The BIA reviewed the findings of fact made by the IJ, including findings as to the credibility of testimony, to determine whether they are “clearly erroneous,” and the BIA reviews de novo all questions of law, discretion, and judgment, including whether the parties have met their relevant burden of proof.
Where the respondent did not meaningfully contest their inadmissibility under INA Section 212(a)(9)(C)(i)(I), and where the respondents did not challenge the IJ’s finding that they first entered the U.S. without inspection in 1998 and departed the U.S. on October 1, 2000, and then re-entered the U.S. on November 1, 2000, the BIA concluded each respondent is inadmissible under INA Section 212(a)(9)(C)(i)(I) as an alien who has been unlawfully present in the United States for an aggregate period of more than 1 year and who entered the United States without being admitted.
Both the Second Circuit in Mora v. Mukasey, 550 F.3d 231 (2d Cir. 2008), and the Sixth Circuit in Ramirez-Canales v. Mukasey, 517 F.3d 904 (6th Cir. 2008), have held that because the BIA analyzed and interpreted the ambiguous provisions of the immigration laws reasonably in Matter of Briones, 24 I&N Dec. 355 (BIA 2007), Chevron deference should be accorded to the BIA’s conclusion that an alien who is determined to be inadmissible under INA Section 212(a)(9)(C)(i)(I) is ineligible to adjust status under INA Section 245(i). Furthermore, the Seventh Circuit recently noted in Lemus-Losa v. Holder, 576 F.3d 752 (7th Cir. 2009) that there was sufficient ambiguity between sections 212(a)(9)(C)(i)(I) and 245(i) to require Chevron deference and that it would find that the BIA has drawn a rational line.
Where the Ninth Circuit decision in Acosta v. Gonzales, 439 F.3d 550 (9th Cir. 2006) which held that an alien who is inadmissible under INA Section 212(a)(9)(C)(i)(I) is eligible to apply for adjustment of status under INA Section 245(i) was constrained by its prior decision in Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir. 2004), and where Perez-Gonzalez was overruled by the Ninth Circuit in Gonzales v. Department of Homeland Security, 508 F.3d 1227 (9th Cir. 2007) after granting Chevron deference to the BIA’s decision in Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), which rejected the analysis in Perez-Gonzalez, the Ninth Circuit recognized that Perez-Gonzalez was premised on the existence of ambiguity in the interplay between the inadmissibility and adjustment of status provisions and that the BIA’s interpretation of these ambiguous statutes in Matter of Torres-Garcia was reasonable. Therefore, in light of the BIA’s subsequently issued decision in Matter of Briones, 24 I&N Dec. 355 (BIA 2007) and the Ninth Circuit’s decision in Gonzales to overrule Perez-Gonzalez, neither the IJ nor the BIA remains bound by the Ninth Circuit’s decision in Acosta. The analysis of Matter of Briones is therefore applicable, and the IJ properly found the respondents ineligible for adjustment of status under INA Section 245(i). Accordingly, the respondents’ appeal will be dismissed.
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Showing posts with label unlawful presence bar. Show all posts
Showing posts with label unlawful presence bar. Show all posts
Friday, January 29, 2010
Wednesday, December 2, 2009
Matter of X, unpublished (AAO Nov. 27, 2009).
A section 212(a)(9)(B)(v) waiver of the bar to admission resulting from section 212(a)(9)(B)(i)(II) of the INA is dependent first upon a showing that the bar imposes an extreme hardship to the U.S. citizen or lawfully resident spouse or parent of the applicant. Once extreme hardship is established, it is but one favorable factor to be considered in the determination of whether the Secretary should exercise discretion.
In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship. These factors included (1) the presence of a lawful permanent resident or United States citizen spouse or parent in this country; (2) the qualifying relative's family ties outside the United States; (3) the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; (4) the financial impact of departure from this country; and (5) significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. The BIA has further stated in Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996): Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists. In each case, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.
In addition, the Ninth Circuit Court of Appeals has in Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) held that the most important single hardship factor may be the separation of the alien from family living ill the United States, and, when the BIA fails to give considerable, if not predominant, weight to the hardship that will result from family separation, it has abused its discretion.
Cerrillo-Perez v. INS, 809 F.2d 1419, 1424 (9th Cir. 1987) also states that the hardship to the alien resulting from his separation from family members may, in itself, constitute extreme hardship.
