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* The Honorable John Gleeson, of the United States District Court for the Eastern District of New York, sitting by designation. 12-703 Shabaj v. Holder UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT _______________ August Term, 2012 (Argued: October 15, 2012 Decided: January 15, 2013) ________________________________________________________ PAULIN SHABAJ, Plaintiff-Appellant, —v.— ERIC H. HOLDER, JR., Attorney General; DEPARTMENT OF HOMELAND SECURITY; JANET NAPOLITANO, Secretary, Department of Homeland Security; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; LORI SCIALABBA, Deputy Director, United States Citizenship and Immigration Services; ANDREA QUARANTILLO, District Director, New York District Office; PERRY RHEW, Chief, Administrative Appeals Office, Defendants-Appellees. Docket No. 12-703 (ag) ________________________________________________________ B e f o r e : KEARSE and KATZMANN, Circuit Judges, and GLEESON, * District Judge. _______________

212(i) Shabaj v. Holder, No. 12-703 (2nd Cir. 1-15-2013) (unpub.). plus dist crt …

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Page 1: 212(i) Shabaj v. Holder, No. 12-703 (2nd Cir. 1-15-2013) (unpub.). plus dist crt …

* The Honorable John Gleeson, of the United States District Court for the Eastern District ofNew York, sitting by designation.

12-703Shabaj v. Holder

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_______________

August Term, 2012

(Argued: October 15, 2012 Decided: January 15, 2013)

________________________________________________________

PAULIN SHABAJ,

Plaintiff-Appellant,

—v.—

ERIC H. HOLDER, JR., Attorney General; DEPARTMENT OF HOMELAND SECURITY; JANET

NAPOLITANO, Secretary, Department of Homeland Security; UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES; LORI SCIALABBA, Deputy Director, United States Citizenship andImmigration Services; ANDREA QUARANTILLO, District Director, New York District Office;

PERRY RHEW, Chief, Administrative Appeals Office,

Defendants-Appellees.

Docket No. 12-703 (ag)

________________________________________________________

B e f o r e : KEARSE and KATZMANN, Circuit Judges, and GLEESON,* District Judge.

_______________

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212(i) waiver was denied by USCIS and that decision was upheld by AAO. A challenge was filed in District Court which was dismissed for lack of jurisdiction. The 2nd Circuit upheld that dismissal.
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Appeal from a December 21, 2011 judgment of the United States District Court for the SouthernDistrict of New York (Hellerstein, J.) dismissing Plaintiff-Appellant’s complaint for lack ofjurisdiction. We hold that the district court lacked jurisdiction to review the United StatesCitizenship and Immigration Services’ discretionary decision to deny Plaintiff-Appellant’sapplication for a waiver of inadmissibility under 8 U.S.C. § 1182(i)(1) because judicial review ofsuch decisions is available only for “constitutional claims or questions of law raised upon a petitionfor review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D). AFFIRMED.

_______________

MICHAEL P. DIRAIMONDO (Marialaina L. Masi and Stacy A. Huber, on thebrief), DiRaimondo & Masi LLP, Melville, N.Y., for Plaintiff-Appellant.

PATRICIA L. BUCHANAN, Assistant United States Attorney (Sarah S.Normand, Assistant United States Attorney, on the brief), for PreetBharara, United States Attorney for the Southern District of New York,New York, N.Y., for Defendants-Appellees.

_______________

PER CURIAM:

Plaintiff-Appellant Paulin Shabaj (“Shabaj”) appeals from a December 21, 2011

judgment of the United States District Court for the Southern District of New York (Hellerstein,

J.) dismissing his complaint. The judgment was entered in accordance with a December 19,

2011 order holding that the district court lacked jurisdiction to review the decision of the United

States Citizenship and Immigration Services (“CIS”) to deny Shabaj’s application for a waiver of

inadmissibility pursuant to section 212(i) of the Immigration and Nationality Act (“INA”), 8

U.S.C. § 1182(i) (a “212(i) waiver”). Because the plain language of the INA provides that

judicial review of such decisions is available only for “constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court of appeals,” 8 U.S.C. §

1252(a)(2)(D) (emphasis added), the district court correctly determined that it lacked jurisdiction

to adjudicate Shabaj’s claims. The judgment of the district court is therefore AFFIRMED.

