aao waiver decisions using the new citation format as of september 30th 2015
TRANSCRIPT
CONTACT: [email protected] Page 1 of 27
AAO WAIVER DECISIONS USING THE NEW CITATION FORMAT AS OF SEPTEMBER 30, 20151
Compiled by Joseph P. Whalen
NEW FORMAT I-212 & I-601 WAIVER DECISIONS FROM AAO TO DATE
Application for Permission to Reapply for Admission into the United
States After Deportation or Removal (I-212)
HYPERLINK CITE AS: RESULT/COMMENTS
SEP082015_01H4212.pdf Matter of A-C-C-J-, ID# 13200 (AAO Sept. 8,
2015)
APPEAL OF HARLINGEN FIELD
OFFICE DECISION SUMMARILY
DISMISSED
The Applicant did not specifically
identify any erroneous conclusion of law
or statement of fact in the Acting Field
1 Although AAO has adopted a specific citation format for its Non-Precedent Administrative Decisions, we are still going to need to find them online. That means we are still going to need the posted filename hyperlink. The new format became a reality as of September 1, 2015.1 Until the agency presents an index or something, I offer this.
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Office Director's decision on the Form
I-290B.
SEP102015_01H4212.pdf Matter of E-N-D-C-, ID# 13326 (AAO Sept.
10, 20 15)
MOTION OF AAO DECISION DENIED
Applicant is currently statutorily
ineligible to apply for permission to
reapply for admission.
SEP112015_01H4212.pdf Matter of G-H-, ID# 13595 (AAO Sept. 11,
2015)
APPEAL OF SAN JOSE FIELD OFFICE
DECISION (I-601) SUSTAINED
The record reflects that the Applicant
turned 17 years old on [DATE one day
before she tried to enter the United
States. The Applicant was therefore a
minor at the time of her false U.S.
citizenship claim.
The law recognizes that many children
lack the judgment to appreciate the
consequences of ill-advised choices.
Whether the Applicant had the capacity
to make a false citizenship claim, such
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that she should be found to be
inadmissible under section
212(a)(6)(C)(ii) of the Act, depends on
whether she had the maturity and
judgment to understand the nature and
consequences of her action. In the
present matter, the cumulative evidence
in the record reflects that the Applicant,
given her particular circumstances,
lacked the capacity to make a false
citizenship claim under section
212(a)(6)(C)(ii) of the Act.
Application for Waiver of Grounds of Inadmissibility (I-601)
(Unlawful Presence)
HYPERLINK CITE AS: RESULT/COMMENTS
SEP032015_01H6212.pdf Matter of R-A-B-, ID# 12917 (AAO Sept. 3,
2015)
MOTION OF AAO DECISION DENIED
The Director denied the Form I-601 as
a matter of discretion, as no purpose
would be served where the Applicant
would remain inadmissible under
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section 212(a)(9)(C) of the Act. Decision
of the Director, dated March 26, 2014.
******
The record indicates that the Applicant
may also be inadmissible under section
212(a)(6)(C)(i) of the Act, 8 U.S.C. §
1182(a)(6)(C)(i), for having attempted
to procure a visa to the United States
through fraud or material
misrepresentation. The Applicant
initially did not disclose his prior
entries to the United States without
inspection and his unlawful presence in
the United States when seeking his
immigrant visa at the U.S. Embassy in
Costa Rica.
SEP042015_01H6212.pdf Matter of C-G-L-, ID# 12136 (AAO Sept. 4,
2015)
MOTION OF THE ADMINISTRATIVE
APPEALS OFFICE DECISION DENIED
Applicant did not demonstrate that his
qualifying relative would experience
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extreme hardship should she remain in
the United States without him.
Application for Waiver of Grounds of Inadmissibility (Criminal and Related)
HYPERLINK CITE AS: RESULT/COMMENTS
SEP022015_01H2212.pdf Matter of A-D-M-M-, ID# 12275 (AAO Sept.
2, 2015)
APPEAL OF NEW YORK DISTRICT
OFFICE DECISION SUSTAINED
The Director concluded that the
Applicant did not have a qualifying
relative and denied the application
accordingly. Decision of District
Director, dated July 29, 2014. …….
The record does establish that the
Applicant has a qualifying relative, her
U.S. citizen son. …………
The record does not indicate that the
Applicant's admission to the United
States is contrary to the national
welfare, safety or security of the United
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States and the record does indicate that
the Applicant has been rehabilitated.
