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Print Prt3447310925969269090.Tif U.S. Department of Homeland Security U.S. Citizenship and Immigration Service Office ofAd ministrative Appeals 20 Massachusetts Ave., N.W., MS 2090 Washington, DC 20529-2090 U.S. Citizenship and Immigration Services (b)(6) Date: AUG 0 1 2013 Office: GUANGZHOU, CHINA FILE: IN RE: Applicant: APPLJCA TION: Application for Waiver of Grounds of Inadmissibility under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182(h). ON BEHALF OF APPLICANT: INSTRUCTIONS: Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form l-290B) within 33 days of the date of this decision. Please review the Form I-290B instructions at http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. See also 8 C.F .R § I 03.5 . Do not file a motion directly with the AAO. Thank you, A~~ .J._J/.-,.r Ron Rosenberg Acting Chief, Administrative Appeals Office www.uscis.gov (b)(6) NON-PRECEDENTDEC§ION Page 2 DISCUSSION: The Administrative Appeals Office (AAO) previously dismissed the applicant's appeal in a decision dated November 20, 2012. The matter is now before the AAO on motion. The motion will be granted and the prior AAO decision will be affirmed. The applicant is a native and citizen of China who 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, and section 212(a)(9)(A)(ii) of the Act, 8 U.S.C. § 1182(a)(9)(A)(ii), for seeking admission within ten years of having been ordered removed from the United States. The applicant is the son of a U.S. citizen father and lawful permanent resident mother, the spouse of a U.S. citizen, and the father ofU.S. citizen children. He seeks a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. § 1182(h), in order to reside in the United States with his family. The Field Office Director, Guangzhou, China, concluded that the applicant had failed to establish that a denial of his waiver application would result in extreme hardship to a qualifying relative and denied the application accordingly. See Decision of Field Office Director, dated June 24, 2010. The applicant appealed to the AAO, asserting that his parents, spouse, and children would suffer extreme financial, physical, and emotional hardship if his waiver application were denied. In our decision on appeal, the AAO found that the applicant's conviction for robbery was a violent or dangerous crime and that he therefore must establish exceptional and extremely unusual hardship to a qualifying relative in order to meet the heightened discretionary requirement of 8 C.F.R. § 212.7(d). However, we also found that the applicant had failed to demonstrate extreme hardship to a qualifying relative, so it was unnecessary to reach the issue of exceptional and extremely unusual hardship. See Decision ofAAO , dated November 20, 2012. On motion, counsel for the applicant asserts that the AAO erred in finding that none of his qualifying relatives would face extreme hardship if the waiver application were denied. Counsel alleges that the AAO "overlooked certain important evidence of extreme hardship or misinterpreted the evidence ...." Form I-290B, dated December 20, 2012. Furthermore, counsel contends that the applicant has submitted new evidence on motion which establishes the necessary hardship to his qualifying relatives. Id. A motion to reopen must state the new facts to be proved in the reopened proceeding and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must establish that the decision was based on an incorrect application of law or Service policy. 8 C.F.R. § 103 .5(a)(3). A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. § 103.5(a)(4). The AAO conducts appellate review on a de novo basis. See Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004). The applicant has submitted new evidence with his motion, so the motion will be granted. The record now includes, but is not limited to: medical records relating to the applicant's sons, spouse, parents, and brother; psychological evaluations regarding the qualifying spouse; financial and business records; a draft bill on exit and entry provisions in China; country conditions (b)(6) NON-PRECEDENT DECISION Page 3 information; statements from the applicant, his spouse, his parents, and his brother; letters of support; and documentation relating to the applicant's criminal history. The entire record was reviewed and considered in rendering this decision. The applicant has not contested the AAO's finding that he is inadmissible under section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(2)(A)(i)(I), for having been convicted of a crime involving moral turpitude. Also, the applicant has not disputed our finding that his conviction for robbery was a violent or dangerous crime which renders him subject to the heightened discretionary requirement of 8 C.F.R. § 212.7(d). Therefore, the only issues on motion are whether the applicant has demonstrated extreme hardship to a qualifying relative and whether he has established that he merits a favorable exercise of discretion through a showing of exceptional and extremely unusual hardship. Section 212(h) states, in pertinent part: The Attorney General [Secretary of Homeland Security] may, in his discretion, waive the application of subparagraph (A)(i)(I) ... of subsection (a)(2) ... if- (B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General [Secretary] that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien .... Section 212(h) of the Act provides that a waiver of the bar to admission resulting from violation of section 212(a)(2)(A)(i)(I) of the Act is dependent first upon a showing that the bar imposes an extreme hardship to the citizen or lawfully resident spouse, parent, son, or daughter of the applicant. Hardship to the applicant is not a consideration under the statute and will be considered only to the extent that it results in hardship to a qualifying relative. However, once eligibility for a waiver is established, it is but one favorable factor to be considered in the determination of whether the Secretary should exercise discretion in favor of the waiver. See Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). A favorable exercise of discretion is limited in the case of an applicant who has been convicted of a violent or dangerous crime. Specifically, 8 C.F.R. § 212.7(d) states: The Attorney General [Secretary, Department of Homeland Security], in general, will not favorably exercise discretion under section 212(h)(2) ofthe Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission (b)(6) NON-PRECEDENTDEC§JON Page 4 to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212( a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien's underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act. In our decision on appeal, we found that the applicant's conviction for third degree robbery in violation of NYPL § 160.5 is a violent or dangerous crime because he must have used or threatened physical force against his victim. The applicant has not disputed our finding on motion. Therefore, the applicant is subject to the heightened discretionary standard under 8 C.F.R. § 212.7(d) and must show that "extraordinary circumstances" warrant approval of the waiver. Extraordinary circumstances may exist in cases involving national security or foreign policy considerations, or if the denial of the applicant's admission would result in exceptional and extremely unusual hardship. !d. Finding no evidence of foreign policy, national security, or other extraordinary equities in this case, the AAO will consider whether the applicant has "clearly demonstrate[ d] that the denial of . admission as an immigrant would result in exceptional and extremely unusual hardship" to a qualifying relative. !d. We acknowledge that our decision on appeal focused on whether the applicant had demonstrated that a qualifying relative would experience extreme hardship if his waiver application were denied. However, even if the applicant demonstrates extreme hardship, his conviction for a violent crime means that he cannot establish eligibility for a waiver under section 212(h) without a showing of exceptional and extremely unusual hardship.
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