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1 Citizens of Italy are eligible to enter the United States under a Visa Waiver Program that allowsindividuals from certain nations to visit the United States without a visa for up to 90 days. SeeShabaj, 602 F.3d at 104.

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BACKGROUND

Shabaj, a native and citizen of Albania, arrived in the United States in November 2000

bearing a false passport of Italy. See Shabaj v. Holder, 602 F.3d 103, 104 (2d Cir. 2010).1

Shabaj was detained upon arrival, and he was referred to an Immigration Judge for an asylum-

only proceeding. Id. Shabaj’s attempts to obtain asylum in the United States ultimately proved

unsuccessful. See generally id. at 104-06.

While asylum proceedings were ongoing, Shabaj married a United States citizen in July

2005. CIS concluded that Shabaj’s marriage was bona fide and approved his wife’s

marriage-based visa petition (immigration form I-130), which allowed Shabaj to file an

application for adjustment of status. However, because Shabaj had attempted to enter the United

States by fraud, he was also required to file an application for a waiver of inadmissibility

pursuant to INA section 212(i), which provides that the Attorney General may, in his discretion,

waive an immigrant alien’s inadmissibility if “the refusal of admission to the United States of

such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse

or parent of such an alien.” 8 U.S.C. § 1182(i); see also Jun Min Zhang v. Gonzales, 457 F.3d

172, 174 (2d Cir. 2006) (indicating that alien who has engaged in immigration fraud cannot

adjust status absent a waiver of inadmissibility under INA § 212(i)).

Shabaj filed two separate applications for adjustment of status and a waiver of

inadmissibility, which CIS denied in February 2007 and January 2009, respectively. On May 2,

2011, CIS’s Administrative Appeals Office (“AAO”) dismissed Shabaj’s appeal, concluding that

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2 The Department of Homeland Security issued a removal order against Shabaj on January 26,2009. In August of 2011, Shabaj agreed to comply with his removal order by purchasing hisown plane ticket to leave the United States, but he subsequently received an administrative stayof his removal until March 30, 2012. Following the expiration of the stay, Shabaj purchased hisown ticket and, on April 28, 2012, departed the United States pursuant to his removal order.

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Shabaj had failed to demonstrate that his U.S. citizen wife would suffer extreme hardship if he

were removed from the United States.

On July 14, 2011, Shabaj filed the instant lawsuit in the United States District Court for

the Southern District of New York. The complaint alleged, inter alia, that CIS’s decision to

deny his section 212(i) waiver application was erroneous as a matter of law. Shabaj maintained

that his action arose under both the Immigration and Nationality Act and the Administrative

Procedures Act (“APA”), 5 U.S.C. § 551 et seq., asserted that the district court had subject

matter jurisdiction under 28 U.S.C. § 1331, and requested that the court “grant relief pursuant to

the APA, the Declaratory Judgment Act, 28 U.S.C. §§ 2201 et seq., and 28 U.S.C.

§ 1361.” Complaint ¶ 1.

On December 19, 2011, the district court issued an order granting the government’s

motion to dismiss the complaint and denying Shabaj’s cross-motion for judgment on the

pleadings. The district court held that it did not have subject matter jurisdiction to

review CIS’s denial of Shabaj’s 212(i) waiver application because 8 U.S.C. § 1182(i)(2)

expressly provides that “[n]o court shall have jurisdiction to review a decision or action of the

Attorney General regarding a waiver [of inadmissibility].” 8 U.S.C. § 1182(i)(2). In reaching

this conclusion, the district court rejected Shabaj’s argument that it had jurisdiction under 8

U.S.C. § 1252(a)(2)(D), because that section permits judicial review of discretionary section

212(i) waivers only for “constitutional claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D).2

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3 See Nethagani v. Mukasey, 532 F.3d 150, 154 n.2 (2d Cir. 2008) (“We have concluded that §1252(a)(2)(B)(ii) strips our jurisdiction to review grants or denials of . . . [h]ardship waivers

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DISCUSSION

“Where a district court grants a defendant’s Rule 12(b)(1) motion to dismiss, an appellate

court will review the district court’s factual findings for clear error and its legal conclusions de

novo.” Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). “[A]

district court may properly dismiss a case for lack of subject matter jurisdiction under Rule

12(b)(1) if it lacks the statutory or constitutional power to adjudicate it.” Id. (internal quotation

marks omitted).

