U.S. Citizenship and Immigration Services

MATTER OF M-A-R-

Non-Precedent Decision of the Administrative Appeals Office

DATE: MAY23,2018

APPEAL OF NEW ARK, NEW JERSEY FIELD OFFICE DECISION

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

The Applicant, a native and citizen of Colombia, currently residing in the United States, has applied to adjust status to that of a lawful permanent resident (LPR). 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 for fraud or misrepresentation and seeks a waiver of that inadmissibility. See Immigration and Nationality Act (the Act) section 212(i), 8 U.S.C. § ll82(i). U.S. Citizenship and Immigration Services (USCIS) 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 Newark, New Jersey Field Office found the Applicant to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Act, 8 C.F.R. § ll82(a)(6)(C)(i), both for having previously obtained nonimmigrant admission to the United States through "the use of a photo­substituted passport, and for using a fraudulent Form I-94, Departure Record, to establish his admission to the United States in a subsequent application for adjustment of status. The Director denied the waiver application after determining that the Applicant had not established that the denial of admission would result in extreme hardship to his U.S. citizen spouse or mother, his qualifying relatives in this matter.

On appeal, the Applicant asserts that he is eligible for a waiver under section 212(i) of the Act as the evidence he has submitted for the record establishes that both his spouse and mother will suffer extreme hardship if he is not allowed to remain in the United States. He also asserts that he warrants a favorable exercise of discretion.

Upon de novo review, we· will dismiss the appeal.

I. LAW

Any foreign national who, by fraud or the willful misrepresentation of 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.

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There is a waiver of this inadmissibility if the refusal of admission would result in extreme hardship to the U.S. citizen or LPR spouse or parent of the foreign national. If the foreign national demonstrates the existence of the required hardship, then he or she must also show that USCIS should favorably exercise its discretion and grant the waiver. 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." Maller of Cervantes-Gonzalez. 22 l&N Dec. 560, 565 (BIA 1999) (citation omitted). Extreme hardship exists "only in cases of great actual and prospective injury." Maller oj'Ngai, 19 l&N Dec. 245, 246-47 (BIA 1984). An applicant must demonstrate that claimed hardship is realistic and foreseeable. !d; see also Matter (Jj' Shaughnes.1y. 12 l&N Dec. 810, 813 (BIA 1968) (tlnding 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 insufficient alone to constitute extreme hardship. Maller of Pilch, 21 l&N Dec. 627 (BIA 1996) (citations omitted); but see Maller of' Kao and Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Maller 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 iri themselves, must be considered in the aggregate in determining whether extreme hardship exists." Matter oj'lge, 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. Mauer of Gonzalez Recinas, 23 I&N Dec. 467,471 (BIA 2002).

II. ANALYSIS

The issues on appeal are whether the Applicant has established extreme hardship to a qualifying relative and whether he merits a favorable exercise of discretion. The Applicant does not contest his inadmissibility, a finding supported by the record.

To overcome inadmissibility under section 212(i) of the Act, an applicant must demonstrate that the denial of the waiver application will result in extreme hardship to a qualifying relative(s). An applicant may show extreme hardship in two scenarios: I) if the qualifying relative remains in the United States separated from the applicant and 2) if the qualifying relative relocates overseas with the applicant. Demonstrating extreme hardship under both of these scenarios is not required if the applicant's evidence demonstrates that one of these scenarios will result from the denial of the waiver. An applicant may meet this burden by submitting a statement from the qualifying relative certifying under penalty of perjury that he or she will relocate with the applicant, or will remain in the United States, if the applicant is denied admission. 9 USCIS Policy Manual B 4(B), https://www.uscis.gov/policymanual.

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In the present case, the record contains no statement from the Applicant's spouse or mother indicating a clear intent to remain in the United States or relocate to Colombia if the waiver application is denied. The Applicant must therefore establish that, if he is denied admission, his qualifying relative(s) will experience extreme hardship both upon separation and relocation.

