Section 212(i) Waiver of Misrepresentation or Fraud
Under section 212(a)(6)(C)(i) of the Act, an alien who, by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, or admission into the United States or other benefit provided under the Act, is inadmissible. However, the Attorney General may, in his discretion, waive the application of section 212(a)(6)(C)(i) of the Act in the case of an immigrant who is the spouse, son, or daughter of a United States citizen or of an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the refusal of admission to the United States of the alien would result in extreme hardship to the citizen or lawful resident spouse or parent of the alien. INA 212(i).
The Attorney General may also waive the application of section 212(a)(6)(C)(i) for aliens classified under INA 204(a)(1)(A)(iii)-(iv) and (B)(ii)-(iii) if the alien demonstrates extreme hardship to the alien or the alien’s U.S. citizen, lawful permanent resident, or qualified alien parent or child. INA 212(i); see also Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999). This waiver was created by Congress to help unite families and preserve family ties composed of United States citizens or lawful permanent residents. See Matter of Tijam, 22 I&N Dec. 408, 416-417 (BIA 1998). To be eligible under section 204(a)(1)(A)(iii)-(iv) of the Act, the alien must be a spouse, child, or parent of a U.S. citizen and the alien or a child of the alien must have been battered or have been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse. Under section 204(a)(1)(B)(ii)-(iii) of the Act, the spouse or child of a lawful permanent resident of the U.S. is also eligible for a waiver where the alien or the alien’s child has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse. Other conditions also apply to the granting of a section 212(i) waiver for aliens classified under INA 204(a)(1)(A)(iii)-(iv) and (B)(ii)-(iii).
“Extreme hardship” is not a definable term of fixed and inflexible meaning, and the elements to establish such hardship are dependent upon the facts and circumstances of each case. Matter of Pilch, 21 I&N Dec. 627, 630 (BIA 1997); see also Matter of L-O-G, 21 I&N Dec. 413 (BIA 1997); Matter of Chumpitazi, 16 I&N Dec. 629, 635 (BIA 1978). The factors to be considered in determining extreme hardship to a qualifying relative pursuant to section 212(i) include, but are not limited to, the presence of family ties to this country; the qualifying relative’s family ties outside the United States; the conditions in the country or countries to which the qualifying relatives would relocate and the extent of the qualifying relative’s ties to such countries; the financial impact of departure from this country; and significant health conditions, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate. See Matter of Cervantes, 22 I&N Dec. at 566; see also INS v. Jong Ha Wang, 450 U.S. 139 (1981). The Attorney General can consider the applicant’s underlying fraud as an adverse factor in denying him relief under section 212(i) of the Act. See Matter of Cervantes, 22 I&N Dec. at 569; see also Matter of Tijam , 22 I&N Dec. 408 (BIA 1998).
A section 212(i) waiver cannot be granted to an alien who, under INA 212(a)(6)(C)(ii), falsely represents, or has falsely represented himself or herself to be a citizen of the U.S. for any purpose or benefit under the Act or any other Federal or State law.