(b)(6)

U.S. Citizenship and Immigration Services

MATTER OF 0-C-L-

Non-Precedent Decision of the Administrative Appeals Office

DATE: SEPT. 30, 2016

APPEAL OF COLUMBUS, OHIO FIELD OFFICE DECISION

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

The Applicant, a native and citizen of the Philippines, seeks a waiver of inadmissibility for fraud or misrepresentation. See Immigration and Nationality Act (the Act) § 212(i), 8 U .S.C. § 1182(i). A foreign national seeking to be admitted to the United States as an immigrant or to adjust status to that of a lawful permanent resident must be admissible or receive a waiver of inadmissibility. 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 Field Office Director, Columbus, Ohio, denied the application. The Director concluded that the Applicant did not establish extreme hardship to her qualifying relative, her U.S. citizen spouse.

The matter is now before us on appeal. . On appeal, the Applicant submits a brief and copies of documents previously submitted.

Upon de novo review, we will dismiss the appeal, because the Applicant did not establish extreme hardship to her U.S. citizen spouse.

I. LAW

The Applicant is seeking to adjust status to that of a lawful permanent resident and is inadmissible for a fraud or misrepresentation, specifically, procuring a nonimmigrant fiancee visa (K-1 visa) to the United States by misrepresenting her marital status on Form DS-156, Nonimmigrant Visa Application and in subsequent interviews with the U.S. consulate in

Section 212(a)(6)(C)(i) of the Act renders inadmissible 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.

1 Now Form DS-160, Online Nonimmigrant Visa Application .

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Section 212(i) ofthe Act, 8 U.S.C. § 1182(i), provides for a waiver ofthis inadmissibility ifrefusal of admission would result in extreme hardship to the United States citizen or lawful permanent resident spouse or parent of the foreign national.

Decades of case law have contributed to the meaning of extreme hardship. The definition of extreme hardship "is not ... fixed and inflexible, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case." Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565 (BIA 1999) (citation omitted). Extreme hardship exists "only in cases of great actual and prospective injury." Matter of Ngai, 19 I&N Dec. 245, 246-47 (BIA 1984). An applicant must demonstrate that claimed hardship is realistic and foreseeable. !d.; see also Matter of Shaughnes5y, 12 I&N Dec. 810, 813 (BIA 1968) (finding that the respondent had not demonstrated extreme hardship where there was "no showing of either present hardship or any hardship ... in the foreseeable future to the respondent's parents by reason of their alleged physical defects"). The common consequences of removal or refusal of admission, which include "economic detriment ... [,] loss of current employment, the inability to maintain one's standard of living or to pursue a chosen profession, separation from a family member, [and] cultural readjustment," are insufficient alone to constitute extreme hardship. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996) (citations omitted); but see Matter of Kao and Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which the qualifYing relatives would relocate). Nevertheless, all "[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists." Matter of Ige, 20 I&N Dec. 880, 882 (BIA 1994) (citations omitted). Hardship to the Applicant or others can be considered only insofar as it results in hardship to a qualifying relative. Matter of Gonzalez Recinas, 23 I&N Dec. 467, 471 (BIA 2002).

II. ANALYSIS

The issues before us are whether the Applicant is inadmissible under section 212(a)(6)(C) of the Act and whether she has shown that she should be granted a waiver under section 212(i) of the Act.2 On appeal, the Applicant states that the issue of her admissibility was resolved by the U.S. consulate when she was issued her K -1 visa and that she has not provided false information on her Form I -60 1 or in her affidavit submitted with that application. She also states that the denial of her Form 1-601 would result in extreme hardship to her U.S. citizen spouse and their U.S. citizen child, stating that their child is also a qualifying relative.

2 This is the Applicant's second appeal of a Form 1-601 denial. We dismissed the Applicant's appeal of her previously filed Form 1-601 in 2011, finding that she did not establish extreme hardship to her only qualifying relative, her U.S. citizen spouse.