A. Hardship upon Separation

I. Hardship to the Applicant's Spouse

In the 2017 statement she has provided on appeal and in her two prior statements, the Applicant's spouse indicates that she is mentally and emotionally exhausted by the Applicant's immigration situation. She asserts that, if the Applicant must return to Colombia, she will experience emotional hardship and that starting a family will not be a realistic possibility. She also contends that she and the Applicant currently share responsibility for paying their bills and that, in his absence, she will experience financial hardship, which will result in her defaulting on her student loans and her inability to pay her monthly bills. She further states that the company for which she works as a contractor is planning on reducing its workforce and that this reduction will, most likely, mean that she will be out of work for several months and that, without the Applicant, she will have no financial support or health coverage. Additionally, the Applicant's spouse asserts she will have the added financial burden of supporting the Applicant in Colombia as it is an underdeveloped country where poverty arid unemployment are ongoing problems.

In support of the Applicant's spouse's claims, the record contains the following evidence: a copy of a 2017 FedLoan statement from the U.S. Department of Education; printouts of online articles relating to student loan debt and default; a 2017 car loan statement; several of the Applicant's spouse's 2017 earnings statements; her tax returns for 2015 and 20 16; two 2017 credit card statements; an auto insurance premium for the period October 22, 2017, to April 22, 2018; documentation of a 2017 down payment on her car; a copy of her 2016-2017 apartment lease; a copy of a 2016-2017 renter's insurance policy; documentation of a range of monthly household expenses from 2014 through 2017; an October 25, 2017 report from the company where the Applicant's spouse claims employment that indicates it is planning to reduce the company's "headcount" to less than 60 people; and a printout of a 2017 online report on the minimum wage in Colombia.

The preceding evidence does not, however, establish the financial hardship that the Applicant's spouse claims she will experience if the waiver application is denied.

Although we note the monthly expenses documented by the record, including the Applicant's spouse's student loan debt, ·we do not lind them to exceed her income and the Applicant has provided no comprehensive list of the expenses that his spouse will face in his absence in support of her claim. Based on the record before us, the Applicant's spouse's income, as documented by her 2016 Form W-2, Wage and Tax Statement, and the 2017 earnings statements found in the record, appears sufficient to meet her tinancial needs should the Applicant be denied admission to the United States. We also note that, as discussed below, the record does not establish that the

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Applicant, an experienced project engineer, will be unable to obtain employment upon his return to Colombia and continue to provide his spouse with financial assistance from outside the United States.

We further do not find the record to establish that the Applicant 's ability to support herself will be jeopardized by the downsizing of the biopharmaceutical company where she works. The record contains a 2017 employment letter from a professional staffing company that indicates it employs the Applicant' s spouse as a contractor and that she has been working at the biopharmaceutical company since June 2016, information that is supported by the Applicant's spouse's 2016 Forms W-2.1 As a result, even though· we note the submitted Oc,tober 25, 2017 report that establishes the biopharmaceutical company's intent to reduce its staff, it is not clear that the Applicant's spouse, as a contractor, is considered stan: such that the downsizing of the company will result in the "termination of its contract with her employer, or that the elimination of her position will leave her without any income since her employer may be able to provide her with a new assignment.

Further, the record does not demonstrate that the Applicant's spouse will be required to support the Applicant if he returns to Colombia. Although we note that the record provides country conditions information on the minimum wage in Colombia, the Applicant does not claim and no evidence indicates that, if he returns to Colombia, he will be seeking minimum-wage employment. Instead, the record reflects that the Applicant holds a bachelor of science degree in engineering technology from the is pursuing graduate studies in his field, and has job experience as a project engineer. As a result, it appears more likely that, should he be required to return to Colombia, he will seek an engineering j ob and no evidence in the record demonstrates that he will have difficulty obtaining such employment or that it will not provide him with sufficient income to meet his financial needs.

Additionally, although we acknowledge the Applicaryt's spouse ' s claims regarding the emotional hardship she will experience If she and the Applicant are separated, including their inability to start a family, no evidence has been submitted to establish the nature or effect of such hardship on the Applicant's spouse's emotional or mental health.

Accordingly, we do not find the record to demonstrate that the Applicant's spouse will experience extreme hardship if the waiver application is denied and she continues to reside in the United States without him.

1 The .record reflects that prior to June 20 16, the Applicant's spouse was paid directly by this same biopharrnaceutical company.

