Office: PORTLAND, OREGON

Transcription

1 u.s. Department of Homeland Security U.S, Citizenship and Inunigration Services Administrative Appeals.Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 WashingJ.on, DC 205~ U.S. citizenship and Immigration Services Date: AUG Office: PORTLAND, OREGON FILE: INRE: Applicant: APPLICATION: Application for Waiver of Grounds of Inadmissibility pursuant to section 2l2(i) of the Immigration and Nationality Act (the Act), 8 U.S.c. l182(i) ON BEHALF OF APPLICANT: PHILIP HORNIK 520 SW SIXTH AVENUE, SUITE PORTLAND, OR INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office. r;:::.t.~ PerryRhew Chief, Administrative Appeals Office AUG 1 2 2(111

2 Page 2 DISCUSSION: The waiver application was denied by the Field Office Director, Portland, Oregon. The matter is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be sustained. The record reflects that the applicant is a native and citizen of Mexico who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Act, 8 U.S.C. 1182(a)(6)(C)(i), for fraud or willful misrepresentation of a material fact in order to procure an immigration benefit. The applicant is married to a U.S. citizen and seeks a waiver ofinadmissibility pursuant to section 212(i) ofthe Act, 8 U.S.c. 1182(i), in order to reside with her husband in the United States. The field office director found that the applicant failed to establish extreme hardship to a qualifying relative and denied the application accordingly. Decision ofthe Field Office Director, dated March 16,2009. On appeal, counsel contends the field office director failed to consider all of the evidence in the aggregate, particularly consideringthe psychological evaluation intherecord. The record contains, inter alia: a copy of the marriage certificate of the applicant and her husband, Mr_indicating they were married ~tember 23, 2007; a declaration and a letter from Mr. _ a psychological evaluation ofmr._; a letter from the applicant's sister; a letter from Mr..'ssister; letters from Mr. s employer; a letter from the applicant's employer; a copyofthe U.S. Department of State's Travel Warning for Mexico and other background material; copies oftax returns, bills, and other financial documents; and an approved Petition for Alien Relative (Form 1-130). The entire record was reviewed and considered inrenderingthis decision on the appeal..section 212(a)(9)(B) ofthe Act provides, in pertinent part: (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 sllch 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

3 Page 3 is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for pennanent 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 ofsuch alien. In this case, the record shows, and counsel concedes, that in November 2006, the applicant misrepresented her intentions when entering the United States as a visitor. Briefon Appeal at 2, dated April 17, Therefore, the applicant is inadmissible to the United States under section 212(a)(6)(C)(i) ofthe Act, 8 U.S.c. 1182(a)(6)(C)(i), for willful misrepresentation of a material fact in order to procure an immigration benefit. Extreme hardship is "not a definable tenn of fixed and inflexible content or meaning," but "necessarily depends upon the facts and circumstances peculiar to each case." Matter ofhwang, 10 I&N Dec. 448, 451 (BIA 1964). In Matter ofcervantes-gonzalez, the Board provided a list of factors it deemed relevant in detennining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence ofa lawful pennanent resident or United States citizen spouse or parent in this country; the qualif'ying relative's family tiesolitsidejheynitedstates; the col1ditiolls in the country orcountries to which the qilalitying relative would relocate and the extent of the qualif'ying relative's ties in such countries; the financial impact ofdeparture from this country; and significant conditions ofhealth, particularly when tied to an uuavailability of suitable medical care in the country to which the qualif'ying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list offactors was not exclusive.!d. at 566. The Board 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 Matter of Cervantes-Gonzalez, 22 I&N Dec. at 568; Matter ofpilch, 21 I&N Dec. 627, (BIA 1996); Matter oflge, 20 I&N Dec. 880,883 (BIA 1994); Matter ofngai, 19 I&N Dec. 245, (Comm'r 1984); Matter ofkim, 15 I&N Dec. 88, (BIA 1974); Matter ofshaughnessy, 12 I&N Dec. 810, 813 (BIA 1968). However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that "[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in detennining whether extreme hardship exists." Matter ofo-j-o-, 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

