MATTER OF M-K-

Non-Precedent Decision of the Administrative Appeals Office

DATE: JAN. 5, 2016

APPEAL OF PHILADELPHIA FIELD OFFICE DECISION

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

The Applicant, a native and citizen of Lithuania, seeks a waiver of inadmissibility. See Immigration and Nationality Act (the Act) § 212(i), 8 U.S.C. § 1182(i). The Director, Philadelphia Field Office, denied the application. The matter is now before us on appeal. The appeal will be dismissed.

The Applicant was found to be inadmissible under section 212(a)(6)(C)(i) of the Act, 8 U.S.C. § 1182(a)(6)(C)(i), for procuring a benefit under the Act through fraud or material misrepresentation. The Applicant is the beneficiary of an approved Form I-130, Petition for Alien Relative, which his U.S. citizen spouse filed on his behalf.

The Director, in a decision dated November 13, 2014, concluded that the Applicant had not established extreme hardship to a qualifying relative and denied the Form I-601, Application for Waiver of Grounds oflnadmissibility, accordingly.

On appeal, the Applicant states that he is not inadmissible under section 212(a)(6)(C)(i) of the Act, as he believed he had a valid student visa and did not knowingly participate in a fraudulent student program. He also asserts that he is a victim of the student-visa fraud scheme himself. In the alternative, he states that the Director abused her discretion by not considering the hardship his spouse would experience in the aggregate and that his spouse would suffer extreme hardship if his waiver application is denied.

The record includes, but is not limited to: identity and relationship documents for the Applicant and his spouse, the Applicant's mother's medical records, financial records, statements from the Applicant and his spouse, arrest and court records, photographs, a fact sheet on the principles of drug addiction treatment, letters from a treatment facility, and school records. The entire record was reviewed and considered in rendering a decision on the appeal.

Section 212(a)(6)(C) states, in pertinent part:

(i) Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation,

(b)(6)

Matter of M-K-

or admission into the United States or other benefit provided under this Act is inadmissible.

The record shows that the Applicant initially entered the United States in 2003 as an H-4 nonimmigrant. He changed his visa status to an F -1 nonimmigrant student by enrolling in an English as a Second Language (ESOL) program at He was issued his first Form I-20, Certificate of Eligibility for Nonimmigrant F-1 Student Status, on September 20, 2004. He received extensions to continue studying from 2004 through 2010. The Form I-20 approved in 2009 indicated thatthe Applicant changed his course of study from ESOL to an academic program. The last Form l-20 issued on October 5, 2010, indicated that he was transferring to a different school, to attend another ESOL program. The Applicant's student status was officially terminated on January 14, 2012. On 2012, the signatory on several of the Applicant's Form I-20s pled guilty to four counts of visa fraud in connection with a fraud scheme involving foreign students at

The Applicant married a U.S. citizen on 2011, and filed an I-485, Application to Register Permanent Residence or Adjust Status, on December 28, 2011. The Applicant was deemed inadmissible due to misrepresentations he made on his Forms I-20 that he was pursuing a full course of study.

On appeal, the Applicant asserts that he is not inadmissible, as he had no knowledge of his school's fraudulent activities, he had no direct involvement in the fraud involving his school, and he attended class when he was instructed to do so.

For a misrepresentation to be willful, it must be determined that the applicant was fully aware of the nature of the information sought and knowingly, intentionally, and deliberately misrepresented material facts. See generally Matter of G-G-, 7 I&N Dec. 161 (BIA 1956). To be willful, a misrepresentation must be made with knowledge of its falsity. 7 I&N Dec. at 164. To determine whether a misrepresentation was willful, we examine the circumstances as they existed at the time of the misrepresentation, and we "closely scrutinize the factual basis" of a finding of inadmissibility for fraud or misrepresentation because such a finding "perpetually bars an alien from admission." Matter ofY-G-, 20 I&N Dec. 794, 796-97 (BIA 1994); see also Matter ofTijam, 22 I&N Dec. 408,425 (BIA 1998) and Matter of Healy and Goodchild, 17 I&N Dec. 22, 28-29 (BIA 1979).

