Admission to the U.S. Despite Fraud
The U.S. Immigration and Nationality Act (INA) states that “misrepresentation” is a basis for denying admission to the U.S. In general, an alien who seeks, has sought, or has procured admission to the U.S., or a visa or other documentation, by means of fraud or willful misrepresentation of a material fact becomes inadmissible. Inadmissibility based on misrepresentations may be waived by the U.S. Attorney General under certain circumstances.
Waiver of Inadmissibility Based on Misrepresentation
The Attorney General has the discretion to waive inadmissibility based upon such misrepresentations. To qualify for the waiver, the alien must be a “spouse, son or daughter” of a U.S. citizen or an alien lawfully admitted to the U.S. for permanent residence (a “Qualifying Relative”). The alien must also establish “to the satisfaction of the Attorney General that refusal of admission to the United States of such immigrant alien would cause extreme hardship to the citizen or lawfully resident spouse or parent of such an alien…” Unlike other waivers of inadmissibility under the INA, this particular waiver does not apply to the parent of a citizen (extreme hardship to the alien’s citizen child does not establish qualification for this waiver). However, some exceptions exist, such as the exception for the victims of domestic violence.
Establishing “Extreme Hardship”
Extreme hardship is not defined in the INA, nor is it a fixed and inflexible term; rather it depends on the facts and circumstances of each case. Court cases have provided some guidance for determining eligibility for this type of waiver. In a 1999 case, the Board of Immigration Appeals (BIA) stated that factors to be considered include:
- The presence of Qualifying Relatives in the U.S.;
- The Qualifying Relatives’ family ties outside the U.S.;
- The conditions in the country or countries to which a Qualifying Relative might have to relocate and the extent of the Qualifying Relatives’ ties to such countries;
- The financial impact of departure from the U.S. on the Qualifying Relative; and
- Significant health conditions of the Qualifying Relative, particularly where suitable medical care is unavailable in the country where the Qualifying Relative might have to relocate.
Application of Extreme Hardship by the BIA
In the aforementioned case, the alien, a Mexican citizen married to a naturalized U.S. citizen, admitted his misrepresentations and that he had been convicted of possession of false identification documents. He sought a waiver of inadmissibility based on “extreme hardship” to his wife if he were forced to relocate to Mexico. He claimed they had little money, and thus his wife would be unable to travel back to the U.S. to see her parents here, and that she would have difficulty obtaining employment in Mexico.
The BIA found that the alien did not establish extreme hardship to his spouse in the event he was deported. Neither he nor his wife had any real financial ties to the U.S. The court determined that the alien failed to show “extreme hardship over and above the normal economic and social disruptions involved in the deportation of a family member” and denied his petition for a waiver of inadmissibility. The court also held that the underlying fraud of the alien was an adverse factor that could be considered in denying the waiver.
The grant of a waiver of inadmissibility is purely discretionary, as noted above. The relevant INA provision states that no court “shall have jurisdiction to review a decision or action of the Attorney general” regarding such a waiver. Such decisions are therefore final and not subject to appeal.
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