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Immigrant Application for Waiver of Grounds

Posted by attorney Thomas Esparza

A wai ver o f i nadmi ssi bi l i t y under section 2I 2( a ) ( 9) ( B) ( v) o f the Act is dependent on a s howi ng that the bar to admi ssi on imposes ext r eme hardshi p on a qualifying relative, whi ch includes t he U.S. ci t i zen or l awful l y resi dent spouse or par ent o f the applicant. Hardshi p to the appl i cant or chi l dren can be consi dered onl y insofar as it results in hardshi p to a qualifying relative. Th e appl i cant ' s s pous e is the onl y qual i fyi ng relative in this case. I f ext r eme hardship to a qual i f yi ng relative is established, the appl i cant is statutorily el i gi bl e for a waiver, and USC IS then assesses whet her a

favorabl e exer ci se o f discretion is warranted. See Maller o f Melldez-Moralez, 21 I&N Dec. 296, 3 0 I (B IA 1996).

As a qual i fyi ng relative is not required to depart t he United St at es as a cons equence o f an appl i cant ' s inadmissibility, t wo distinct factual scenari os exi st shoul d a wai ver appl i cat i on b e denied: ei t her the qualifying rel at i ve will j o i n the applicant to reside abroad or the qualifying rel at i ve will remai n in the United States. Ascer t ai ni ng the actual course o f action that will be taken is compl i cat ed by the fact that an applicant may easily assert a plan for t he qual i fyi ng relative to rel ocat e abroad o r to remain in t he United St at es dependi ng on which scenario presents the greatest pr ospect i ve hardshi p, even t hough no intention exists to carry out the alleged pl an in reality. Cf Maller o f 1ge, 20 I&N Dec. 880, 885 (BIA 1994) (addressi ng separat i on o f mi nor child from both parents appl yi ng for suspensi on o f deportation). Thus, we interpret the statutory language o f the various waiver provisions in section 212 o f t he Act to require an applicant to est abl i sh ext r eme hardshi p to his or her qualifying relative(s) under both possible scenarios. To endure t he hardship o f separat i on when ext r eme hardshi p could be avoi ded by j oi ni ng the appl i cant abroad, or to endure the hardshi p o f relocation when ext r eme hardshi p could b e avoided by r emai ni ng in the United States, is a malleI' o f choi ce and not t he result o f removal or inadmissibility. As t he Board o f Immi grat i on Appeals stated in Mal l er o f l g e :

[ W] e consi der t he critical issue . . . to be whet her a child would suffer e xt r e me hardshi p i f he accompani ed his parent abroad. If, as in this case, no hardship would ensue, t hen the fact

that the child might face hardship i f left in t he United St at es would b e t he result o f parental

choice, not the pa r e nt ' s deportation. ld. See al so Mal l er o f Pilch, 21 [&N Dec. 627, 632-33 ( BI A 1996) Ext r eme hardship is "not a defi nabl e term o f fixed and inflexible cont ent or meani ng, " but "necessar i l y depends upon the facts and ci rcumst ances pecul i ar to each case. " Mal l er o f Hwang, 1 0 I &N Dec. 448, 451 (BrA 1964). [n Maller o f Cervantes-Gonzalez, the Board provided a list o f factors it deemed relevant in determining whether an alien has established ext reme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BrA 1999). Th e factors include the presence o f 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 o f the qualifying rel at i ve' s ties in such countries; the financial impact o f departure from this country; and significant conditions o f health, patticularly when tied to an unavailability o f suitable medical care in the country to which the qualifying relative would relocate.

!d. Th e Board added that not all o f the foregoing factors need be anal yzed in any given case and

emphasi zed that the list o f factors was not exclusive. ld. at 566.