Thus, the Applicant has established that
she qualifies for a waiver under section
212(h)(1)(A) of the Act. …………
In discretionary matters, the Applicant
bears the full burden of proving his or
her eligibility for discretionary relief.
See Matter of Ducret, 15 I&N Dec. 620
(BIA 1976). Here, the Applicant has met
that burden. Accordingly, the appeal
will be sustained.
SEP022015_02H2212.pdf APPEAL OF OAKLAND PARK FIELD
OFFICE DECISION DISMISSED AS
UNNECESSARY
The Director found that the Applicant
had failed to establish that his
qualifying relative would suffer extreme
hardship as a result of his
inadmissibility. The waiver application
was denied accordingly. Decision of the
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Field Office Director, dated April 15,
2015. ……..
The Applicant was convicted of simple
battery under Florida Statute 784.03,
which does not involve aggravating
factors such as the use of deadly weapon
or the infliction of serious bodily injury.
We therefore find that the offense
categorically does not involve moral
turpitude. 3 Accordingly, we find that
the Applicant has not been convicted of
a crime involving moral turpitude that
would render him inadmissible under
section 212(a)(2)(A) of the Act.
Therefore, the Director's decision will
be withdrawn. …….
3 The record of conviction does not
indicate whether the applicant was
convicted of intentionally touching or
striking another person against the will
of the other or intentionally causing
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bodily harm to another person.
However, we find that as the minimal
conduct for which there is a realistic
probability of prosecution under both
offenses contained in Florida Statute
784.03(1)(a) does not involve moral
turpitude, the offense is categorically
not a crime involving moral turpitude.
SEP032015_01H2212.pdf
Federal First Offenders Act
(FFOA)
Matter of E-G-C-D-, ID# 12256 (AAO Sept. 3,
20 15)
FFOA relieves certain first-time offenders
convicted on drug possession charges of
what would otherwise be the immigration
consequences of the conviction. However,
FFOA relief is unavailable when an offender
has violated a condition of probation. See 18
U.S.C. § 3607(a). See Estrada v. Holder, 560
F. 3d 1039, 1042 (9111 Cir. 2009).
APPEAL OF LOS ANGELES FIELD
OFFICE DECISION DENIED
Because the applicant was not convicted
of a single offense of simple possession
of 30 grams or less of marijuana, his
inadmissibility under section 212
(a)(2)(A)(i)(II) of the Act cannot be
waived under section 212(h) of the Act.
There is no waiver for the applicant's
inadmissibility.
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SEP032015_02H2212.pdf Matter of E-M-R-, ID# 10579 (AAO Sept. 3,
2015)
MOTION OF ADMINISTRATIVE
APPEALS OFFICE DECISION
DENIED
The Applicant's motion does not meet
the requirements of a motion to
reconsider under 8 C.F.R. § 103.5(a)(3),
as it does not establish that the decision
was incorrect based on the evidence of
record at the time of the initial decision.
SEP042015_01H2212.pdf Matter of G-R-E-S-, ID# 11313 (AAO Sept. 4,
2015)
APPEAL OF WASHINGTON FIELD
OFFICE DECISION DISMISSED AS
UNNECESSARY
In order to find the element of
willfulness, it must be determined that
the alien 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,
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a misrepresentation must be made
with knowledge of its falsity. 7 I&N
Dec. at 164. ………….…….
We do not find the Applicant made a
willful material misrepresentation to
gain an immigration benefit.
SEP082015_01H2212.pdf Matter of R-V-, ID# 12363 (AAO Sept. 8,
2015)
APPEAL OF MIAMI FIELD OFFICE
DECISION DISMISSED
The Applicant was found to be
inadmissible under section 212
(a)(2)(A)(i)(I) of the Immigration and
Nationality Act (the Act), 8 U.S.C. §
1182(a)(2)(A)(i)(I), for having been
convicted of a crime involving moral
turpitude. ……….
On appeal the Applicant asserts that his
conviction is not for a crime involving
moral turpitude. The Applicant cites
BIA decisions holding that involuntary
manslaughter does not involve moral
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turpitude and claims that the statute
under which he was convicted does not
require that it be proved he intended to
kill the victim, so the statute punishes
involuntary manslaughter.