As indicated above, Shabaj’s complaint asserts that CIS’s decision to deny him waiver of

inadmissibility under 8 U.S.C. § 1182(i)(1) was erroneous as a matter of law. However,

subparagraph 2 of § 1182(i) provides that “[n]o court shall have jurisdiction to review a decision

or action of the Attorney General regarding a waiver [of inadmissibility] under paragraph (1).” 8

U.S.C. § 1182(i)(2). Similarly, 8 U.S.C. § 1252 provides that with respect to denials of

discretionary relief, and “regardless of whether the judgment, decision, or action is made in

removal proceedings,” “no court shall have jurisdiction to review . . . any judgment regarding the

granting of relief under section [1182(i)].” 8 U.S.C. § 1252(a)(2)(B); see also Jun Min Zhang,

457 F.3d at 175 (“The REAL ID Act of 2005 instructs us to treat this petition [for review of the

Board of Immigration Appeals’ determination that an alien does not satisfy the extreme-hardship

standard of § 1182(i)(1)] as a petition for review under 8 U.S.C. § 1252.”). The § 1182(i)(1)

hardship determination is discretionary, see Camara v. Dep't of Homeland Sec., 497 F.3d 121,

124 (2d Cir. 2007) (per curiam), and we therefore lack jurisdiction to review it unless an

exception to 8 U.S.C. §1252(a)(2)(B) applies.3

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under 8 U.S.C. § 1182(i).”); Camara, 497 F.3d at 124 (“[W]e lack jurisdiction to reviewchallenges to factual and discretionary determinations leading to the denial of a petition forreview where a jurisdiction-denying provision of the INA is implicated, unless, of course, thepetitioner raises a constitutional claim or a question of law.”).

4 Indeed, this Court denied Shabaj’s petition for review of his removal order over two years ago. See Shabaj, 602 F.3d at 106. Although Shabaj is ineligible to reopen his removal proceedingsand file a petition for review because of his participation in the Visa Waiver Program, see 8U.S.C. § 1187(b), we do not mean to preclude a petitioner who is otherwise eligible to reopenproceedings from attempting to reopen those proceedings in order to raise legal challenges tohardship rulings by the AAO. Under those circumstances, as permitted by § 1252(a)(2)(D), wewould have jurisdiction over any “constitutional claims or questions of law” raised by petitionsfor review to this court.

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The exception Shabaj relies on is codified at 8 U.S.C. § 1252(a)(2)(D), which provides:

Nothing in subparagraph (B) or (C), or in any other provision of this Act (otherthan this section) which limits or eliminates judicial review, shall be construed asprecluding review of constitutional claims or questions of law raised upon apetition for review filed with an appropriate court of appeals in accordance withthis section.

Shabaj argues that because his claims purportedly raise “constitutional claims or questions of

law,” § 1252(a)(2)(D) applies and the denial of those claims is subject to judicial review. See,

e.g., Sumbundu v. Holder, 602 F.3d 47, 54 (2d Cir. 2010) (noting that courts of appeals retain

jurisdiction to review the agency’s hardship determinations for constitutional claims and

questions of law).

Even assuming, however, that Shabaj’s complaint actually had raised “constitutional

claims or questions of law,” Shabaj’s argument ignores the statute’s requirement that any such

claims must be raised “upon a petition for review filed with an appropriate court of appeals.” 8

U.S.C. § 1252(a)(2)(D) (emphasis added). Thus, while this court would have jurisdiction to

review any constitutional claims or questions of law raised by Shabaj in a petition for review of

CIS’s hardship determination, the district court did not.4

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Shabaj correctly points out that at least two district courts in this Circuit have exercised

jurisdiction to review purported errors of law in CIS’s hardship determinations. See Saati v.

Holder, 10 Civ. 1345 (MAD/DEP), 2011 WL 2975478 (N.D.N.Y. July 21, 2011); Chen v.

Napolitano, 651 F. Supp. 2d 63 (S.D.N.Y. 2009). Those decisions, however, never addressed or

acknowledged, as they should have, the limitation in § 1252(a)(2)(D) providing that petitions for

review raising constitutional claims or questions of law must be filed in the appropriate court of

appeals.

Finally, relying largely on our decision in Sharkey v. Quarantillo, 541 F.3d 75 (2d Cir.