The record contains the Applicant's Form h20, which he signed, certifying he seeks to enter or remain in the United States solely for the purpose of pursuing a full course of study. By certifying each Form I-20, the Applicant asserted he had knowledge of the contents of the form and that the contents were truthful. Each time the Applicant signed a Form I-20, he certified that he had read the form and agreed to comply with the terms and conditions of his admission and those of any extension of stay. Because U.S. Citizenship and Immigration Services (USCIS) applications are signed "under penalty of perjury," an applicant, by signing and submitting the application or materials ·submitted with the application, is attesting that his or her claims are truthful. Policy Manual Volume 8, Admissibility, Part J- Fraud and Willful Misrepresentation, Chapter 3(D)(l ).

2

(b)(6)

Matter of M-K-

According to the record, the Applicant claimed to attend from 2004 to 2010. The record also includes evidence showing that individuals associated with engaged in visa fraud by issuing Forms I-20 to foreign students who did not actually attend classes. The record shows that did not offer a sufficient number of classes to provide students with the opportunity to take a full course of study. The Department of Homeland Security's investigation resulted in the criminal prosecution of several school officials for visa fraud. 1

The Applicant's statement that he did not knowingly participate in any of his school's fraudulent activities is not credible in light of school attendance records, which show he did not attend classes over a seven-month period. In light of the record, we find that the Applicant made knowing material misrepresentations to a U.S. government official to obtain a benefit under the Act, nonimmigrant student status, and as a result is inadmissible under section 212(a)(6)(C)(i) of the Act. The evidence is sufficient to establish that the Applicant knowingly represented to a U.S. government official that he intended to remain in the United States temporarily and solely for the purpose of pursuing a full course of study, but he did not do so.

Moreover, although the Applicant asserts that he acted on the advice of his attorney and instructor, he has not shown that he was incapable of exercising proper judgment. A person cannot deny responsibility for any misrepresentation made on the advice of another unless it is established that the person lacked the capacity to exercise judgment. USCIS Policy Manual, Volume 8 -Admissibility, Part J- Fraud and Willful Misrepresentation, Chapter 3(C)( 4) (citation omitted).

Section 212(i) of the Act, which provides a waiver for fraud and material misrepresentation, states that:

(l) The Attorrtey General [now the Secretary of the Department of Homeland Security (Secretary)] may, in the discretion of the [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established to the satisfaction of the [Secretary] that the refusal of admission to the United States of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

The Applicant must demonstrate that denial of the application would result in extreme hardship to a qualifying or relatives. In this case, the qualifying relative is the Applicant's U.S. citizen spouse. 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).

1 On 2012, an individual considered the "Primary Designated School Official" pled guilty to four counts of visa fraud in connection with a fraud scheme involving foreign students allegedly enrolled in classes at the

2012),

3

Matter of M-K-

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 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 of Ngai, 19 I&N Dec. 245, 246-47 (BIA 1984), but hardship "need not be unique to be extreme." Matter of L-0-G-, 21 I&N Dec. 413, 418 (BIA 1996). 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); see also Matter of Shaughnessy, 12 I&N Dec. 810 (BIA 1968) (separation of family members and financial difficulties alone do not establish extreme hardship); 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).

The Applicant asserts that if he and his spouse are forced to separate, his spouse would suffer emotional, medical, and financial hardship. The Applicant asserts that his spouse is currently undergoing treatment for drug addiction and that upon her release in December 2014, she will require his emotional support. To corroborate his claim, he submits two letters from the facility where his spouse is receiving treatment. The first letter states that the Applicant's spouse voluntarily came to their facility in June 2014. The second letter states that the Applicant's spouse "will require continuous support" from the Applicant, and that her "sobriety "relies solely on [the Applicant's] support and the support of her family."

The Applicant's spouse states that the Applicant works to support her, and she stays at home to help the family, specifically his mother, who she says is extremely sick with cancer and her own brother, who she states is a recovering heroin addict. She states that she cares for the Applicant's mother, who requires assistance with daily living activities, from 8:00am to 5:00pm daily. She posits that if the Applicant leaves and she must find work, she would have to pay for his mother's daily care. She states that she also attends night school and because she is not working presently, she cannot manage without the Applicant's income.

