U.S. Citizenship and Immigration Services

MATTER OF N-M-

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 29,2017

APPEAL OF LAS VEGAS, NEVADA FIELD OFFICE DECISION

APPLICATION: FORM I-601, APPLICATION FOR WAIVER OF GROUNDS OF INADMISSIBILITY

The Applicant, a native and citizen of Pakistan currently residing in the United States, has applied to adjust status to that of a lawful permanent resident. A foreign national seeking to be admitted to the United States as an immigrant or to adjust status must be "admissible'' or receive a waiver of inadmissibility. The Applicant has been found inadmissible tor fraud/misrepresentation and seeks a waiver of that inadmissibility. See Immigration and Nationality Act (the Act) section 212(i), 8 U.S.C. § 1182(i). U.S. Citizenship and Immigration Services may grant this discretionary waiver if refusal of admission would result in extreme hardship to a qualifYing relative or qualifYing relatives.

The Director of the Las Vegas, Nevada Field Oftice denied the waiver application, concluding that the record did not establish, as required, that denial of the waiver would result in extreme hardship to the Applicant's spouse.

On appeal, the Applicant submits additional evidence and asserts that the Director erred in not finding that his spouse's hardship would be extreme.

Upon de novo review, we will dismiss the appeal.

I. LAW

Any foreign national who, by fraud or willfully misrepresenting a material fact seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under the Act, is inadmissible. Section 212(a)(6)(C)(i) of the Act. There is a waiver of this inadmissibility if refusal of admission would result in extreme hardship to the United States citizen or lawful permanent resident spouse or parent of the foreign national. Section 212(i) of the Act.

Decades of case law have contributed to the meaning of extreme hardship. The definition of extreme hardship "is not ... fixed and inflexible, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case." Matter o.f Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999) (citation omitted). Extreme hardship exists "only in cases of great actual and prospective injury." Matter (~f Ngai, 19 I&N Dec. 245, 246-47 (BIA 1984). An applicant must

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demonstrate that claimed hardship is realistic and foreseeable. !d.; see also Malter of"Shaughnes.\)', 12 I&N Dec. 810, 813 (BIA 1968) (finding that the respondent had not demonstrated extreme hardship where there was "no showing of either present hardship or any hardship ... in the foreseeable future to the respondent's parents by reason of their alleged physical defects'} The common consequences of removal or refusal of admission, which include "'economic detriment ... [,] loss of current employment, the inability to maintain one's standard of living or to pursue a chosen profession, separation from a family member, [and] cultural readjustment,'' are insut1icient alone to constitute extreme hardship. Matter <~l Pilch, 21 I&N Dec. 627 (BIA 1996) (citations omitted); but see Matter qf" Kao and Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of' Pilch 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 the qualifying relatives would relocate). Nevertheless. all "[ r ]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists." Matter qf Jge, 20 I&N Dec. 880, 882 (BIA 1994) (citations omitted). Hardship to the Applicant or others can be considered only insofar as it results in hardship to a qualifying relative. Matter of" Gonzalez Recinas, 23 I&N Dec. 467, 471 (BIA 2002).

II. ANALYSIS

The issue on appeal is whether the Applicant's spouse would experience extreme hardship if the waiver application is denied and, if so, whether the Applicant merits a favorable exercise of discretion. The Applicant does not contest the finding of inadmissibility for fraud or willful misrepresentation under section 212(a)(6)(C)(i) of the Act, which is supported by the record. 1 The claimed hardships to the Applicant's spouse upon separation are emotional, medical, and financial. The record contains, but is not limited to, the following documentation from the Applicant: birth and marriage certificates; passports; written statements from his spouse; records from courts and police agencies; medical records; bills, statements, and other financial records; tax and employment records; and immigration application, forms, and related correspondence.

We have reviewed all the evidence in the record, and we find that the record establishes that the claimed hardships rise to the level of extreme hardship when considered cumulatively. However, the evidence does not establish that the Applicant merits a favorable exercise of discretion.

A. Hardship

As stated, a section 212(i) waiver is available to foreign nationals who demonstrate that refusal of admission would result in extreme hardship to the United States citizen or lawful permanent resident spouse or parent. The Applicant asserts that denial of the application would result in extreme hardship to his U.S. citizen spouse. The record reflects that the Applicant's spouse was born in Pakistan but has lived in the United States since 1999 and became a U.S. citizen in 2004. She met

1 In October 2016, during the Applicant's interview in connection with his application to adjust status, the Applicant denied having been arrested; however, records reflect that he was arrested for domestic battery earlier that year.

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the Applicant during a v1s1t to Pakistan in 2013. The Applicant entered the United States in November 2015 on a fiance visa, and the couple married in 2015. They have one child, born in and they are expecting their second child to be born in

The Applicant's spouse states that she intends to remain in the United States because she, her parents, and her siblings have lived here for 20 years, and she is responsible for her mother' s care. Further, she claims she is no longer accustomed to the culture in Pakistan, and she wants her children to have the greater opportunities available in the United States.

If the Applicant is not permitted to remain in the United States, his spouse claims that she will face emotional hardships due to the loss of his companionship and support, and this hardship will be magnified due to the stress she already bears as the caretaker for her mother and child. She states that because her mother cannot drive and sutlers from various medical conditions, she is responsible for taking her mother to medical appointments and errands, monitoring her medical treatments at home, and managing her bank accounts and expenses. She also states that she is the primary caretaker for her mother because her father works in Alaska and none of her other siblings live in the state, with the exception of a sister who is estranged from the family.