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A. Inadmissibility

As stated above, the Applicant was found inadmissible under section 212(a)(6)(C) of the Act for fraud or misrepresentation, specifically for procuring a K -1 visa to the United States by willfully misrepresenting her marital status.3

For a misrepresentation to be willful, it must be determined that the applicant 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, a misrepresentation must be made with knowledge of its falsity. 7 I&N Dec. at 164. To determine whether a misrepresentation was willful, we examine the circumstances as they existed at the time of the misrepresentation, and we "closely scrutinize the factual basis" of a finding of inadmissibility for fraud or misrepresentation because such a finding "perpetually bars an alien from admission." Matter of Y-G-, 20 I&N Dec. 794, 796-97 (BIA 1994 ); see also Matter of Tijam, 22 I&N Dec. 408, 425 (BIA 1998) and Matter of Healy and Goodchild, 17 I&N Dec. 22, 28-29 (BIA 1979).

Further, "the test of whether concealments or misrepresentations are 'material' is whether they can be shown by clear, unequivocal, and convincing evidence to have been predictably capable of affecting, i.e., to have had a natural tendency to affect, the Immigration and Naturalization Service's decisions." Kungys v. United States, 485 U.S. 759, 760 (1988). A misrepresentation is material if either the foreign national is excludable on the true facts, or the misrepresentation tends to shut off a line of inquiry which is relevant to the foreign national'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 (A.G. 1961; BIA 1960). .

The Applicant states on appeal that she provided false information regarding her previous marriage on her Form DS-156, but she acknowledged her mistake, revealed all the information to the U.S. consulate during her interview, and the issue was resolved in her favor. 4 She also states that she did not provide false information on her Form 1-601 or her affidavit in support of her 1-601.5 The record

3 The record indicates that in her decision denying Form 1-485, Application to Register Permanent Residence or Adjust Status, the Director lists multiple bases for the finding of inadmissibility under section 212(a)(6)(C) of the Act, including misrepresentations made by the Applicant's U.S. citizen spouse on the Form I-129F, Petition for Alien Fiance(e), that he submitted on the Applicant's behalf. The Applicant may only be found inadmissible under section 212(a)(6)(C) of the Act for misrepresentations she made on her own behalf to procure a visa, other documentation, or admission into the United States or other benefit provided under the Act. Misrepresentations her U.S. citizen spouse made, on a form he signed and submitted, do not make the Applicant inadmissible under section 212(a)(6)(C) of the Act. 4 The Applicant also states that she did not submit the visa application under oath. However, the Applicant submitted false information on a written application, in an oral interview, and in evidence she submitted to the U.S. consulate in order to obtain a visa. See 8 USC IS Policy Manual J.3 (C)(!), https://www.uscis.gov/policymanual (footnote omitted). 5 We do not address whether the Applicant provided false information or misrepresented material facts after the issuance of her fiancee visa and her admission to the United States using that visa. The Applicant's disclosures after the iss.uance of her visa and her admission to the United States do not rectifY the misrepresentation she made to procure that visa and admission. See Matter of Namio, 14 I&N Dec. 412, 414 (BIA 1973); Matter of M-, 9 I&N Dec. 118, 119 (BIA 1960); and Matter of R-R-, 3 I&N Dec. 823, 827 (BIA 1949); see also 8 USCIS Policy Manual, supra, at J.3(D)(6) (stating that

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indicates that at the time of her nonimmigrant fiancee visa application, the U.S. consulate discovered that, although the Applicant had marked her marital status as "single (never married)," she had in fact been married in 2000. The Applicant also revealed during her medical exam in preparation for the consular interview that she had given birth to one child, whereas she indicated that she had no children during the nonimmigrant visa process.

