U.S. Citizenship and Immigration Services

MATTER OF A-S-O-

Non-Precedent Decision of the Administrative Appeals Office

DATE: DEC. 7, 2018

APPPEAL OF FRESNO, CALIFORNIA FIELD OFFICE DECISION

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

The Applicant, a citizen of the Philippines currently residing in the United States, has applied to adjust status to that of a lawful permanent resident. A foreign national seeking to adjust status must be "admissible" or receive a waiver of inadmissibility. The Applicant has been found inadmissible for fraud/misrepresentation and seeks a waiver of that inadmissibility. Immigration and Nationality Act (the Act) section 212(i), 8 U.S.C. § 1182(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 Fresno, California Field Office denied the application, concluding that the Applicant was inadmissible under section 212(a)(6)(C)(i) of the Act for fraud or misrepresentation. The Director also found the Applicant inadmissible under 2 l 2(a)(9)(B)(i)(II) of the Act for accruing unlawful presence in the United States of 1 year or more and seeking admission within IO years of the date of departure or removal from the United States. The Director then determined that the Applicant had not established that her removal from the United States would result in extreme hardship to her U.S. citizen spouse, the only qualifying relative.

On appeal, the Applicant submits additional evidence and asserts that the Director erred in finding that denial of her waiver application would not result in extreme hardship to her spouse.

Upon de nova 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 discretionary 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.

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A foreign national who has been unlawfully present in the United States for 1 year or more, and who again seeks admission within 10 years of the date of departure or removal from the United States, is inadmissible. Section 212(a)(9)(B)(i)(II) of the Act. A foreign national is deemed to be unlawfully present in the United States if present in the United States after the expiration of the period of authorized stay or is present in the United States without being admitted or paroled. Section 212(a)(9)(B)(ii) of the Act.

A determination of whether denial of admission will result in extreme hardship depends on the facts and circumstances of each case. Matter o_f Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999) (citations omitted). We recognize that some degree of hardship to qualifying relatives is present in most cases; however, to be considered "extreme," the hardship must exceed that which is usual or expected. See Matter o_f Pilch, 21 I&N Dec. 627, 630-1 (BIA 1996) (finding that factors such as economic detriment, severing family and community ties, loss of current employment, and cultural readjustment were the "common result of deportation" and did not alone constitute extreme hardship). In determining whether extreme hardship exists, individual hardship factors that may not rise to the level of extreme must also be considered in the aggregate. A1atter of !ge, 20 l&N Dec. 880, 882 (BIA 1994) (citations omitted).

II. ANALYSIS

A. Inadmissibility

The record reflects that the Applicant entered the United States on August 1, 1993, with a C-1 transit visa with authorization to remain until August 10, 1993. In 1997 an Immigration Judge granted a period of voluntary departure for the Applicant to depart the United States before January 23, 1997, but she did not leave until January 2000. Because the Applicant's period of voluntary departure expired before the April 1, 1997, effective date of the unlawful presence provisions under the Act she accrued unlawful presence from April 1, 1997, until her 2000 departure, a period of more than one year. The Applicant then reentered the United States in 2002 using a passport and C-1 transit visa issued in the name of another person. The Applicant does not contest that she is inadmissible for accruing unlawful presence and for fraud or misrepresentation, but argues that as more than 10 years have passed since she departed the United States she is no longer barred from admission for this ground.

The record reflects that the Applicant has not remained outside the United States for 10 years since her last departure, nor did she disclose or obtain permission to reapply for admission when she was admitted with another person's passport and visa in 2002. However, as both inadmissibilities require the same waiver, we will now review whether the Applicant has established extreme hardship to her spouse and, if so, whether she merits a favorable exercise of discretion.

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B. Hardship

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 an applicant's evidence establishes that one of these scenarios would result from the denial of the waiver. The Applicant may meet this burden by submitting a statement from the qualifying relative certifying under penalty of perjury that the qualifying relative would relocate with the Applicant. or would remain in the United States, if the applicant is denied admission. 9 USCJS Policy lvfanual B.4(8), https://www.uscis.gov/policymanual.

In the present case, the record contains no statement from the Applicant's spouse indicating whether he intends to remain in the United States or relocate to the Philippines if the waiver application is denied. The Applicant must therefore establish that if she is denied admission, her spouse would experience extreme hardship both upon separation and relocation. To show this, with the waiver application the Applicant submitted: a brief; affidavits from herselt: her spouse, and two of her children; medical records for her spouse and her two sons; school documents for her sons; financial documentation; and civil documents. On appeal, the Applicant submits a brief and copies of decisions we have issued in unrelated cases.

On appeal, the Applicant states that she and her spouse married in 2005, merged their families of minor children from prior marriages, and have a son of their own born in 2008. In his affidavit. the spouse asserts that he and the Applicant grow together and depend on each other. The Applicant refers to medical records and maintains that her spouse suffers health issues, including mandibular cysts and depression, that he underwent leg surgery in 2012. and that he is required to see doctors regularly. In her 2015 affidavit, the Applicant's daughter asserts that the spouse, her stepfather, has medical conditions including two surgeries and that the Applicant makes sure he eats and takes his medication, and she keeps him organized because he has ADHD (attention-deficit/hyperactivity disorder). The daughter contends that no one else on either side of the family can be trusted to care for him and to ensure he stays healthy.