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2. Hardship to the Applicant's Mother

In the statements she has provided for the record, the Applicant' s mother contends that she is counting on the Applicant to help her through her old age, partic1;1larly as her health has started to deteriorate. She reports that she suffers from lumbago with thoracic scol iosis and degenerative disc disease, which result in chronic back pain and make it difficult to walk. She states that, according to her doctors, she will either have to have surgery or use a cane. The Applicant's mother also maintains that her back problems make it difficult for her to obta in employment that requires standing or walking. She further indicates that she has recently has been suffering from constant chest pain, which has resulted in her spending one night in the emergency room and missing two days of work. She contends that the Applicant' s situation is creating a great deal of stress and anxiety in her life. ·

In her statements, the Applicant's mother also maintains that she will experience financial hardship if the Applicant cannot remain in the United States since her husband has developed problems with his right knee. As a result, she states, he is not earning any income and, as he does not qualify for Medicare, the costs of hi s medical care have taken a toll on their tina'nces.2 She indicates that she and her husband are struggling financially as her two part-time jobs provide only 35-38 hours of employment per week and pay only the minimum wage. She contends that she and her husband depend on the Applicant to send them money for such things as their telephone bill, gas money, and random expenses.

Additionally, the Applicant's mother asserts that she will suffer emotionally if the Applicant is required to return to Colombia as he is her only -son. She states that she left Colombia in order to provide a better future tor him. She also points out that he has been able to obtain a good education in the United States, and contends that it would be a shame if the resources invested in her son end up being wasted. She further contends that the emotional hardship she will experience as a result of their separation will be exacerbated by the fact that the Applicant will be likely to return to

Colombia, the city with the highest rate of crime in Colombia, since the only person he knows in Colombia, his father, lives there. ·

• In support of the above claims, the record contains the following evidence: a 2017 di scharge plan issued to the Applicant's mother by the informational material on the causes of chest pain; the results of an electrocardiogram performed on the Applicant's mother; a March 2017 letter from the Applicant's mother's doctor diagnosing her with lumbago, thoracic scoliosis, and degenerative disc disease; a radiology consultation report relating to the Applicant's stepfather's knee; physical therapy and lab orders for the stepfather's knee; a copy of the discharge instructions issued to the Applicant's stepfather following his knee arthroscopy; charges tor various procedures relating to the stepfather's knee during May and June 2017; a billing

2 Although the Applicant's mother indicates that her husband is not eligible for Medicare, we note that the medical bills in the record indicate that some of the healthcare costs relating to the medical treatment he has received for his knee have been covered by

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statement of account from _ for x-rays and medical visits in June and July 2017 relating to the Applicant's stepfather's knee; the Applicant's mother's and stepfather's 2016 tax return; documentation of the Applicant's mother's employment; documentation of the financial assistance that the Applicant has provided his mother and stepfather in the wake of Hurricane Irma, including his payment of their rent in November 2017; documentation of the Applicant ' s payment of his mother's and stepfather's airfare and other travel-related costs during the holidays, as well as periodic payment of their telephone bills and gas expenses; receipts for two money transfers sent by the Applicant to his father in , Colombia; and country conditions materials on Colombia, including the section on Colombia from the U.S . Department of State ' s Country Reports on Human Rights Practices for 20 16; a 2015 Human Rights Watch report on conditions in Colombia, as well as several print and online articles on the violence prevalent in

However, the above evidence does not demonstrate the medical, financial, and emotional hardships that the Applicant's mother claims she will experience upon separation.

Although the record establishes that the Applicant's mother has been diagnosed with lumbago, thoracic scoliosis, and degenerative disc di sease, and that she was briefly hospitalized to r chest pains, no evidence indicates the severity of her medical conditions or how they affect her ability to function, including her ability to work. While the Applicant's mother states that her doctors have told her that she will either have to have surgery or use a cane to walk as a result of her back problems, the record does. not support this claim. Instead, we find the March 2017 medical report issued by the Applicant's mother's doctor to indicate that the only treatment he has recommended for her back problems is a core back exercise program and a PRN (when needed) NSAID (a nonsteroidal anti-inflammatory drug, e.g., aspirin or ibuprofen), or Tylenol for symptomatic flares. The report also states that no findings support a "neurosurgical referral or addi tional imaging," and that additional appointments will be scheduled when they are needed. We further note that the medical documentation relating to the chest pains experienced by the Applicant' s mother offers no information about her condition beyond advising her to follow up with her own doctor within one week and the record does not provide the results of this visit. Accordingly, we do not find the record to demonstrate that the Applicant's mother suffers fro~ any medical conditions that limit her abi lity to meet her daily responsibilities or that will be negatively affected by the Applicant' s departure from the United States.

