Under the Immigration and Nationality Act, any alien 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 such alien’s departure or removal from the United States is inadmissible.
But said alien may be granted a waiver of inadmissibility upon a showing that the alien’s citizen or lawful permanent resident spouse or parent would suffer extreme hardship if the alien is not allowed to return to the United States.
In a recent case, the District Director of Mexico City denied the waiver application of an alien who had been unlawfully present in the United States but the Administrative Appeals Office (AAO) granted the waiver upon appeal.
The alien had entered the United States without authorization in May 2003 and remained until June 2007. He was thus unlawfully present for more than 1 year. He filed a waiver application on the ground that his inadmissibility would cause extreme hardship to his wife.
Extreme hardship is not defined in the statute but Matter of Cervantes-Gonzales, a case cited by the AAO listed the factors relevant in the determination of what constitutes extreme hardship.
The factors include the qualifying relative’s family ties outside the United States, the political and economic conditions in the country where the relative would relocate and the relative’s ties in that country, the financial effect of the relative’s departure from the United States and the relative’s health conditions given the unavailability of suitable medical care in that country.
In deciding the case, the AAO stated that for the waiver to be approved, the applicant must first demonstrate extreme hardship to his wife if she were to remain in the United States while the applicant resided abroad. The applicant must also prove extreme hardship to his wife if she were to live abroad with her husband. In addition, the AAO said that the applicant must prove eligibility for the waiver in terms of equities in the United States that are not outweighed by adverse factors.
To prove extreme hardship to his wife while in the United Sates, the alien submitted proof of her emotional and financial hardship. He presented a mental health document of her depression, her need for antidepressants, and a psychologist’s recommendation that she be excused from work due to her mental condition. He also submitted evidence of her financial hardship due to lack of financial support from him.
As for extreme hardship to his spouse in the event that she would be forced to relocate and live with him, he submitted proof of the problematic political and economic conditions in the country of relocation. The wife asserted that the country has a high crime rate, especially homicide and kidnappings.
The wife also presented a medical report attesting to the problematic health conditions of her child caused by the lack of drinking water, unsanitary conditions, and unavailability of basic food supplies in the country of relocation. She also noted that her husband had not been able to find employment in that country.
His wife also described the hardship that she would face as a result of her leaving her family in the United States, including her father, her mother, her 4 brothers and sisters, her long term gainful employment, her community, and her church. She would not be able to maintain her quality of living.
The AAO found that wife’s emotional and financial hardship rose to the level of extreme hardship if the alien were unable to reside in the United States.
In making its decision, the AAO had to balance the adverse factors with the favorable factors. It found that the adverse factors namely, the alien’s unlawful entry and unlawful presence and employment in the United States were outweighed by the favorable factors consisting of the extreme hardship to the wife, community ties, support letters, active involvement with the Christian Center, gainful employment, lack of criminal record, and the passage of over 6 years since the alien’s unlawful entry.