2008), Shabaj argues that jurisdiction was proper in the district court under the APA and 28

U.S.C. § 1331. However, the judicial review provisions of the APA do not apply “to the extent

that . . . statutes preclude judicial review.” 5 U.S.C. § 701(a)(1). In this case, judicial review of

CIS’s hardship ruling is precluded by 8 U.S.C. § 1182(i)(2) and 8 U.S.C. § 1252(a)(2)(B).

Although we held in Sharkey that 8 U.S.C. § 1252(a)(2)(B) did not strip the district court of

jurisdiction to consider Sharkey’s claims that CIS previously granted her legal permanent

resident (“LPR”) status, owed her proof of that status, and unlawfully rescinded that status, our

decision was based on the fact that none of Sharkey’s claims would “subject to judicial review

any discretionary decision by the agency.” Sharkey, 541 F.3d at 85. Rather, the district court in

that case would “simply seek to determine what decision was made, not whether the decision

was correct or a proper exercise of discretion.” Id; see also id. at 86 (“Section 1252(a)(2)(B)(i)

does not bar the district court from deciding Sharkey’s unlawful rescission claim because the

agency has a non-discretionary duty to commence rescission procedures prior to rescinding LPR

status . . . .”); id. at 87 (“[B]ecause the agency has a non-discretionary duty to provide LPRs with

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proof of their status, Section 1252(a)(2)(B) does not strip the district court of jurisdiction to

review whether Sharkey is owed proof of her status.” (internal citation omitted)). In this case, by

contrast, Shabaj seeks “de novo review of [his] waiver application,” Pl.’s Br. at 5, which would

subject to judicial review CIS’s discretionary determination that Shabaj should not be granted a

waiver of inadmissibility. Thus, Sharkey is inapplicable, and Shabaj’s claim must fail.

CONCLUSION

Because the district court properly concluded that it lacked jurisdiction to adjudicate this

case, we need not consider the government’s remaining arguments that Shabaj’s removal from

the United States renders this appeal moot and that Shabaj failed to identify any legal errors in

CIS’s decision. For the reasons stated herein, the order of the district court is AFFIRMED.

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The court rightly limited itself to a basic argument of "jurisdiction" and STOPPED, as it should. The best way to keep from saying the wrong thing is to keep your mouth shut.
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.. USDCSDNYUNITED STATES DISTRICT COURT DOCl'ME:>;TSOUTHERN DISTRICT OF NEW YORK ELECTRO:-iICALLY FILED

--------.----..----------------------------------.------------- x , 1)( II , .

•, " J ED: 1a.1 dlll/PAULIN SHABAJ,

ORDER GRANTING Plaintiff, DEFENDANTS' MOTION TO

DISMISS AND DENYING -against- PLAINTIFF'S CROSS MOTION

FOR JUDGMENT ON THE ERIC HOLDER, ATTORNEY GENERAL OF PLEADINGS THE UNITED STATES, et at.

II Civ. 4871 (AKH) Defendants.

--------------------------------------------------------------- x ALVIN K. HELLERSTEIN, U.S.DJ.:

Plaintiff Paulin Shabaj has challenged the May 2, 20 II United States Citizenship

and Immigration Services' (CIS) decision denying his application for a waiver of inadmissibility

to the United States. Defendants have moved to dismiss this challenge for lack of subject matter

jurisdiction. Because I do not have constitutional or statutory power to adjudicate this case, I

grant Defendants' Motion. See Makarova v. United States of America, 210 F.3d 110, 113 (2d

Cir. 2000) ("A case is properly dismissed for lack of subject matter jurisdiction under Rule

l2(b)( I ) when the district court lacks the statutory or constitutional power to adjudicate it.")

CIS has deemed Shabaj "inadmissible" to the United States under 8 U.S.C. §

I 182(a)(6)(C) because hc attempted to enter the country by fraud in 2000, Plaintiff's

Memorandum at 2. Shabaj, after marrying an American citizen in July of 2005, sought a waiver

ofhis inadmissibility under 8 U.S.C. § 1182(i)(I), which holds, "The Attorney General may, in

the discretion of the Attorney General, waive the application of c1ausc (i) of subsection (a)(6)(C)

in the case of an immigrant who is the spouse ... of a United States citizen ... if it is established

to the satisfaction of the Attorney General that the refusal of admission to the United States of

such immigrant alien would result in extreme hardship to the citizen ...." U.S.C. § I 182(i)(1)

The Attorney General, however, after reviewing the hardship imposed on Shabaj's spouse, chose I

Case 1:11-cv-04871-AKH Document 15 Filed 12/19/11 Page 1 of 3

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not to exercise this discretion, and denied Shabaj a waiver, an action Shabaj now challenges in

this Court. But subparagraph 2 of § 1 1 82(i) sets out in no uncertain terms: "No court shall have

jurisdiction to review a decision or action of the Attorney General regarding a waiver under

paragraph (I )." 8 U.S.C. § I I 82(i)(2).