As a result, the consulate requested that the Applicant prove that she was single and free to marry her U.S. citizen petitioner fiance. The record further indicates that in response to that request, the Applicant provided an order dated 2006, from the !Philippines Family Court, declaring the presumptive death of her prior husband. That order states that the Applicant represented to the court that she had not seen her prior husband since "the first week of September 2000." Based on this court order, the consulate found that the Applicant overcame the derogatory information regarding her freedom to marry the U.S. citizen petitioner. · The Applicant, however, later on Form 1-130, !Petition for Alien Relative, listed the birth of her second child with her prior husband as A field investigation also later determined that the Applicant's prior husband was alive and residing in the !Philippines. Although the Applicant subsequently legally divorced her prior husband in 2009, the record indicates that the Applicant's representations to the U.S. consulate in 2005 and 2006 concerning her lack of contact with her prior husband after the first week in September 2000 were false. The record also indicates that the Applicant did not disclose the existence of her second child, who was born to her and prior husband in Based on that false information, the consulate had determined that the Applicant was eligible for a K -1 visa. The true facts, that the Applicant had contact with her prior spouse after September 2000 and that the couple had a child together in would have called into question the validity of the order of the presumptive death of her prior husband and whether the Applicant was free to marry.

We find that the Applicant willfully misrepresented material facts to procure a visa to the United States and is inadmissible under section 212(a)(6)(C) of the Act. The Applicant is eligible for a waiver of inadmissibility under section 212(i) of the Act, but she must demonstrate extreme hardship to a qualifying relative as a result of her inadmissibility.

B. Waiver

The Applicant must demonstrate that denial of the application would result in extreme hardship to her U.S. citizen spouse. On appeal, the Applicant, through counsel, states that she is eligible for a waiver of inadmissibility under section 212(h) of the Act, and that her U.S. citizen child is a qualifying relative. As stated above, the Applicant requires a waiver under section 212(i) ofthe Act, not section 212(h) of the Act, and children are not qualifying relatives under section 212(i) of the

a retraction may only be effective if it is voluntary, timely, and made in the same proceeding in which the individual gives the false testimony or misrepresentation). In addition, once an applicant has been found to have committed fraud or misrepresentation to procure a visa, she is permanently inadmissible to the United States under section 212(a)(6)(C) of the Act unless she obtains a waiver of inadmissibility.

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Act.6 Hardship to the Applicant's child may only be taken into consideration insofar as it is shown to affect the hardship to her qualifying relative, her U.S. citizen spouse.

In support of the claim of hardship to her spouse, the Applicant submitted: affidavits from her and her spouse; a letter from her spouse's physician and medical records for her spouse; biographical information for the Applicant, her spouse, and their U.S. citizen son; a letter from her son's school; and documentation concerning her spouse's income, including copies of his tax returns.

The Applicant states that her spouse would suffer extreme hardship if he were to be separated from her, because he relies on her to care for him and their son. The Applicant states that her· spouse suffers from diabetes and high blood pressure and that she takes care of him by making sure he takes his medication. The evidence addressing the Applicant's spouse's medical condition includes a letter from a family-practice doctor from 2009, stating that the Applicant's spouse has been treated at the practice since 1994 and that he has type II diabetes mellitus and is insulin dependent. Progress notes dated December 2015 confirm that the Applicant's spouse takes medication, including insulin, to control his diabetes. The notes also include lab results and list 11 "active" medications that the Applicant's spouse takes; they state that he was counseled on glucose control and should be monitored annually. The record does not indicate that the Applicant's spouse could not take his medications or manage his health conditions, if medically prescribed or necessary, in the absence of the Applicant. The record does not clearly establish the physical or medical hardship that the Applicant's spouse would experience if he were to be separated from the Applicant.

The Applicant also states that her spouse does not have relatives who could care for their son in her absence and that he would suffer hardship because he could not maintain his employment as a truck driver and care for their son. She states that her spouse must be on the road at times for days and that paying for a caregiver for their school-age son would result in extreme hardship. Although the Applicant's spouse submits a statement stating that he is a truck driver and sometimes must be on the road for days at a time, he does not present additional evidence to corroborate that statement. The Applicant and her spouse indicate in their statements that they wish for their son to continue his education in the United States, and they include a letter from their son's school, stating that he is enrolled there and that school records indicate that he lives with the Applicant and her spouse. No other recent documentation, however, illustrates the financial hardship that the Applicant's spouse would experience if he were to be separated from the Applicant and need to find care for their son while he worked. The Applicant's spouse states that he would not be able to afford his mortgage payment, credit card, utility bills, insurance bills, truck repairs, and medical bills, but the record lacks documentation of these debts and expenses. In addition, although the Applicant's spouse states that he has long-term employment as a truck driver, the record includes no information about his savings and whether he could obtain another type of employment that would allow him to care for their son in the Applicant's absence.

