MATTER OF T-A-P-

Non-Precedent Decision of the Administrative Appeals Office

DATE: NOV. 23, 2016

APPEAL OF TAMPA, FLORIDA FIELD OFFICE DECISION

APPLICATION: FORM 1-601, APPLICATION FOR WAIVER OF GROUNDS OF INADMISSIBILITY

The Applicant, a native and citizen of Poland, seeks a waiver of the ground of inadmissibility for a crime involving moral turpitude. See Immigration and Nationality Act (the Act) section 212(h), 8 U.S.C. § 1182(h). A foreign national seeking to be admitted to the United States as an immigrant or to adjust status to lawful permanent residence must be admissible or receive a waiver of inadmissibility. 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, Tampa, Florida Field Office, denied the application, finding that the Applicant was inadmissible for a crime involving moral turpitude and concluding that the Applicant had not established extreme hardship to his spouse or child if he were denied admission to the United States.

The matter is now before us on appeal. The Applicant contends that he has carried his burden of proving extreme hardship and that the Director therefore erred in denying his application.

Upon de novo review, we will dismiss the appeal.

I. LAW

The Applicant is seeking to adjust status to lawful permanent resident and has been found inadmissible for a crime involving moral turpitude. Specifically, the record establishes that in 2006 the Applicant was convicted of making false statements on a bank credit application. Section 212(a)(2)(A) of the Act, 8 U.S.C. § 1182(a)(2)(A), provides that any foreign national convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime is inadmissible.

Individuals found inadmissible under section 212(a)(2)(A) of the Act may seek a waiver of inadmissibility under section 212(h) of the Act. Section 212(h) of the Act provides for a discretionary waiver if denial of admission would result in extreme hardship to a United States citizen or lawful permanent resident spouse, parent, son, or daughter.

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Matter of T-A-P-

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 ~pon the facts and circumstances of each case." Matter of 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 ofNgai, 19 I&N Dec. 245,246-47 (BIA 1984). An applicant must demonstrate that claimed hardship is realistic and foreseeable. !d.; see also Matter of Shaughnessy, 12 I&N Dec. ~10, 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 insufficient alone to constitute extreme hardship. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996) (citations omitted); but see Matter of 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 of Ige, 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 Applicant does not contest his inadmissibility for a crime involving moral turpitude, a finding supported by the record. The issue on appeal is whether he has established that his spouse or child would suffer extreme hardship, whether they remain in the United States without him or accompany him to Poland, and if so, whether the Applicant merits a favorable exercise of discretion.

The evidence in the record, considered both individually and cumulatively, does not establish that the Applicant: s spouse or child would experience extreme hardship, whether they remain in the United States or relocate to Poland. The record does not contain sufficient evidence to establish that the hardship claimed rises above the common consequences of removal or refusal of admission to

. the level of extreme hardship. Because there is no showing of extreme hardship, we will not address whether the Applicant merits a waiver as a matter of discretion.

In this case, the Applicant must demonstrate that denial of the application would result in extreme hardship to his U.S. citizen spouse or child, born in

The Applicant clafmed in a statement that his spouse and four-year-old child would suffer financial, physical, and emotional hardship in his absence. Regarding financial hardship, he maintained that his spouse's income of $28,000 is not enough to cover household and childcare expenses. He stated that after deducting monthly childcare expenses of $580 and bills totaling $1 ,825 from her income, she is left with $508 for groceries and medical bills. In support of his assertion, he provided his

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(b)(6)

Matter of T-A-P-

spouse's September 2014 wage statement, which shows that her gross income was $33,540 through September 7, 2014, more than $28,000 annually as the Applicant claims. The record contains no further evidence of the spouse's current income or of the family's expenses, and the Applicant has not established that his spouse's income would be insufficient to cover her household expenses and debt in his absence.

Further, although the Applicant indicates that his spouse will have medical expenses, we cannot -determine from the letter from her chiropractic physician, which is dated a year before the filing of the appeal, whether the Applicant's spouse will need further chiropractic treatment. No other evidence of medical treatment since that time has been submitted on appeal. Were she to need additional treatment, which has not been documented, the Applicant has not established that he will not be able to provide financial assistance from abroad. His resume reflects that he was gainfully employed in Poland, as a project engineer from 2007 to 2012, as a petrochemical entrepreneur from 2002 to 2007, and as an industrial production technologist/mechanical designer from 1997 to 2002, before he came to the United States.

Regarding physical hardship, the Applicant and his spouse asserted that she has back problems and cannot lift her child and needs his assistance. They indicated that the Applicant was a stay-at-home father the first 20 months of their child's life but now works outside their home and takes care of their child in the afternoons and evenings when the Applicant's spouse is at work or in class. They declared that the Applicant has a close relationship with his son and that he is the one who lifts their child and does the household chores.

In support to the physical hardship claim, the Applicant submitted an August 2014 letter from his spouse's employer stating that she is a waitress and has a workplace accommodation due to back

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pain. The September 2014 letter from her chiropractic physician indicated that the Applicant's spouse had a lumbar spine injury in 2009 from a motor vehicle accident, and her symptoms, including bouts of low back pain, fatigability, digestive problems, and ulcers, have not been completely resolved. However, the letters from her employer and chiropractic physician are dated a year before the appeal was filed and therefore do not contain current information about her health condition. As such, we cannot determine the severity of her condition and how she or her child will be impacted by her spouse's absence.

The Applicant and his spouse indicate that long-term separation from the Applicant will cause emotional hardship to the spouse and child. While we acknowledge the contentions in the record that the Applicant's spouse and child will experience emotional hardship were they to remain in the United States while the Applicant relocates abroad, the record does not establish the severity of this hardship or the effects on their daily lives. When we consider the evidence in the record of hardship in the aggregate, it does not establish that the Applicant's spouse or child would suffer extreme hardship were they to remain in the United States without the Applicant.

Concerning relocation, the Applicant's spouse asserted that she and her child would be adversely affected by the air quality in which is where they would live with her in-laws, and that it

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Matter of T-A-P-

would be unsafe to live with her father-in-law because he forgets to turn off the stove and to close the door of the house. His spouse further indicated that she would be unable to complete her pre­nursing program in the United States.

In support of hardship, the Applicant provided a 2014 letter from a state college in Florida, which showed his spouse's enrollment in three credit hours for the fall 2014 semester, but there is no evidence of her current enrollment. The Applicant submitted documentation about air quality, but it is three years 9ld and does not contain information on current air quality and what specific hardships the Applicant's spouse or child would encounter as a result. Regarding the hardship of residing with her in-laws, the record shows that the Applicant was employed in Poland, as detailed above, and the Applicant has not established that he would not be able to resume gainful employment abroad and be able to support his spouse and child. In addition, the Applicant's country of citizenship, Poland, is also his spouse's native country. When we consider the evidence in the record in the aggregate, it does not establish that the Applicant's spouse or child would suffer extreme hardship were they to relocate abroad.

As the Applicant has not demonstrated extreme hardship to a qualifying relative or qualifying relatives, we need not consider whether the Applicant warrants a waiver in the exercise of discretion.

III. CONCLUSION

The Applicant has the burden of proving eligibility for a waiver of inadmissibility. See section 291 of the Act, 8 U.S.C. § 1361. The Applicant has not met that burden. The evidence in the record, considered both individually and cumulatively, does not establish extreme hardship to a qualifying relative.

ORDER: The appeal is dismissed.

Cite as Matter ofT-A-P-, ID# 121510 (AAO No,v. 23, 2016)

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