The Florida manslaughter statute
prohibits both intentional (voluntary)
and unintentional (involuntary)
killings. Rodriguez v. State, 443 So.2d
286, 289 (Fla. 3d DCA 1983). The BIA
held that an involuntary manslaughter
statute was categorically a crime
involving moral turpitude (CIMT)
because the statute had as elements
both extreme recklessness and the
death of another person, a result serious
enough to raise the offense to a CIMT
even without a showing of specific evil
intent. Matter of Franklin, 20 I&N Dec.
867 (BIA 1994).
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SEP112015_01H2212.pdf Matter of M-I-, ID# 10606 (AAO Sept. 11,
2015)
APPEAL OF WASHINGTON, D.C.
FIELD OFFICE DECISION
SUSTAINED
Since the activities that are the basis for
the Applicant's criminal convictions
occurred more than 15 years ago, he is
eligible for a waiver under section
212(h)(1)(A) of the Act. Section
212(h)(1)(A) of the Act requires that the
Applicant's admission to the United
States not be contrary to the national
welfare, safety, or security of the United
States and that he has been
rehabilitated. ………..
The crimes and immigration violations
committed by the Applicant were
serious in nature. Nonetheless, we find
that the Applicant has established that
the favorable factors outweigh the
unfavorable factors. Therefore, a
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favorable exercise of the Secretary's
discretion is warranted.
Application for Waiver of Grounds of Inadmissibility (Fraud or Misrepresentation)
HYPERLINK CITE AS: RESULT/COMMENTS
SEP012015_01H5212.pdf Matter of A-N-E-S, ID# 10765 (AAO Sept. 1,
2015)
On appeal the Applicant, through counsel,
states that he received ineffective
assistance of counsel from an individual
who, unbeknownst to him, was not eligible to
practice law in the State of California.
………………..…..
…. The Applicant explains, with respect to the
third Lozada requirement, that no complaint
was filed with the California Bar Association,
as the individual had already been disbarred.
See Correa-Rivera v. Holder, 706 F.3d 1128,
1131 (9th Cir. 2013) (to comply with Matter of
APPEAL OF LOS ANGELES FIELD
OFFICE DECISION DISMISSED
The Applicant has new representation
and filed a timely appeal. His Form I-
601 will accordingly be given de novo
consideration. See Soltane v. DOJ, 381
F.3d 143, 145 (3d Cir. 2004)..........
The Field Office Director found the
applicant to be inadmissible under
section 212(a)(6)(C)(i) ofthe Act, as the
Applicant procured admission to the
United States on March 16, 1997, using
a passport from the Philippines and
U.S. visa in the name of another
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Lozada the motion "should reflect" whether a
bar complaint has been filed, but "probative
evidence" that a complaint has been filed is not
required). The U.S. Department of Justice,
Executive Office for Immigration Review also
issued a final order of discipline for the
Applicant's former counsel, dated September
13, 2006, indefinitely suspending him from
practice before the Board, immigration courts,
and the Department of Homeland Security. (to
comply with Matter of Lozada the motion
"should reflect" whether a bar complaint has
been filed, but "probative evidence" that a
complaint has been filed is not required).The
U.S. Department of Justice, Executive Office
for Immigration Review also issued a final
order of discipline for the Applicant's former
counsel, dated September 13, 2006,
indefinitely suspending him from practice
before the Board, immigration courts, and the
Department of Homeland Security.
individual. On appeal, the Applicant
does not contest his inadmissibility
under section 212(a)(6)(C)(i) of the Act
for having procured admission to the
United States through fraud or willful
misrepresentation of a material fact.
………………………………
In this case, the record does not contain
sufficient evidence to show that the
hardships faced by the qualifying
relative, considered in the aggregate,
rise beyond the common results of
removal or inadmissibility to the level of
extreme hardship 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 he merits a waiver
as a matter of discretion.
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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.
SEP032015_01H5212.pdf Matter of M-A-A-, ID# 10601 (AAO Sept. 3,
2015)
APPEAL OF LOS ANGELES FIELD
OFFICE DECISION DISMISSED
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, or his U.S. lawful permanent
resident mother, also 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
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extreme hardship to a qualifying family
member, no purpose would be served in
determining whether he merits a waiver
as a matter of discretion.
SEP032015_02H5212.pdf Matter of W-C-S, ID# 12218 (AAO Sept. 3,
2015)
APPEAL OF PHILADELPHIA FIELD
OFFICE DECISION DISMISSED
The record is silent regarding the
hardships that the Applicant's spouse or
parent would have to face if they were to
relocate to Ghana with the Applicant.