The Applicant asserts that his spouse's stress of caring for her mother and child, in addition to her worries about his immigration status and her new pregnancy, has led to his spouse's depression and anxiety. They fear that, if they are separated, then her mental health will further deteriorate. In support of the claimed emotional hardships, the Applicant's spouse describes their closeness, her love for him, and her fears for their future . The Applicant submits a letter from a clinical social worker who states that she is treating the Applicant's spouse tor depression and anxiety and that the symptoms of her conditions are interfering with her daily activities.

With respect to medical hardship, the Applicant's spouse states that she has Hashimoto's disease, a chronic autoimmune disorder that causes her fatigue, weakness, and pain. and which requires medication and regular consultation with a specialist. She states that she also experiences recurring migraines, for which she takes additional medication. The Applicant asserts that both of these conditions also exacerbate his spouse's emotional struggles, as their symptoms interfere with her ability to be an effective caretaker, and therefore she is at heightened risk of worsening emotional hardship without his support.

The Applicant also states that his spouse will face financial hardship if he leaves the United States. He states that his spouse was laid off from her job in February 2016 and has not worked since due to her difficult pregnancy and recovery from childbirth. She remains unable to work, having been placed on bed rest due to risks associated with her current pregnancy. According to the letter from her physician, she is expected to remain on bed rest until she delivers in Thus. the Applicant is the sole income earner tor the family, and his monthly wages are approximately $1560. He states that he and his spouse have increasingly relied on credit cards to meet their monthly expenses of $2780, including the $980 mortgage payment on their home. They claim that. if the Applicant is forced to move to Pakistan, then his spouse would have to tlnd work to support herself

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and their two young children, as well as pay for childcare. Additionally, they claim that she will likely have to support the Applicant as well, since the employment and economic prospects in Pakistan are poor. In support of the claimed financial hardship, the Applicant has submitted credit card statements reflecting balances over $17,000; documentation of his spouse's eligibility and receipt of need-based government assistance; a news article showing that childcare costs in Nevada are among the highest in the country; statements reflecting their monthly expenses; and tax records showing a combined income of approximately $22,000 in 2016.

Having reviewed and considered all the evidence, we tind that the emotional and financial impact of separation would rise to the level of extreme hardship for the Applicant's spouse.

B. Discretion

We now consider whether the Applicant merits a waiver of inadmissibility as a matter of discretion. The burden is on the Applicant to establish that a waiver of inadmissibility is warranted in the exercise of discretion. Matter of Mendez-Moralez. 21 I&N Dec. 296, 299 (BIA 1996). We must balance the adverse factors evidencing the Applicant ' s undesirability as a lawful permanent resident with the social and humane considerations presented to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. !d. at 300 (citations omitted). The adverse factors include the nature and underlying circumstances of the inadmissibility ground(s) at issue, the presence of additional significant violations of immigration laws, the existence of a criminal record, and if so, its nature, recency and seriousness, and the presence of other evidence indicative of bad character or undesirability. !d. at 301. The favorable considerations include family ties in the United States, residence of long duration in this country (particularly where residency began at a young age), evidence of hardship to the foreign national and his or her family , service in the U.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 good character. !d.

The positive factors in this case include the hardship that the Applicant's spouse would experience in the Applicant's absence; his family ties in the United States, including his spouse and daughter, as well as a second child expected this year; and his gainful employment, including evidence of taking on multiple jobs to help support his family.

The negative factors in this case include his arrest and his false statements to an immigration officer during his adjustment of status interview. In 2016, the Applicant was arrested and charged in Nevada with Battery/Domestic Violence after an incident involving his spouse. He pled not guilty to this charge, and it was later amended to disturbing the peace. The Applicant pled guilty in the

Municipal Court to the amended charge and was sentenced to three days in jail, with credit for time served. The Applicant ' s arrest is a serious adverse factor, especially when considering that the arrest stemmed from an incident in which his spouse-the qualifying relative for purposes of his waiver application-was the victim who called the police. We acknowledge that his spouse writes in support of his waiver application. However, the Applicant has not provided evidence of the

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circumstances underlying his arrest, such as the arrest report previously requested during the adjudication of his application to adjust status. Nor has he submitted detailed affidavits from his spouse or responding law enforcement officials describing what occurred during the incident. His spouse expresses her regret at having involved the police, but this regret does not clarify or mitigate the circumstances that led her to call for help. For these reasons, we are unable to assess the nature and severity ofthe Applicant's arrest.

Further, the Applicant denied having ever been arrested during his adjustment interview with the immigration officer. In his statement supporting his waiver, he expresses remorse for this misrepresentation, but he does not express responsibility or remorse for the actions that led to his arrest.

The Applicant's misrepresentation of his arrest history, as well as the lack of information about his underlying actions, demonstrate a continued lack of candor and raise questions about his credibility, genuine rehabilitation, and general desirability as a resident of the United States. When looking at the totality of the evidence, the unfavorable factors outweigh any favorable ones such that a favorable exercise of discretion is not warranted.

III. CONCLUSION

The Applicant has not met the burden of proving eligibility for a waiver of inadmissibility. Although he has shown that denial of the waiver would result in extreme hardship to his spouse. he has not shown that he merits a favorable exercise of discretion.

ORDER: The appeal is dismissed.

Cite as Matter ofN-M-, ID# 591772 (AAO Sept. 29, 2017)

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