BIA Addresses Extreme Hardship Requirements for § 212(i) Waivers (Matter of Cervantes)

IMMIGRATION LAW & POLICY

Removal Issues Concerning Criminal Convictions

BIA ADDRESSES EXTREME HARDSHIP REQUIREMENTS FOR § 212(i) WAIVERS (MATTER OF CERVANTES)
Immigrants' Rights Update, Vol. 13, No. 3, May 28, 1999

The Board of Immigration Appeals has found that the recent amendments to Immigration and Nationality Act section 212(i), which requires that aliens seeking a waiver of inadmissibility must establish that their being refused admission will result in extreme hardship to their U.S. citizen or lawful permanent resident spouse or parent, apply to pending cases. The BIA’s decision also outlines the factors to be used in determining whether an alien has established extreme hardship pursuant to INA section 212(i). Finally, the decision holds that the underlying fraud or misrepresentation for which an alien seeks a waiver of inadmissiblity under section 212(i) may be considered as an adverse factor in adjudicating the waiver application in the exercise of discretion.

The respondent, a Mexican national named Cervantes-Gonzalez, was convicted of possessing a false identification document, namely, a counterfeit Texas birth certificate. The Immigration and Naturalization Service subsequently placed him in deportation proceedings. In October 1995, he admitted the allegations in the Order to Show Cause and Notice of Hearing and was found deportable by the immigration judge.

While in proceedings, the respondent married a U.S. citizen. He filed a request for adjustment of status based on an approved immigrant visa petition filed by his U.S. citizen spouse. However, the IJ found the respondent inadmissible under INA section 212(a)(6)(C)(I), which provides that "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, or admission into the U.S. or other benefits provided under this Act is inadmissible." The respondent then filed a waiver of inadmissibility for fraud or misrepresentation under INA section 212(i).

In adjudicating the waiver application, the IJ found that the respondent failed to establish extreme hardship to his spouse as required by INA section 212(i) and denied the respondent’s requests for a waiver of inadmissibility and adjustment of status. He also denied the respondent voluntary departure.

On appeal to the BIA, the respondent argued that he did not require a waiver of inadmissibility because he is not inadmissible under INA section 212(a)(6)(C)(i). The respondent argued that his sole conviction for possessing a false identification document—namely, the counterfeit Texas birth certificate—with the intent to defraud the U.S. (by obtaining a U.S. passport) does not fall within the definition of fraud in the INA. He asserted that since his conviction was only for possession, he was not guilty of seeking to procure a fraudulent document.

The BIA disagreed. It noted that the respondent had admitted to procuring one document in the form of a fraudulent birth certificate. He had testified that he purchased the birth certificate to obtain employment, used the birth certificate to procure fraudulently a Social Security number, and used both documents to seek to procure a passport. The BIA concluded that these activities clearly fall within the purview of INA section 212(a)(6)(C)(i) because the respondent sought to procure both "documentation" and "other benefits" under the INA by fraud and by willful misrepresentation of a material fact.

The respondent next argued that he had not been provided an adequate opportunity to present evidence on the issue of extreme hardship and asked that his case be remanded so that he could do so. While the respondent was in proceedings, section 349 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IRIRA) amended section 212(i) of the INA to require that an alien seeking to overcome a ground of inadmissibility must show that being denied admission will result in extreme hardship to his or her U.S. citizen or permanent resident alien spouse or parent. The respondent argued that, due to the changes, he had not been given an adequate opportunity to present evidence on the issue of extreme hardship, and he sought a remand. The BIA declined to remand.

The BIA noted that changes made by IIRIRA section 349 took effect on Sep. 30, 1996, which preceded the adjudication of the respondent’s case on Jan. 21, 1997. It said that the record reflects that the parties were aware that the extreme hardship requirement added by the IIRIRA applied to the respondent’s case and that he had ample opportunity to present evidence in this regard.

The BIA also noted that the respondent had conceded that the new requirement of a showing of extreme hardship applied to him even though his application for relief was filed prior to the enactment of the IIRIRA. The BIA said that this concession accorded with the attorney general’s opinion, Matter of Soriano, Int. Dec. 3289 (BIA, A.G. 1996), which held that new statutory rules of eligibility for discretionary forms of relief do not permit the attorney general to grant such relief in pending cases to aliens who do not qualify under the new rules. The BIA found that the amendments to INA section 212(i) are substantially similar to those discussed in Matter of Soriano and found that they must be applied to pending cases.

Therefore, the BIA concluded that because the IIRIRA section 349 amendments took effect on Sep. 30, 1996, the IJ properly applied them to the respondent’s pending case on Jan. 21, 1997. The BIA also found no basis on which to remand the matter to allow the respondent to develop additional facts to bolster his "extreme hardship" argument.

The BIA then analyzed the "extreme hardship" requirement for qualifying for a waiver under INA section 212(i) and concluded that the respondent did not meet it.

The BIA set out a list of factors to be considered in determining whether an alien has established extreme hardship pursuant to INA section 212(i). It noted that the factors include, but are not limited to, the following: the presence of lawful permanent resident or U.S. citizen family ties to this country; the qualifying relative’s family ties outside the U.S.; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative’s ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate.

In applying some of the factors to the respondent’s case, the BIA found that the respondent’s wife knew that he was in deportation proceedings when they married and was aware that she might be forced to choose between separating from her husband or going with him to Mexico if he were deported. Furthermore, the BIA reasoned, because the respondent’s wife speaks Spanish and the majority of her family is originally from Mexico, she should have less difficulty adjusting to life in a foreign country. The BIA also found that neither the respondent nor his wife has any significant financial ties to the U.S. The respondent’s wife is currently unemployed and the respondent is a musician in a band. He provided no evidence to prove that it had experienced success such that deportation would cause him to relinquish a lucrative career and plunge his wife into unaccustomed poverty. In sum, the BIA concluded that the respondent failed to show that his spouse would suffer extreme hardship over and above the normal economic and social disruptions involved in the deportation of a family member.

Finally, the respondent argued that it was improper for the IJ to have considered fraud as an adverse factor in denying him relief under section 212(i) of the INA as a matter of discretion. The BIA disagreed and cited INS v. Yueh-Shaio Yang, 519 U.S. 26 (1996), and Matter of Tijam, Int. Dec. 3372 (BIA 1998), for the proposition that it was proper for the IJ to have done so.

The BIA concluded that the respondent failed to establish eligibility for a waiver of inadmissibility under section 212(i). Thus, it concluded he is also ineligible for adjustment of status. In addition, the BIA found the IJ properly considered the respondent’s underlying fraud as an adverse factor when denying him relief as a matter of discretion. Accordingly, the BIA dismissed the respondent’s appeal.

This ruling relied on Matter of Soriano, in part, for the proposition that the changes made by the IIRIRA to section 212(i) that pertain to extreme hardship must be applied to pending cases. The ruling’s continued validity may be doubtful in light of the fact that three circuit courts have rejected the retroactivity analysis of Matter of Soriano. Goncalves v. Reno, 144 F.3d 110 (1st Cir. 1998) cert. denied, 119 S.Ct. 1140 (1999); Henderson v. Reno, 157 F.3d 106 (2nd Cir. 1998), cert. denied sub nom Reno v. Navas, 119 S.Ct. 1141 (1999); Mayers v. U.S. I.N.S., __ F.3d __, 1999 WL 317121 (11th Cir., May 20, 1999).

Matter of Cervantes, Int. Dec. 3380 (BIA Mar. 11, 1999).