Nonetheless, the Second Circuit has held that there may be times when judicial

review of a denial of certain waivers may be appropriate if there are "constitutional claims" or

"questions of law" involved. See Hoffi'TIan das Silva v. Holder, 330 Fed. Appx. 255, 256·257

(2d Cir. 2009) (unpublished opinion) ("This Court generally lacks jurisdiction to review

discretionary decisions such as the denial ofa waiver of removal under section 2l2(i) of the

[Immigration and Nationality Act] .... However, we retain jurisdiction over constitutional

claims and questions oflaw."); lun Min Zhang v. Gonzales, 457 F.3d 172, 175-76 (2d Cir. 2006)

(finding no jurisdiction to review a waiver of inadmissibility but noting also that judicial review

was not appropriate because "the instant petition ... does not raise any 'constitutional claims or

questions of law' ...."). This potential authority to review a waiver of inadmissibility as to

"questions oflaw" stems from 8 U.S.C. § 1252(a)(2), subparagraphs (B) and (0). Subparagraph

(B) reads:

Notwithstanding any other provision oflaw (statutory or nonstatutory), ... and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no eourt shall have jurisdiction to review-­

(i) any judgment regarding the granting ofrelief under [1182(i)] ...

8 U.S.C. § l2S2(a)(2)(B) (emphasis added). Subparagraph (D), the exception to the lack of

jurisdiction, reads:

Nothing in subparagraph (B) or (C), or in any other provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions oflaw raised upon a petition for review filed with an appropriate court ofappeals in accordance with this section.

2

Case 1:11-cv-04871-AKH Document 15 Filed 12/19/11 Page 2 of 3

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8 U.S.C. § 1252(a)(2)(D) (emphasis added). It is this "question of law" exception that Shabaj

attempts to use to confer upon this Court judicial review of his denial of inadmissibility.

Plaintiff's Memorandum at 5. However, the 12S2(a)(2)(D) exception applies to review of claims

"raised upon a petition for review filed with an appropriate court ofappeals." As this Court is a

federal district court, [ do not have jurisdiction over this matter.

For the foregoing reasons, 8 U.S.C. § 1182(i)(2) and 8 U.S.C. § 12S2(a)(2)(B) and

(D) preclude jurisdiction over Plaintiff Shabaj' s claim. Therefore, Defendant's Motion to

Dismiss is granted, and Plaintiff's Cross Motion for Judgment on the Pleadings is denied.

'Ibe oral argument scheduled on December 19, 2011 is canceled.

The Clerk shall terminate the case.

SO ORDERED.

Dated: December ~ 2011 New York, New York

United States District Judge

3

Case 1:11-cv-04871-AKH Document 15 Filed 12/19/11 Page 3 of 3

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1 leted to -\dentifying 1ata e ted pnwent clearly UX:~~~ laWSion of petsOlWl pa

PUBLIC COpy

DATE: MAY OJ 2011

IN RE: Applicant:

Office:

U.S. Department of Homeland Security U.S. Citizenship and Immigration Services Administrative Appeals Office (AAO) 20 Massachusetts Ave., N.W., MS 2090 Washinw.n. DC 205,9-2090 U.S. CitizenShip and Immigration Services

FILE:

APPLICATION: Application for Waiver of Grounds of Inadmissibility under section 212(i) of the Immigration and Nationality Act, 8 U.S.C. § I I 82(i)

ON BEHALF OF APPLICANT:

INSTRUCTIONS:

Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents related to this matter have been returned to the office that originally decided your case. Please be advised that any further inquiry that you might have concerning your case must be made to that office.

If you believe the law was inappropriately applied by us in reaching our decision, or you have additional information that you wish to have considered, you may file a motion to reconsider or a motion to reopen. The specific requirements for filing such a request can be found at 8 C.F.R. § 103.5. All motions must be submitted to the office that originally decided your case by filing a Form 1-290B, Notice of Appeal or Motion, with a fee of $630. Please be aware that 8 C.F.R. § 103.5(a)(I)(i) requires that any motion must be filed within 30 days of the decision that the motion seeks to reconsider or reopen.