4 Page 4 combination of hardships takes the case beyond those hardships ordinarily associated with deportation."!d. The actual hardship associated with an abstract hardship 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 individual hardships. See, e.g., Matter ofbing Chih Kao and Mei Tsui 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 speak the language of the country to which they would relocate). For example, though family 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 considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401,403 (9th Cir. 1983)); but see Matter ofngai, 19 I&N Dec. at 247 (separation ofspouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years). Therefore, we consider the totality ofthe circumstances in determining whether denial of admission would result in extreme hardship to a qualifying relative. In this case, the applicant's husb~(:cmr._sia:tes that he was bam intexas aild-tha1::iiiafhi-s immediate family lives in the United States, including ten siblings, four children from previous relationships, and three grandchildren. He states that he does not know much about Mexico and has only been there a few times. Accor~ Mr. _ if he moved to Mexico to be with his wife, he fears being unable to find a job. Mr. _ states that he also fears he would never see his eighty-eight year old father again because he would be unable to afford returning to the United States ifthere was an emergency. He states he also fears for his safety in Mexico. Mr._states that when he recently traveled to Ciudad Juarez, he found it very disturbing. According to Mr.~hen he was on the bus on his way back from visiting his mother-in-law, he saw what he thought was a car accident but was actually a shoot out the cartel had with the~. On another occasion, Mr_was with his nephew in a car that had tinted windows. Mr. _contends a truck stopped and four or five men got out ofthe truck with machine guns. Mr.was purportedly told to walk to the front ofthe car when another truck approached with five more men, all ofwhom had automatic weapons and wore ski masks. One of the men reportedly told Mr..s nephew that he did not like the car's tinted windows and scraped the tinting off the front win~d. Mr..and his nephew were report~old to remove the tinted fihn from the windows or else theywouldnot be so lucky next time. Mr._states that this is the way people act, even in bright daylight on a main street, as ifit was an everyday occurrence. He states that he and his nephew did not even go to the police "because down there you just don't know whose on the take." He states that his in-laws told him that these types ofthings happen ~t Mr. states that he never wants t~hing like that again. Letterfrom_ dated March21,2011; Declaration b~ dated September II, 2008.

5 Page 5 A letter from the applicant's sister, Ms._ states that her sister has a home in Mexico in Los Mochis for which she pays approximately $130 per month. Ms~ontends that there have been several robberies because her sister'~oes not have necess~ precautions, such as a roof, a fence, or a gate. According to Ms. _ her sister's house also suffered from earthquake damage and if her sister went to live in Los Mochis she would have to invest a large amount of money to prepare the house. In addition, Ms.1iiiiiiii contends that in orde~ consultation at a health clinic, one must wait in a line startin~a.m. Furthermore, Ms._contends that violence is a serious problem in the state of Sinaloa, where the applicant and her husband would live if they relocated to Mexico. Ms. _ states that for her and others in Sinaloa, "the violence has become routine" because most people have witnessed chases, shootings, and even murders by the drug cartels. Letterfrom undated. A psychological evaluation ofmr. _ states that he was the middle child ofeleven children who grew up in a home with a physically an~bally abusive alcoholic father. According to the PSYCh!l0. t, Mr. ~atched and heardhis motherbeingbeaten and felt powerless to stop his father. Mr..s purportedly very close to his siblings since they supported each other while growing up in or er to survive. In addition, the psychologist states that Mr.~ew ~Idaho where he felt a sense of discrimination and prejudice during his school years. When Mr. ~as twenty-three years old, he purportedly was calledback home from the Army because his mother died, his fatherleft, andthere was no one to care for his younger siblings. -According to tl'lep-sychologist; Mr._firstmarriage was briefand they had a son together. Mr. 's ex-wife purportedly disappe~ their son and Mr. was unable to find him until he was twelve years old and complained that his mother abused him. Mr..s son subsequently lived with him for two years. Mr. sphysician purportedly prescribed him Prozac for his depression which dates back to his first mamage. The psychologist states that Mr. _emarried and had twins with his second wife.~s second marriage ended after twenty-eight years. According to the psychologist, whenmr.~s current wife, the applicant, he felt there was new meaning in his life. He fears he will go into a serious depression ifshe returns to Mexico without him, and fears that ifhe moved to Mexico with her, he would deeply miss his siblings and his children. The psychologist states that~has a history of depression and anxiety. He reported having difficulty sleeping, feeling anxious, and has had thoughts ofsuicide. The psychologist diagnosed Mr. _ with Dysthymia and Adjustment Disorder with Depression and Anxiety.. According to the psychologist, ifhis wife is not allowed to remain in the United States, Mr.~ould experience serious psychological consequences and it is highly likelyhis depression would worse to the point he WOilllid seriousl consider suicide.' Letter from Te.rrie A. Lyons, dated July 21,2008; see also Letterfrom dated September 24, 2008 (letter from Mr._ssister stating that he used to suffer from c lillca epression, isolated himself, and did not get out ofbed). Upon a complete review of the record, the AAO finds that the applicant's husband, Mr. _ will suffer extreme hardship ifthe applicant's waiver application were denied. The record shows that Mr. has a history ofmental health issues, including dysthymia, adjustment disorder, depression and anxiety. Accor~ the psychologist, Mr. grew up with a5ically and verbally abusive father who, after Mr.~ mother died left the family, leaving Mr. _ with the responsibility of caring for his youngest siblings. Mr. _reported having difficulty sleeping, feeling anxious, and having