The Applicant also provides no
evidence addressing the extent of any
family ties to Ghana. As such, in this
case, the record does not contain
sufficient evidence to show that the
hardships the spouse or parent would
experience upon relocation, considered
in the aggregate, rise beyond the
common results of removal or
inadmissibility to the level of extreme
hardship.
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SEP042015_01H5212.pdf Matter of A-B-, ID# 12351 (AAO Sept. 4,
2015)
APPEAL OF NEW YORK DISCTRICT
OFFICE DECISION DISMISSED
A Form I-601 waiver application is
viable when there is a pending
adjustment of status application or
immigrant visa application. In this case,
the Applicant's Form I-485 was denied
on October 21, 2014. As described
above, the Director found the Applicant
did not establish his eligibility to adjust
his status to that of a lawful permanent
resident under section 245(a) of the Act
or section 245(i) of the Act. The
Applicant has filed a motion to reopen
the denial of his Form I-485, but the
record lacks evidence showing that the
Director has changed her finding.
Because the Applicant was found
ineligible to adjust status for reasons
other than his inadmissibility under
section 212(a)(6)(C)(i) of the Act, no
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purpose would be served in examining
the hardship to the Applicant's spouse.
Accordingly, the waiver application is
dismissed as a matter of discretion.
SEP042015_02H5212.pdf Matter of C-G-L-, ID# 12136 (AAO Sept. 4,
2015)
MOTION OF THE ADMINISTRATIVE
APPEALS OFFICE DECISION
DENIED
The Applicant, a native and citizen of
South Korea, seeks a waiver of
inadmissibility. See Immigration and
Nationality Act (the Act) §
212(a)(9)(B)(v), 8 U.S.C. §
1182(a)(9)(B)(v) and § 212(i), 8 U.S.C. §
1182(i). The Field Office Director,
Hagatna, Guam, denied the application.
A subsequent appeal was dismissed by
the Administrative Appeals Office
(AAO). The matter is now before us on
a motion. The motion is denied.
The Applicant was found to be
inadmissible to the United States
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pursuant to section 212(a)(9)(B)(i)(II)
of the Act, 8 U.S.C. § 1182(a)(9)
(B)(i)(II), for having been unlawfully
present in the United States for more
than one year and again seeking
admission within ten years of his last
departure from the United States. He
was also found to be inadmissible to the
United States under section
212(a)(6)(C)(i) of the Act, 8 U.S.C. §
1182(a)(6)(C)(i), for procuring
admission to the United States through
fraud or misrepresentation. The
Applicant is married to a U.S. citizen.
He seeks a waiver of inadmissibility in
order to reside in the United States with
his family.
SEP082015_01H5212.pdf Matter of N-F-, ID# 10739 (AAO Sept. 8,
2015)
APPEAL OF MIAMI FIELD OFFICE
DECISION DISMISSED
In order to be found inadmissible for
fraud or willful misrepresentation, an
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individual must seek to procure, have
sought to procure or have procured a
visa, other documentation, admission,
or other benefit under the Act. A
misrepresentation is generally material
only if by it the alien received a benefit
for which he would not otherwise have
been eligible. See Kungys v. United
States, 485 U.S. 759 (1988); see also
Matter of Tijam, 22 I&N Dec. 408 (BIA
1998); Matter of Martinez-Lopez, 10
I&N Dec. 409 (BIA 1962; AG 1964 ). A
misrepresentation or concealment
must be shown by clear, unequivocal,
and convincing evidence to be
predictably capable of affecting, that is,
having a natural tendency to affect, the
official decision in order to be
considered material. Kungys, 485 U.S.
at 771- 72. The Board of Immigration
Appeals (BIA or Board) has held that a
misrepresentation made in connection
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with an application for visa or other
documents, or for entry into the United
States, is material if either:
1. the alien is excludable on the
true facts, or
2. the misrepresentation tends
to shut off a line of inquiry which
is relevant to the alien's
eligibility and which might well
have resulted in proper
determination that he be
excluded.
Matter of S- and B-C-, 9 I&N Dec.
436,448-449 (BIA 1960; AG 1961).
SEP082015_02H5212.pdf Matter of D-T-C, ID# 12807 (AAO Sept. 8,
2015)
MOTION OF AAO DECISION DENIED
The Applicant, a native and citizen of
Ghana, seeks a waiver of
inadmissibility. See Immigration and
Nationality Act (the Act) § 212(i), 8
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U.S.C. § 1182(i). The Acting District
Director, Philadelphia, Pennsylvania,
denied the application. The Applicant
appealed that decision and we
dismissed that appeal. The Applicant
filed a motion to reopen and reconsider
that decision, the motion to reopen was
granted, but the underlying decision
dismissing the appeal was affirmed. The
matter is now before us on a second
motion to reopen and reconsider. The
motion will be denied.