Thank you, W _~. ~'7·t ~

~.,r Perry Rhew Chief, Administrative Appeals Office

www.uscis.gov

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DISCUSSION: The waiver application was denied by the District Director and is now before the Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed.

The record establishes that the applicant, a native and citizen of_ attempted to procure entry to the United States in November 2000 by presenting a photo-substituted Italian passport.' The applicant was thus found to be inadmissible to the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted to procure entry into the United States by fraud or willful misrepresentation. The applicant does not contest this finding of inadmissibility. Rather, he seeks a waiver of inadmissibility pursuant to section 212(i) of the Act, 8 U.S.C. § 1182(i), in order to reside in the United States with his U.S. citizen spouse.

The district director concluded that the applicant had failed to establish that extreme hardship would be imposed on a qualifying relative and denied the Application for Waiver of Grounds of Inadmissibility (Form 1-601) accordingly. Decision of the District Director, dated January 26, 2009.

In support of the appeal, counsel for the applicant submits a brief and referenced attachments. The entire record was reviewed and considered in rendering this decision.

Section 212(a)(6)(C) ofthe Act provides, in pertinent part:

(i) Any alien 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 this Act is inadmissible.

Section 212(i) of the Act provides, in pertinent part:

(1) The Attorney General [now the Secretary of Homeland Security (Secretary)] may, in the discretion of the Attorney General [Secretary], waive the application of clause (i) of subsection (a)(6)(C) in the case of an alien 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 [Secretary] that the refusal of admission to the United States

I Counsel notes, on appeal, that the applicant, after presenting a photo-substituted passport, immediately requested political asylum. Brief in Support of Appeal. Pursuant to the record, the applicant attempted entry to the United States by presenting a photo-substituted passport. Based on the immigration officer's suspicion that the passport was

fraudulent, the applicant was referred to secondary inspection. It was at that point that the applicant admitted his true identity and requested asylum. See Record of Sworn Statement in Administrative Proceedings, dated November 11, 2000.

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of such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien.

A waiver of inadmissibility under section 2l2(i) ofthe Act is dependent on a showing that the bar to admission imposes extreme hardship on a qualifYing relative, which includes the U.S. citizen or lawfully resident spouse or parent of the applicant. Hardship to the applicant can be considered only insofar as it results in hardship to a qualifying relative. The applicant's U.S. citizen spouse is the only qualifYing relative in this case. If extreme hardship to a qualifYing relative is established, the applicant is statutorily eligible for a waiver, and USeIS then assesses whether a favorable exercise of discretion is warranted. See Matter 0/ Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996).

As a qualifying relative is not required to depart the United States as a consequence of an applicant's inadmissibility, two distinct factual scenarios exist should a waiver application be denied: either the qualif'ying relative will join the applicant to reside abroad or the qualifying relative will remain in the United States. Ascertaining the actual course of action that will be taken is complicated by the fact that an applicant may easily assert a plan for the qualifYing relative to relocate abroad or to remain in the United States depending on which scenario presents the greatest prospective hardship, even though no intention exists to carry out the alleged plan in reality. Cf Matter o/Ige, 20 I&N Dec. 880, 885 (BIA 1994) (addressing separation of minor child from both parents applying for suspension of deportation). Thus, we interpret the statutory language of the various waiver provisions in section 212 of the Act to require an applicant to establish extreme hardship to his or her qualifying relative(s) under both possible scenarios. To endure the hardship of separation when extreme hardship could be avoided by joining the applicant abroad, or to endure the hardship of relocation when extreme hardship could be avoided by remaining in the United States, is a matter of choice and not the result of removal or inadmissibility. As the Board of Immigration Appeals stated in Matter o/Ige:

[W]e consider the critical issue ... to be whether a child would suffer extreme hardship if he accompanied his parent abroad. If, as in this case, no hardship would ensue, then the fact that the child might face hardship if left in the United States would be the result of parental choice, not the parent's deportation.

Id See also Matter o/Pilch, 21 I&N Dec. 627, 632-33 (BIA 1996).