6 -Page 6 suicidal thoughts when thinking about the possibility of his wife's departure from the United ~ The psychologist contends that if the applicant depart~nited States, it is highly likely Mr._ would seriously consider suicide. Considering Mr._s mental health issues, if the applicant returned to Mexico and he decided to stay in the United States, the AAO finds that the effect of separation from the applicant goes above and beyond the experience that is typical to individuals separated as a result ofinadmissibility or exclusion and rises to the level ofextreme hardship. Moreover, moving to Mexico to avoid separation would be an extreme hardship for Mr.. The record shows that Mr. is currently fifty-eight years old and was born in the United States. The record shows that his entire fam~ in the United States, including his siblings, children, and grandchildren. According to Mr._he does not know much about Mexico and when he has traveled there, he has both witnessed and personally experienced violence. The AAO takes administrative notice that the U.S. Department of State urges U.S. citizens to defer non-essential travel to parts ofmexico, including Sinaloa, where the applicant andmr._contend they would live, due to ongoing violence and persistent security concerns. The U.S. Department of State recognizes that one ofmexico's most powerful transnational criminal organizations (TCOs) is based. in the state of Sinaloa. Us. Department ofstate, Travel Warning, Mexico, dated April 22, Considering all of these factors cumulatively, the AAO finds that the hardship Mr. would experience if he hadto move to Mexico is extreme, goingwell beyond those hardships ordinarily associated with inacin1issibllity or exciusion:themo therefore-finds that the evidence ofhardship, considered in the aggregate and in light ofthe Cervantes-Gonzalez factors cited above, supports a finding that Mr. faces extreme hardship ifthe applicantis refused admission. The AAO also finds that the applicant merits a waiver ofinadmissibility as a matterofdiscretion. In discretionary matters, the alien bears the burden of proving that positive factors are not outweighed by adverse factors. See Matter of T-S-Y-, 7 I&N Dec. 582 (BIA 1957). The adverse factors in the present case are the applicant's misrepresentation of her reason for coming to the United States, and periods of unauthorized presence and employment. The favorable and mitigating factors in the present case include: family ties in the United States including her U.S. citizen husband; the extreme hardship to the applicant's husbandif she were refused admission; and the fact that the applicant has not had any arrests or convictions in the United States. The AAO finds that, although. the applicant's immigration violation is serious and cannot be condoned, when taken together, the favorable factors in the present case outweigh the adverse factors, such that a favorable exercise of discretion is warranted. Accordingly, the appeal will be sustained. ORDER: The appeal is sustained.