The Applicant was found to be
inadmissible to the United States
pursuant to section 212(a)(6)(C)(i) of
the Act, 8 U.S.C. § 1182(a)(6)(C)(i),
because he procured admission to the
United States using a passport and visa
issued in the name of another
individual. The Applicant seeks a
waiver under section 212(i) of the Act in
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order to reside in the United States with
his U.S. citizen spouse and children.
SEP092015_01H5212.pdf Matter of G-T-N-, ID #12367 (AAO Sept. 9,
2015)
APPEAL OF NEW ARK FIELD
OFFICE DECISION DISMISSED
The spouse asserts that Ghana is
dangerous and that on visits there he
has heard stories of people getting
killed. The psychological evaluation
states that the spouse reports a concern
for political instability in Ghana where
there is a history of volatility and that it
is a dangerous environment not
properly policed. The U.S. Department
of State recommends that due to the
potential for violence, U.S. citizens
should avoid political rallies, and it
states that pick-pocketing, purse-
snatching, and various types of scams
are the most common forms of crime
confronting visitors, but that incidences
of violent crime are on the rise. US
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Department of State, Bureau of
Consular Affairs - Ghana, dated July
18, 2014. The submitted country
conditions information does not
establish that the applicant's spouse
would be at risk as a result of crime or
violence. There are no current travel
advisories for Ghana, and the record
does not address specifically where the
Applicant would reside
SEP112015_01H5212.pdf Matter of G-H-, ID# 13595 (AAO Sept. 11,
2015)
APPEAL OF SAN JOSE FIELD
OFFICE DECISION SUSTAINED
The record contains an approved Form
I-360 VA WA petition for the Applicant,
based on abuse by her former spouse.
Further, the Applicant asserted credibly
in an August 6, 2010, affidavit that she
married at the age of 14; that her
husband subjected her to physical and
emotional abuse throughout her
marriage and she "lived in fear" of her
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husband; and that she was afraid to
disobey the plans her husband made for
her to reenter the country illegally to
join him in the United States,
particularly because he had their son
and she was worried about his safety.
The record contains police report,
restraining order, and criminal record
evidence reflecting an ongoing pattern
of violence by the Applicant's husband
against the Applicant. The record also
corroborates the Applicant's assertions
that she had her first child at the age of
15 and that her husband arranged for
their son to enter the United States
separately. Further, the Applicant
asserted that after she was removed to
Mexico, her husband threatened to
keep their son and raise him without
her if she did not agree to reenter the
United States illegally.
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SEP152015_01H5212.pdf Matter of P-P-, ID# 10598 (AAO Sept. 15,
2015)
APPEAL OF LOS ANGELES FIELD
OFFICE DECISION DISMISSED
In a decision dated August 8, 2013, the
Field Office Director found that the
Applicant did not have a pending Form
I-485, Application to Register
Permanent Residence or Adjust Status,
and thus, the Applicant's Form I-601
served no purpose and was denied
accordingly.
On appeal, the Applicant states that in
2002 she w In a decision dated August
8, 2013, the Field Office Director found
that the Applicant did not have a
pending Form I-485, Application to
Register Permanent Residence or
Adjust Status, and thus, the Applicant's
Form I-601 served no purpose and was
denied accordingly. On appeal, the
Applicant states that in 2002 she was
found inadmissible for marriage fraud
and was granted voluntary departure by
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an immigration judge, but she did not
leave the United States. The Applicant
states that her removal order was
reopened and terminated by an
immigration judge so that she could
adjust her status in the United States
based on section 241(f) of the Act and
Virk v. INS, 295 F.3d 1055 (9th Cir.
2002), which she states allows her to
apply for an extreme hardship waiver.
The Applicant states that she filed a new
Form I-485 and Form I-601 based on a
new marriage to a U.S. citizen. The
Form I-130, Petition for Alien Relative,
that the Applicant's current U.S. citizen
spouse filed on her behalf and her most
recent Form I-485 were denied under
section 204(c) of the Act. She appealed
the denial of her Form I-130 and filed a
motion to reconsider for her Form I-
485.