Extreme hardship is "not a definable term of fixed and inflexible content or meaning," but "necessarily depends upon the facts and circumstances peculiar to each case." Matter 0/ Hwang, 10I&N Dec. 448,451 (BIA 1964). In Matter o/Cervantes-Gonzalez, the Board provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifYing relative. 22 I&N Dec. 560, 565 (BrA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifYing relative's family ties outside the United States; the conditions in the country or countries to which the qualifYing relative would relocate and the extent of the qualifying relative's ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an

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unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The Board added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list off actors was not exclusive. Id. at 566.

The Board has also held that the common or typical results of deportation, removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one's present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Matter 0/ Cervantes­Gonzalez, 22 I&N Dec. at 568; Matter 0/ Pilch, 21 I&N Dec. at 631-32; Matter o/Ige, 20 I&N Dec. at 883; Matter 0/ Ngai, 19 I&N Dec. 245, 246-47 (Comm'r 1984); Matter 0/ Kim, 15 I&N Dec. 88, 89-90 (BrA 1974); Matter a/Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

However, though hardships may not be extreme when considered abstractly or individually, the Board has made it clear that "[r]elevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists." Matter 0/ D-J-D-, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter o/Ige, 20 I&N Dec. at 882). The adjudicator "must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation." Id.

We observe that the actual hardship associated with an abstract hardship factor such as family separation, economic disadvantage, cultural readjustment, et cetera, differs in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships. See, e.g., In re Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter 0/ Pilch regarding hardship faced by qualifying relatives 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 they would relocate).

Family separation, for instance, has been found to be a common result of inadmissibility or removal in some cases. See Matter 0/Shaughnes5Y, 12 I&N Dec. at 813. Nevertheless, family ties are to be considered in analyzing hardship. See Matter 0/ Cervantes-Gonzalez, 22 I&N Dec. at 565-66. The question of whether family separation is the ordinary result of inadmissibility or removal may depend on the nature of family relationship considered. For example, in Matter 0/ Shaughnessy, the Board considered the scenario of parents being separated from their soon-to-be adult son, finding that this separation would not result in extreme hardship to the parents. Id. at 811-12; see also U. S. v. Arrieta, 224 F 3d 1076, 1082 (9th Cir. 2000) ("Mr. Arrieta was not a spouse, but a son and brother. It was evident from the record that the effect of the deportation order would be separation rather than relocation."). In Matter a/Cervantes-Gonzalez, the Board considered the scenario of the respondent's spouse accompanying him to Mexico, finding that she would not experience extreme

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hardship from losing "physical proximity to her family" in the United States. 22 I&N Dec. at 566-67.

The decision in Cervantes-Gonzalez reflects the norm that spouses reside with one another and establish a life together such that separating from one another is likely to result in substantial hardship. It is common for both spouses to relocate abroad if one of them is not allowed to stay in the United States, which typically results in separation from other family members living in the United States. Other decisions reflect the expectation that minor children will remain with their parents, upon whom they usually depend for financial and emotional support. See, e.g., Matter of Jge, 20 I&N Dec. at 886 ("[I]t is generally preferable for children to be brought up by their parents."). Therefore, the most important single hardship factor may be separation, particularly where spouses and minor children are concerned. Salcido-Salcido, 138 F.3d at 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983»; Cerrillo-Perez, 809 F.2d at 1422.

Regardless of the type offamily relationship involved, the hardship resulting from family separation is determined based on the actual impact of separation on a qualifying relative, and all hardships must be considered in determining whether the combination of hardships takes the case beyond the consequences ordinarily associated with removal or inadmissibility. Matter of O-J-O-, 21 I&N Dec. at 383. Nevertheless, though we require an applicant to show that a qualifying relative would experience extreme hardship both in the event of relocation and in the event of separation, in analyzing the latter scenario, we give considerable, if not predominant, weight to the hardship of separation itself, particularly in cases involving the separation of spouses from one another and/or minor children from a parent. Salcido-Salcido, 138 F.3d at 1293.

The applicant's U.S. citizen spouse asserts that she will suffer emotional and financial hardship were she to reside in the United States while the applicant relocated abroad due to his inadmissibility. In a declaration, the applicant's spouse explains that her life with the applicant is completely intertwined, and one could not survive without the other. She notes that she and the applicant share all household responsibilities and do everything together. In addition, the applicant's spouse states that she and her husband started a business, where she is President and handles all administrative duties while her husband is the carpenter. She contends that were the applicant to relocate abroad, the business could not exist and all that they have worked for would be destroyed. Declaration o~dated January 12,2009.

