No. CDJ , at 3 (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author) See Immigration and Nationality Act (INA) 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v) (2006) See id.; see also Salcido-Salcido, 138 F.3d at 1293 (requiring the B.I.A. to consider the impact that deportation would likely have on children and families) See Salcido-Salcido, 138 F.3d at 1293 (finding abuse of discretion where all relevant factors are considered) See INA 212(a)(9)(B)(v); see, e.g., In re Monreal, 23 I. & N. Dec. 56, 63 (B.I.A. 2001) (holding that factors relating to the applicant him or herself can be considered insofar as they may affect the hardship to a qualifying relative); In re Recinas, 23 I. & N. Dec. 467, 471 (B.I.A. 2002) (holding that, in addition to the hardship of the U.S. citizen children, factors that relate only to the respondent may also be considered to the extent that they affect the potential level of hardship to qualifying relatives).

16 64 TEXAS TECH LAW REVIEW THE ADDENDUM [Vol. 41:49 ignore a sovereign nation s right to regulate immigration. 133 Rather, it is an attempt to demonstrate how decisions from a Service officer, without any support in the law, to deny an I-601 Waiver can severely curtail longrecognized constitutional rights, especially when considering that such waivers are specifically authorized by Congress to preserve nuclear family unity. The fundamental right to marriage has been well documented and highly litigated in U.S. legal history. 134 Starting with Loving v. Virginia, the U.S. Supreme Court has upheld the right to marriage. 135 Subsequent cases before the Court have defined what the right to marriage incorporates. Not only does the right to marriage include the individual choice to marry or not to marry, but also whom to marry and the all-important right to live together as a family. 136 If a U.S. citizen is denied the fundamental right to live with a spouse as a family, that same U.S. citizen is likewise denied the fundamental right to marriage. 137 A marriage certificate alone does not make a marriage; rather, the shared lives of the two individuals make the marriage. 138 The U.S. Supreme Court has repeatedly held in favor of the individual citizen in cases involving the fundamental right to marriage and to live as a family. 139 This section of the article is offered because the USCIS sub-office in Ciudad Juarez relied on faulty legal reasoning to deny Mr. Smith s I-601 Application for Waiver. 140 Such denial subjects Mr. Smith to exclusion from the United States, thereby calling into question the constitutionality of the arbitrary refusal to grant the I-601 Waiver as it relates to Mrs. Smith s fundamental rights to marriage and to live together with her family. 141 Mr. Smith s exclusion from the United States, in this instance, is an immediate impingement upon Mrs. Smith s fundamental rights because that exclusion is based on faulty legal reasoning, ignores constitutional law, and undermines congressional intent to preserve nuclear family unity. 142 A. The Fundamental Rights to Marriage and to Live Together as a Family In Loving v. Virginia, the U.S. Supreme Court confirmed marriage as a fundamental right. 143 Loving presented a case in which a white man and a 133. See, e.g., Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889) E.g., Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1977); Boddie v. Connecticut, 401 U.S. 371 (1971); Loving v. Virginia, 388 U.S. 1 (1967). (This article only deals with marriage between a man and a woman as Mr. and Mrs. Smith in this case are a man and a woman.) 135. Loving, 388 U.S. at See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494 (1977) Loving, 388 U.S. at Id See supra notes and accompanying text Order of U.S. Citizenship & Immigration Services, No. CDJ (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author) Id See supra notes and accompanying text Loving, 388 U.S. at 2.

17 2009] THE WAIVER OF INADMISSIBILITY 65 black woman were married in Washington, D.C., and then returned to their home state of Virginia. 144 Upon the couple s return, both were indicted and convicted for violating Virginia s ban on interracial marriages. 145 In reversing the decision of the Virginia Supreme Court, Chief Justice Warren wrote, The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. 146 Holding the Virginia statute banning interracial marriages as unconstitutional, the Court reasoned that the statute in question violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. 147 The Court s analysis of Virginia s miscegenation law as depriving citizens of their liberty to marry without due process of law was the driving force in declaring the statute unconstitutional. 148 In describing the fundamental right to marriage, Chief Justice Warren wrote, Marriage is one of the basic civil rights of man, fundamental to our very existence and survival.... Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed. 149 Implicit in the decision of Loving was not only the right to marriage but also the right to choose whom to marry. 150 The Virginia statute did not outlaw all marriages. 151 The only marriages in violation of the statute were marriages between white individuals and anyone not of white descent. 152 Mr. Loving could have circumvented the law by simply marrying a white woman, but this would have deprived him of the right to freely marry one of his choosing. 153 By marrying outside his race, Mr. Loving and his wife were both sentenced to oneyear prison terms under the Virginia law. 154 The Court, however, ruled that the Constitution does not allow such hindrance on the right to marriage. 155 In the present case, the Service s legally insufficient decision to deny Mr. Smith s I-601 Waiver subjects him to exclusion from the U.S. and because of that legal insufficiency, impinges upon Mrs. Smith s fundamental right to marriage. 156 Under Loving, this cannot be tolerated. 157 Although the 144. Id Id. at Id. at Id. at Id. at Id See id. (stating that miscegenation law infringed on the right to marry) Id. at Id See id. at 2, Id. at Id. at See Order of the U.S. Citizenship & Immigration Services, No. CDJ , at 2, 3 (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author) See Loving, 388 U.S. at 12.