6 Section 212(h) of the Act provides for a discretionary waiver for inadmissibility under section 212(a)(2)(A) of the Act, in certain circumstances for certain criminal and controlled-substance related activities. Neither section 212(a)(2)(A) of the Act or the corresponding waiver at section 212(h) of the Act applies to the Applicant.

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(b)(6)

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The Applicant's spouse also states that he would suffer emotional hardship in the Applicant's absence, describing their emotional bond, but the Applicant did not submit documentation that distinguishes the emotional harm that her spouse would experience from the type of emotional harm that is normally experienced by individuals separated as a result of immigration inadmissibility. Because of the lack of documentation in the record to establish the medical, financial, and emotional hardship to the Applicant' s spouse, we do not find that, in the aggregate, the record establishes that the Applicant's spouse would suffer extreme hardship as a result of being separated from the Applicant.

In regard to the hardship thatthe Applicant' s spouse would experience if he were to relocate to the Philippines with the Applicant, the Applicant states that her spouse would lose his livelihood as a truck driver and that he would also lose access to his medical care, which is important because of his health problems. The Applicant provided no country-conditions documentation concerning work opportunities in the Philippines, to show that a person of the same age and experience as the, Applicant's spouse would be unable to obtain employment in the Philippines. The Applicant' s Form G-325A, Biographic Information, indicates that she previously worked as a custodian in the Philippines for 20 years, but she does not state she would be unable to obtain employment in the Philippines to support her spouse and their child. Loss of current employment and the inability to maintain one's standard of living or to pursue a chosen profession are insufficient alone to constitute extreme hardship. Matter of Pilch, 21 I&N Dec. at 630. The record also contains no information on the availability or cost of health care in the Philippines for individuals with type II diabetes mellitus. Although the Applicant states that her spouse is a veteran and the progress notes in 2015 are printed from the and refer to her spouse as a veteran, the record does not include clear information about the medical benefits the Applicant's spouse receives as a veteran and the coverage he would have in the Philippines.

The Applicant's spouse also states that he also would suffer hardship if he were to relocate because he only speaks English, and if their son were to attend school in the Philippines, he may lose the ability to communicate with him. The record indicates that the Applicant's son is years old. There is no reason to believe that the Applicant's spouse would become unable to speak in English with their son in the Philippines. In addition, the Applicant states that her spouse would suffer hardship if their son would have to receive an inferior education in the Philippines. The Applicant, however, submits no documentation to support this 'statement. As stated above, the Applicant's son is not a qualifying relative under 212(i) of the Act, and the Applicant must also show how hardship to their son would affect her spouse.

The Applicant does not claim that her spouse has family ties to the United States, aside from the couple's son, but she states that he has long-term employment here, speaks only English, and is a veteran. We take note of the U.S. Department of State's travel warning, issued on April21, 2016, concerning the Philippines, which advises U.S. citizens to avoid certain areas due to terrorist threats, insurgent activities, and kidnappings. This is not a countrywide warning, and the record is unclear about the hardship the Applicant's spouse would experience as a result of the recommendation not to travel to the regions the warning mentions. Although it is clear that leaving the United States - his

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country of birth and where he has had long-term stable employment- would result in hardship to the Applicant's spouse, the Applicant has not shown that the hardship that he would experience is extreme.

As the Applicant has not demonstrated extreme hardship to a qualifying relative, we need not consider whether she warrants a waiver in the exercise of discretion.

III. CONCLUSION

The Applicant has the burden of proving eligibility for a waiver of inadmissibility. See section 291 of the Act, 8 U.S.C. § 1361. The Applicant has not met that burden, as she has not established extreme hardship to her U.S. citizen spouse as a result of her inadmissibility.

ORDER: The appeal is dismissed.

Cite as Matter ofO-C-L-, ID# 10630 (AAO Sept. 30, 2016)