However, U.S. court decisions have held that the common results of deportation or exclusion are insufficient to prove extreme hardship. In Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), the BIA held that emotional hardship caused by severing family and community ties is a common result of deportation and does not constitute extreme hardship. In addition, in Perez v. INS, 96 F.3d 390 (9th Cir. 1996), the court held that the common results of deportation are insufficient to prove extreme hardship and defined "extreme hardship" as hardship that was unusual or beyond that which would normally be expected upon deportation. In Hassan v, INS, 927 F.2d 465, 468 (9th Cit. 1991), the court further held that the uprooting of family and separation from friends does not necessarily amount to extreme hardship, but rather represents the type of inconvenience and hardship experienced by the families of most aliens being deported. Moreover, the U.S. Supreme Court additionally held in INS v, Jong Ha Wang, 450 U.S., 139 (1981), that the mere showing of economic detriment to qualifying family members is insufficient to warrant a finding of extreme hardship.
Significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate, are relevant factors in establishing extreme hardship. When these conditions are considered together with following factors in the aggregate: (1) relocation to Mexico had caused and would continue to cause the applicant's wife emotional distress as well as financial hardship due to conditions in Mexico, (2) loss of her employment and medical insurance benefits in the United States, (3) separation from her family, and (4) the hardship of adjusting to life in Mexico after residing in the United States her entire life, these hardships rise to the level of extreme hardship.
When considered in the aggregate, the factors of hardship to the applicant's wife should she remain in the United States constitute extreme hardship. The applicant's wife was suffering from depression and was prescribed medication for the condition, and decided to relocate to Mexico because of the emotional hardship she was experiencing. Her decision to relocate was made despite the need to leave her job and family in the United States, and she has remained in Mexico despite financial hardship and fears resulting from the rising crime rate. It appears that in light of her psychological condition, the applicant's wife would be at risk of depression if she remained in the United States without the applicant, and this psychological hardship, when combined with the financial hardship of supporting herself and their child without the applicant's income, would amount to hardship to the applicant's wife that is unusual or beyond that which would normally be expected as a result of inadmissibility or removal from the United States.
The AAO additionally finds that the applicant merits a waiver of inadmissibility as a matter of discretion. In Matter of Mendez-Moralez, 21I&N Dec. 296 (BIA 1996), the BIA held that establishing extreme hardship and eligibility for a waiver does not create an entitlement to that relief, and that extreme hardship, once established, is but one favorable discretionary factor to be considered. In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors.
In evaluating whether section 212(a)(9)(B)(V) relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien's bad character or undesirability as a permanent resident of this country. As stated in Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996), the favorable considerations include (1) family ties in the United States, (2) residence of long duration in this country (particularly where the alien began residency at a young age), (3) evidence of hardship to the alien and his family if he is excluded and deported, (4) service in this country's Armed Forces, (5) a history of stable employment, (6) the existence of property or business ties, (7) evidence of value or service in the community, (8) evidence of genuine rehabilitation if a criminal record exists, and (9) other evidence attesting to the alien's good character (e.g., affidavits from family, friends and responsible community representatives).
The AAO must then balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented on the alien's behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. Where the adverse factors in the present case are the applicant's immigration violations, including entry without inspection and remaining in the United States without authorization from January 2000 to March 2006, and where the favorable factors in the present case are the extreme hardship to the applicant's wife, the applicant's previous employment in the United States and his history of filing income tax returns, his lack of a criminal record, and letters in support of his application from relatives of his wife, the AAO finds that applicant's violation of the immigration laws cannot be condoned, nevertheless, the AAO finds that taken together, the favorable factors in the present case outweigh the adverse factors, such that a favorable exercise of discretion is warranted. Accordingly, the appeal will be sustained.
In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship. These factors included (1) the presence of a lawful permanent resident or United States citizen spouse or parent in this country; (2) the qualifying relative's family ties outside the United States; (3) the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties in such countries; (4) the financial impact of departure from this country; and (5) significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. The BIA has further stated in Matter of O-J-O-, 21 I&N Dec. 381, 383 (BIA 1996): Relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists. In each case, the trier of fact must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.
In addition, the Ninth Circuit Court of Appeals has in Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) held that the most important single hardship factor may be the separation of the alien from family living ill the United States, and, when the BIA fails to give considerable, if not predominant, weight to the hardship that will result from family separation, it has abused its discretion.