The record also does not establish that the Applicant's mother is dependent on the Applicant's financial support. While we acknowledge the tinancial assistance that the Applicant provided to his mother and stepfather in the wake of Hurricane hma, his payment of their travel costs during the previous holiday season, and his periodic coverage of such expenses as their telephone bills and gasoline costs, we do not find such assistance to establish that they require his financial support on an ongoing basis. Neither does the record contain a listing of their monthly expenses that supports such a conclusion. Further, we note that, in 2016, a year in which the Applicant's father was working, he and the Applicant's mother reported combined income of $34,364, an amount well above the 2018 federal poverty guideline of $16,460 for a family of two, and the record does not

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demonstrate that the Applicant's stepfather, having had knee surgery, is not, once again, able to work and assist the Applicant:s mother in meeting their financial obligations. Although the Applicant' s mother claims that her husband will require a knee replacement this year, no evidence establishes that this is the case or that he continues to have problems with his knee. Accordingly, the record does not establish that the denial of the Applicant's. admission to the United States wil l result in tinancial hardship for his mother:

However, even if the record did establish the financial dependence of the Applicant; s mother on the Applicant, the record, as previously discussed, contains no evidence that demonstrates he will not be able to obtain employment in Colombia that will allow him to provide her with financial assistance from outside the United States.

Finally, while we acknowledge the stress and anxiety that the Applicant's mother indicates she is experiencing as a result of the Applicant's immigration situation and his likely return to Buenaventura in the event he is denied admission to the United States, we do not find the record to demonstrate the impact of separation on her emotional or mental health. The Applicant's mother's claims are not, by themselves, sufficient to meet the Applicant's burden of proof in this matter and the Applicant has submitted no supporting evidence that addresses how his mother's emotional or mental health will be affected by separation.

For these several reasons, we do not find the record to establish that the Applicant 's mother will experience extreme hardship if the waiver application is ·denied and she remains in the United States.

Accordingly, the Applicant has not demonstrated that a qualifying relative will experience extreme. hardship if he is required to depart the United States as a result of his inadmissibility .

. ~. B. Hardship upon Relocation

On appeal, the Applicant contends that if the emotional, financial , and medical toll of relocation on his spouse and mother are viewed in light of the instability and violence in Colombia, the record establishes that both will experience extreme hardship if the waiver application is d~ni ed .

The Applicant does not, however, identify the emotional, financial, or medical hardships that his mother will experience if she returns to Colombia and she does not address the possibility of relocation in the statements she has provided for the record. Accordingly, the Applicant has not established that his mother will experience extreme hardship upon relocation.

In her statements, the Applicant's spouse asserts that her personal safety will be at risk if she relocates with the Applicant to one of the most violent cities in Colombia, and, further that, while she speaks Spanish, there is no future for her in a country where more than 80 percent of the population lives in poverty, the unemployment rate exceeds 30 percent, and the minimum wage is the equivalent of $245.75 · per month . . She also states that, while she has a master's degree in industrial and organizational psychology, the high unemployment rate in

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Colombia, its low minimum wage, and the fact that she is not from Colombia will make it unlikely that she will find good employment, making it nearly impossible to repay her student loans. As a result, she contends, relocation will mean that she will have nothing to return to in the United States "except damaged credit and debt." The Applicant's spouse also states that relocation to Colombia will require her to leave her parents, whom she assists in resolving their problems, and will add to her emotional distress.

We will not, however, consider the Applicant's spouse's claims. The Applicant has not demonstrated that his spouse will experience extreme .. hardship in the event of separation, and the record, as previously indicated, does not establish her intent to relocate with him to Colombia if the waiver application is denied. As a result, we cannot conclude that the hardships she claims will actually result from the denial of the waiver application. Therefore, the Applicant has also not demonstrated extreme hardship to his spouse upon relocation.

The record does not establish that the denial of the waiver application will result in extreme hardship to a qualifying relative. As such, no purpose is to be served in determining whether the Applicant merits a waiver as a matter of discretion.

Ill. CONCLUSION

The record retlects that the Applicant is inadmissible under section 212(a)(6)(C)(i) of the Act for having sought an immigration benefit through fraud or willful misrepresentation. For the reasons discussed, the record does not establish that the denial of the waiver application will result in extreme hardship to a qualifying relative. Accordingly, the application will remain denied.

ORDER: The appeal will be dismissed.

Cite as Matter of M-A-R-, 10# 1298496 (AAO May 23, 2018)

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