Medical records dated in 2016 show that the spouse has a medical history of hyperlipidemia, hypertension, gastro-esophageal reflux disease, calculus of kidney, sleep apnea, and major depression, recurrent, in full remission. Records also provide a list of medications. The records also indicate that the spouse has a benign lower jaw tumor that requires yearly monitoring and that in 2015 he had surgery to treat kidney/ureteral stones.

The Applicant states that their 10-year-old son has asthma for which he uses an inhaler and that he has allergies to many foods, becomes sick easily, and needs his diet monitored at all times. Medical records show that the son was diagnosed with intermittent asthma for which he was prescribed medication for an inhaler; that he has allergies to foods including peanuts, all nuts, eggs, fish. and shellfish; and that he requested school accommodation because of the food allergies. The Applicant contends that her spouse is unable alone to care for their son and keep him healthy. and the

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Applicant's daughter asserts that her stepfather would not always able to ensure his son's food is constantly monitored.

The Applicant further maintains that their son has a severe articulation disorder and is unable to pronounce words correctly so he was enrolled in speech therapy. School records show that the son was placed in an Individualized Education Program to address a speech impediment in 2012-2013. The Applicant's daughter asserts that the Applicant works with her son daily on his schoolwork because of his articulation disorder, and that if the son is cared for by a single parent it will cause him psychological harm.

The Applicant contends that her older son, now 21 years old, suffered as a teenager, has a history of anxiety and depression, and is taking medication for ADHD. The daughter contends that the Applicant's older son, her brother, suffered anxiety and depression that affected his schoolwork, but that the Applicant's determination helped him through school and found psychologists so he got proper treatment. Medical records from 2014 for the older son show he was diagnosed with ADHD, for which he was prescribed medication, and with major depression. single episode, moderate. ln the son's affidavit he asserts that the Applicant helped him focus.

The Applicant and her spouse maintain that the spouse's retirement benefits are the sole source of income and the spouse contends that the Applicant's legal status curtails her ability to work and help out financially. The daughter contends that since her stepfather is retired they need the extra income that the Applicant can provide for the mortgage and bills, and she asserts that the Applicant is financially responsible and budgets for the family. Financial documents submitted with the waiver application include income tax returns, the spouse's retirement pension statement, and bank account statements.

The Applicant also refers to our non-precedent decisions. However, these decisions were not published as precedent and therefore do not bind USCIS officers in future adjudications. 8 C.F.R. §§ 103.3(c), 1003.l(g).

The assertions of hardship to the Applicant's spouse due to separation are not sufficiently supported by the record. The affidavits of the Applicant, her spouse, and daughter do not describe the emotional or physical support the Applicant provides or explain how separation from her would impact his ability to function on a daily basis to such an extent that it would cause extreme hardship. The affidavits and medical records identify several medical diagnoses for the spouse. but there is no information from a treating physician and the medical records do not contain notes to demonstrate the severity of the spouse's conditions, provide a prognosis, or describe a treatment plan that would necessitate the Applicant's presence. The daughter contends that no one other than the Applicant can provide trusted care for her spouse, but there is no clear explanation of what assistance the spouse needs, why he cannot otherwise obtain assistance, or why he is unable to manage his health. The daughter also asserts that the spouse suffers from ADHD, but medical documentation submitted to the record does not corroborate this.

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The Applicant and her daughter contend that the youngest son has developmental and medical conditions and that the spouse would have difficulty caring for their son without the Applicant. They do not explain how the spouse would have difficulty caring for his son, given that the spouse is retired, nor do they describe any hardship caused to the spouse by providing care for his son. Although we recognize that the Applicant assisted her younger son academically, particularly in his early school years, affidavits from the Applicant, her daughter, and her older son as well as school records indicate the younger son is academically successful, and the record does not otherwise support that the Applicant's son would be affected by her absence to such an extent as to cause extreme hardship to her spouse. Medical records do not demonstrate that the son's health conditions are such that the spouse is unable to provide care without the Applicant's presence, or that providing care would cause hardship to the spouse. The Applicant also maintains that her older son, now 21 years old, has ADHD and suffered from depression, but has not shown that he still requires assistance or described how any effect of her separation from her older son would cause hardship for her spouse.

Regarding financial hardship, the Applicant, her spouse, and her daughter assert that the spouse's retirement pension is the sole household income, but they do not describe what financial hardship the spouse would experience in the Applicant's absence. Financial documentation in the record does not present a clear picture of the spouse's overall financial situation, such as liabilities and assets. The record is therefore insufficient to establish this hardship.

In sum, although the Applicant has shown her spouse will experience some difficulties due to separation, the evidence in the record is insufficient to establish that the spouse's medical, emotional, and financial hardship, considered individually and cumulatively, would go beyond the common results of inadmissibility or removal and rise to the level of extreme hardship.

The Applicant asserts that her spouse would suffer hardship if he were to relocate to the Philippines because he has lived his entire life in the United States, he would be separated from his children from his prior marriage, he does not speak the Applicant's native language, and he would not be able to get required medical care. The Applicant must establish that denial of the waiver application would result in extreme hardship to a qualifying relative both upon separation and relocation. However, as the Applicant has not established extreme hardship to her spouse in the event of separation, we cannot conclude she has met this requirement. As such, no purpose would be served in determining whether the Applicant merits a waiver as a matter of discretion. Accordingly, the application will remain denied.

ORDER: The appeal is dismissed.

Cite as Matter <~f A-S-O-, ID# 2025645 (AAO Dec. 7, 2018)