Cerrillo-Perez v. INS, 809 F.2d 1419, 1424 (9th Cir. 1987) also states that the hardship to the alien resulting from his separation from family members may, in itself, constitute extreme hardship.
However, U.S. court decisions have held that the common results of deportation or exclusion are insufficient to prove extreme hardship. In Matter of Pilch, 21 I&N Dec. 627 (BIA 1996), the BIA held that emotional hardship caused by severing family and community ties is a common result of deportation and does not constitute extreme hardship. In addition, in Perez v. INS, 96 F.3d 390 (9th Cir. 1996), the court held that the common results of deportation are insufficient to prove extreme hardship and defined "extreme hardship" as hardship that was unusual or beyond that which would normally be expected upon deportation. In Hassan v, INS, 927 F.2d 465, 468 (9th Cit. 1991), the court further held that the uprooting of family and separation from friends does not necessarily amount to extreme hardship, but rather represents the type of inconvenience and hardship experienced by the families of most aliens being deported. Moreover, the U.S. Supreme Court additionally held in INS v, Jong Ha Wang, 450 U.S., 139 (1981), that the mere showing of economic detriment to qualifying family members is insufficient to warrant a finding of extreme hardship.
Significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate, are relevant factors in establishing extreme hardship. When these conditions are considered together with following factors in the aggregate: (1) relocation to Mexico had caused and would continue to cause the applicant's wife emotional distress as well as financial hardship due to conditions in Mexico, (2) loss of her employment and medical insurance benefits in the United States, (3) separation from her family, and (4) the hardship of adjusting to life in Mexico after residing in the United States her entire life, these hardships rise to the level of extreme hardship.
When considered in the aggregate, the factors of hardship to the applicant's wife should she remain in the United States constitute extreme hardship. The applicant's wife was suffering from depression and was prescribed medication for the condition, and decided to relocate to Mexico because of the emotional hardship she was experiencing. Her decision to relocate was made despite the need to leave her job and family in the United States, and she has remained in Mexico despite financial hardship and fears resulting from the rising crime rate. It appears that in light of her psychological condition, the applicant's wife would be at risk of depression if she remained in the United States without the applicant, and this psychological hardship, when combined with the financial hardship of supporting herself and their child without the applicant's income, would amount to hardship to the applicant's wife that is unusual or beyond that which would normally be expected as a result of inadmissibility or removal from the United States.
The AAO additionally finds that the applicant merits a waiver of inadmissibility as a matter of discretion. In Matter of Mendez-Moralez, 21I&N Dec. 296 (BIA 1996), the BIA held that establishing extreme hardship and eligibility for a waiver does not create an entitlement to that relief, and that extreme hardship, once established, is but one favorable discretionary factor to be considered. In discretionary matters, the alien bears the burden of proving eligibility in terms of equities in the United States which are not outweighed by adverse factors.
In evaluating whether section 212(a)(9)(B)(V) relief is warranted in the exercise of discretion, the factors adverse to the alien include the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record, and if so, its nature and seriousness, and the presence of other evidence indicative of the alien's bad character or undesirability as a permanent resident of this country. As stated in Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996), the favorable considerations include (1) family ties in the United States, (2) residence of long duration in this country (particularly where the alien began residency at a young age), (3) evidence of hardship to the alien and his family if he is excluded and deported, (4) service in this country's Armed Forces, (5) a history of stable employment, (6) the existence of property or business ties, (7) evidence of value or service in the community, (8) evidence of genuine rehabilitation if a criminal record exists, and (9) other evidence attesting to the alien's good character (e.g., affidavits from family, friends and responsible community representatives).
The AAO must then balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented on the alien's behalf to determine whether the grant of relief in the exercise of discretion appears to be in the best interests of the country. Where the adverse factors in the present case are the applicant's immigration violations, including entry without inspection and remaining in the United States without authorization from January 2000 to March 2006, and where the favorable factors in the present case are the extreme hardship to the applicant's wife, the applicant's previous employment in the United States and his history of filing income tax returns, his lack of a criminal record, and letters in support of his application from relatives of his wife, the AAO finds that applicant's violation of the immigration laws cannot be condoned, nevertheless, the AAO finds that taken together, the favorable factors in the present case outweigh the adverse factors, such that a favorable exercise of discretion is warranted. Accordingly, the appeal will be sustained.
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