Th e Board has also held that the common or typical results o f deport at i on, removal and

i nadmi ssi bi l i t y do not const i t ut e ext r eme hardshi p, and has listed cert ai n individual hardshi p factors

consi der ed c ommon rat her than ext reme. Th e s e factors include: economi c di sadvant age, loss o f current empl oyment , inability to mai nt ai n o n e ' s present standard o f living, inability to pur sue a chosen profession, separat i on from family members, severi ng communi t y ties, cultural readj ust ment aft er living in the United St at es for many years, cultural adj ust ment o f qual i f yi ng relatives who have never lived out si de t he Uni t ed States, inferior economi c and educat i onal opport uni t i es in t he foreign count ry, or inferior medical facilities in the foreign country. See general l y Mal l er o f Cervanles-

Gonzal ez, 22 I&N Dec. at 568; Mal l er o f Pilch, 21 I&N Dec. at 631-32; Mat t er o f Ige, 20 I&N Dec. at 883; Mal l er o f Ngai, 19 I&N Dec. 245, 246-47 ( Co mm' r 1984); Mal l er o f Kim, 15 I&N Dec. 88, 89-90 (BrA 1974); Mal l er of Shal l gl l l l es s y, 12 I&N Dec. 810, 813 (BIA 1968).

However , though hardships may not be ext r eme when consi dered abst ract l y or individually, the

Board has made it cl ear that "[r]el evant factors, though not ext r eme in t hemsel ves, must b e

consi dered in the aggregat e in det ermi ni ng whet her ext reme hardship exi st s. " Mat t er o f D-J-D-, 21 I&N Dec. 381, 383 ( Br A 1996) (quot i ng Mal l er o f Ige, 20 I&N Dec. at 882). Th e adj udi cat or "mus t consi der the ent i r e range o f factors concer ni ng hardshi p in t hei r totality and det er mi ne whet her the combi nat i on o f hardships takes the case beyond those hardships ordi nari l y associ at ed with deport at i on. " ld.

We obs er ve that t he actual hardshi p associ at ed wi t h an abstract har dshi p fact or s uch as family separat i on, e c onomi c di sadvant age, cultural r eadj ust ment , et cet era, differs in nat ur e and severit y dependi ng on the uni que ci rcumst ances o f each case, as does the cumul at i ve har ds hi p a qual i fyi ng r el at i ve exper i ences as a result o f aggregat ed individu~1 hardships. See, e.g., III re Bing Chill Kao al l d Mei TSlli Lill, 23 I&N Dec. 45, 51 ( BI A 2001) ( di st i ngui shi ng Mal l er o f Pilch regardi ng har dshi p faced b y qual i fyi ng relatives on t he basis o f variations in the l engt h o f r esi dence in the Uni t ed St at es and t he ability to s pe a k the l anguage o f t he count r y to whi ch t hey woul d relocate). Fami l y separat i on, for instance, has been found to b e a c ommon result o f i nadmi ssi bi l i t y o r removal in s o me cases. See Mal l er o f Shallghllessy, 12 I&N Dec. at 813. Nevertheless, family ties are to be consi der ed in anal yzi ng hardship. See Maller o f CelllQlltes-Gollzalez, 2 2 I&N Dec. at 565-66. The quest i on o f whet her family separ at i on is the or di nar y result o f i nadmi ssi bi l i t y o r removal may

depend on the nat ure o f family rel at i onshi p consi dered. For exampl e, in Mal t er o f Shallghllessy, the Board consi der ed the scenari o o f parents bei ng separ at ed from their s oon- t o-be adult son, finding that this separ at i on woul d not resul t in ext r eme har dshi p to the parents. Id. at 811- 12; see also U.S. v. Arri et a, 2 2 4 FJ d 1076, 1082 (9th Cir. 2000) ( " Mr . An i e t a was not a s pous e, but a son and brother. I t was evi dent from t he record that the ef f ect o f thdepor t at i on or der woul d be separ at i on rather than rel ocat i on. "). In Mal t er o f Cervalltes-Gollzalez, the Boar d cons i der ed the scenar i o o f the r es pondent ' s s pous e accompanyi ng him to Mexico, finding that s he woul d not exper i ence ext r eme har dshi p from l os i ng "physi cal proxi mi t y to her fami l y" in the Uni t ed States. 22 I&N Dec. at 566- 67.

Additional resources provided by the author

Thomas Esparza, Jr. Attorney
A Professional Corporation
Specialist in Immigration and Nationality Law

Thomas Esparza, Board Certified Specialist in Immigration and Nationality law with thirty four years experience in the field. He is the past chairman of the Texas chapter of the American Immigration Lawyers Association and the current chairman of the Austin Commission on Immigrant Affairs.
Jacqueline L. Waston is a Board Certified Specialist In Immigration and Nationality law with 11 years experience. She is a frequent lecturer for the University of Texas, the State Bar of Texas and is an active member of the community.

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