The record contains the Applicant and his spouse's 2012 Form 1040, reflecting that his spouse supported the family that year, earning their reported income of $35,327. The record lacks other, more recent, financial documentation to show the family's earnings and expenses. Although the Applicant's spouse asserts that the Applicant supports her financially, the record lacks corroborative evidence to show whether he is currently employed and, if he earns income, how he supports his spouse. Moreover, the Applicant submits no evidence to show whether he would be able to earn income in Lithuania and from there contribute financially to his family in the United States. Finally, the record lacks detailed and corroborative information concerning the family's expenses. Going on

4

Matter of M-K-

record without supporting documentary evidence i~ not sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter ofTreasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972))(emphasis added).

The Applicant's spouse likely would suffer emotionally due to separation from the Applicant, but the record lacks sufficient evidence to establish that this alone would rise to the level of extreme hardship. While the Applicant asserts that his spouse needs his financial support, the record does not demonstrate that he has financially supported her. The record contains insufficient documentary evidence of emotional, financial, medical, or other types of hardship that, considered in the aggregate, establishes that the Applicant's spouse would suffer extreme hardship upon separation.

The Applicant asserts that if he and his spouse relocate to Lithuania, she will suffer emotional, medical, and financial hardship? The Applicant indicates that his spouse needs not only his emotional support, but that of her family, to maintain her sobriety. Moreover, the Applicant's spouse states that she feels responsible for caring for the Applicant's mother. In a declaration dated May 15, 2015, the Applicant's spouse states that her mother-in-law is extremely sick with cancer. The Applicant submits his mother's medical records, consisting of discharge instructions and physicians' letters. In a letter dated May 20, 2014, a physician states that the Applicant's mother has stage three fallopiim tube cancer. In another letter dated May 20, 2014, from a different physician, the author indicates that the Applicant's mother was diagnosed in 2011 with fallopian tube cancer and that she no longer has cancer. The record contains a third May 2014 physician's letter stating that the Applicant's mother has cerebellar degeneration, fallopian tube carcinoma, ataxia, gait abnormality, dysarthria, depression, and hypertension. Although the record is unclear about the Applicant's mother's current condition with respect to her fallopian tube cancer diagnosed in 2011, she appears to have multiple serious medical conditions. The record also indicates that the Applicant's father and brother help care for his mother, but they work and attend school during the day. Because the Applicant's spouse considers caring for her mother-in-law her responsibility, she may experience·emotional hardship if she relocates and is unable to continue to provide that care.

The Applicant's spouse also states that she cannot relocate to Lithuania because she does not speak the language and because she is Jewish. She fears discrimination in Lithuania, where she asserts Jewish people are disliked and cannot find work or medical treatment. The record does not contain corroborative evidence of the Applicant's spouse's religion or ethnicity. Moreover, the Applicant submits no information on conditions in Lithuania, including the availability of medical treatment for his spouse's addiction. As stated above, assertions on record without supporting documentary evidence are in sufficient for purposes of meeting the burden of proof in these proceedings. Matter ofSoffici, 22 I&N Dec. at 165.

2 The Applicant also asserts that his spouse would suffer hardship if she relocated to Ukraine, where she was born, but that scenario is not relevant to our analysis of hardship in this case.

5

Matter of M-K-

Although the Applicant's spouse may suffer emotionally if she were to relocate with the Applicant, due to separation from her own parents and her inability to care for her mother-in-law and her brother, the record lacks documentation to support that this hardship would amount to extreme hardship. We recognize the serious impact of separation on families in similar circumstances, but the evidence in the record, when considered in the aggregate, does not indicate that the hardship is beyond that which is normally experienced by families faced with a loved one's removal or inadmissibility.

In this case, the record does not contain sufficient evidence to show that the hardships faced by the Applicant's U.S. citizen spouse, considered in the aggregate, rise beyond the common results of removal or inadmissibility to the level of extreme hardship. The Applicant has not established extreme hardship to a qualifying relative, as required under section 212(i) of the Act. As the Applicant has not established extreme hardship to a qualifying family member, no purpose would be served in determining whether she merits a waiver as a matter of discretion.

In application proceedings, it is the Applicant's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.

ORDER: The appeal is dismissed.

Cite as Matter ofM-K-, ID# 14211 (AAO Jan. 5, 2016)

6