Please see attached AAO decision Dated September 24, 2020
We at the law firm are pleased to release a copy of our recent win at the Administrative Appeals Office (AAO) in a non-precedent provisional I-212 decision which decided in favor of our client on three points:
- After-acquired equity – The equity of our applicant’s wife being a permanent resident was downgraded in the District Director’s decision as an after-acquired equity and entitled to less weight as his wife had entered the United States with permanent residence following the applicant’s deportation order. We pointed out that the decision conflated the wife’s date of entry with the date of marriage in mistakenly reducing the weight of equities of extreme hardships faced by the spouse and the AAO agreed stating that the record reflected that the applicant had married his spouse 25 years prior to his deportation order and that their four children were born prior to the deportation order.
- Standard of adjudication – The District Director found it unlikely that the applicant could establish extreme hardship to his spouse to qualify for a provisional waiver. The AAO pointed out that extreme hardship to a qualifying relative is not a requirement for permission to reapply for admission, and that positive factors may include the applicant’s respect for law and order, family responsibilities, and hardship to the applicant and other US citizen or lawful permanent resident relatives. The AAO further thought that the Director’s considering the unlikelihood that extreme hardship to the spouse could be established in a later I-601A application in his decision was not within the province of the Director as “[a] provisional waiver application is a separate application for relief, and pursuant to the regulation at 8 CFR §212.7(e)(4)(iv), an individual inadmissible under section 212(a)(9)(A) of the Act for having been removed must obtain permission to reapply for admission before applying for a provisional waiver.” The AAO added a footnote that the applicant could seek the I-212 permission “[i]rrespective of whether a waiver under section 212(a)(9)(B)(v) for unlawful presence will be needed after the applicant departs and regardless of whether he obtains a provisional waiver.”
- Correct consideration of evidence – Besides the Director’s error on the weight to be given to the equity of the permanent resident wife, the AAO took issue with his not fully considering evidence of significant positive equities in the record such as the applicant’s living in the United States for 30 years, having no apparent criminal history, payment of taxes, assisting community and family members, and the applicant’s statement that if forced to leave the United States, he could never have his entire family together again, that he loved his family and would do anything for them, provided care for his wife, used his construction skills to assist friends and neighbors, and helped his son in his restaurant. Also that the submitted evidence included the spouse’s medical report and psychological evaluation showing that she suffered from a host of medical and psychological problems and the spouse’s statement that the applicant did everything he could to keep her healthy and comfortable, and that she would suffer emotionally if she returned to China because she would miss her family members in the US and feared returning to the country where she was forcibly sterilized. The AAO also noted that the Director’s decision did not consider submitted evidence regarding the applicant’s claimed hardships to his US citizen and lawful permanent resident children and grandchildren as well as to himself which included affidavits of the applicant’s US citizen son and grandson.
Although a non-precedent decision, the AAO decision is instructive in addressing points of law at the intersection of a provisional I-212 application for permission to reapply for admission and a later contemplated I-601A application for provisional unlawful presence waiver.