In support, a psychological report has been provided Dr._ notes, after a two hour interview with the applicant and his spouse, that the applicant's spouse is suffering from Adjustment Disorder with anxiety and depression due to the threat of her husband's removal and concludes that were the applicant to relocate abroad, his wife would suffer psychological trauma and hardship. Psychological Report Ph.D. dated March 23, 2008. In addition, evidence of the incorporation of as of March 10, 2008, has been submitted.

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With respect to the emotional hardship referenced, although the input of any mental health professional is respected and valuable, the AAO notes that the submitted report is based on a single interview between the applicant's spouse and the psychologist. The record fails to reflect an ongoing relationship between a mental health professional and the applicant's spouse. Moreover, the conclusions reached in the submitted evaluation, being based on a single interview, do not reflect the insight and elaboration commensurate with an established relationship with a psychologist, thereby rendering the psychologist's findings speculative and diminishing the evaluation's value to a determination of extreme hardship. It has also not been established that the applicant's spouse is unable to travel to _to visit the applicant on a regular basis. Going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Matter of SojJiei, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)).

As for the hardships the applicant's spouse contends she will incur with respect to their business, no documentation has been provided establishing the current business obligations and financial viability, including profits and losses, income and expenses. Nor has it been established that without the applicant's physical presence in the United States, the business would be unable to survive and that such a predicament would cause the applicant's spouse extreme hardship. The AAO notes that the applicant's spouse, irrespective of her and her husband's construction business, has been !;;<lollHUH.

nl"""rl since 2005 as a Sales Person, earning over $43,000. See Letter from January 9, 2009. Nor has counsel provided documentation of

the applicant's and his spouse's personal income, expenses, and overall financial situation to support the assertion that were the business to suffer due to the applicant's relocation abroad, the applicant's spouse would experience hardship. Finally, counsel has failed to establish that the applicant will be unable to obtain gainful employment in_that will permit him to assist his wife financially in the United States should the need arise.

The AAO recognizes that the applicant's spouse will endure hardship as a result of long-term separation from the applicant. However, her situation, if she remains in the United States, is typical to individuals separated as a result of removal and does not rise to the level of extreme hardship based on the record. The AAO concludes that based on the evidence provided, it has not been established that the applicant's spouse will experience extreme hardship were she to remain in the United States while the applicant resides abroad due to his inadmissibility.

Extreme hardship to a qualitying relative must also be established in the event that he or she accompanies the applicant abroad based on the denial of the applicant's waiver request. In a declaration, the applicant's spouse explains that she was born in the United States and her parents and three siblings reside in _ and were she to relocate abroad, she would suffer hardship due to long-term separation from her family. She further explains that she visited _ before and cannot imagine living there. She references the substandard economy and the inability to obtain gainful employment in her area of expertise. Supra at 1-2. notes that the applicant's spouse does not read or speak _ Supra at 6.

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The record reflects that the applicant's U.S. citizen spouse, born and raised in the United States, would be relocating to a country to which she is not familiar. She would be unable to communicate as she does not speak the language. She would have to leave her support network of family, friends, her community and her long-term gainful employment, thereby causing her career and professional disruption. She would also be concerned about the substandard economy and its impact on her quality of living.2 It has thus been established that the applicant's spouse would suffer extreme hardship were she to relocate abroad to reside with the applicant due to his inadmissibility.

A review of the documentation in the record, when considered in its totality, reflects that the applicant has failed to show that his U.S. citizen spouse would suffer extreme hardship if he were removed from the United States. The record demonstrates that the applicant's spouse faces no greater hardship than the unfortunate, but expected, disruptions, inconveniences, and difficulties arising whenever a spouse is removed from the United States or refused admission. Having found the applicant statutorily ineligible for relief, no purpose would be served in discussing whether the applicant merits a waiver as a matter of discretion.

In proceedings for application for waiver of grounds of inadmissibility under section 2l2(i) of the Act, the burden of proving eligibility remains entirely with the applicant. Section 291 of the Act, 8 U.S.C. § 1361. Here, the applicant has not met that burden. Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed. The waiver application is denied.

2 The U.S. Department of State confirms that per capita income is among the lowest in Europe. Country

Specific Information-Albania, u.s. Department of State, dated January 28, 2011.