MATTER OF E-F-S-

Non-Precedent Decision of the Administrative Appeals Office

DATE: FEB. 9, 2016

APPEAL OF SAN FRANCISCO FIELD OFFICE DECISION

APPLICATION: FORM I-212, APPLICATION FOR PERMISSION TO REAPPLY FOR ADMISSION INTO THE UNITED STATES AFTER DEPORTATION OR REMOVAL

The Applicant, a native and citizen of Mexico, seeks permission to reapply for admission into the United States. See Immigration and Nationality Act (the Act) § 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii). The Field Office Director, San Francisco, California, denied the application. The matter is now before us on appeal. The appeal will be sustained.

The Applicant is currently a beneficiary of an approved Form I-130, Petition for Alien Relative. The Applicant now seeks permission to reapply for admission into the United States under section 212(a)(9)(C)(ii) of the Act, 8 U.S.C. § 1182(a)(9)(C)(ii), in order to reside in the United States with her U.S. citizen children.

The Applicant was found inadmissible to the United States pursuant to section 212(a)(9)(C)(i)(I) of the Act, 8 U.S.C. § 1182(a)(9)(C)(i)(I). In a decision dated December 15, 2014, the Director determined that the Applicant did not submit documentation sufficient to illustrate that she remained outside of the United States for ten years following her voluntary departure on March 21, 2004. The Form I-212 was denied accordingly.

On appeal, the Applicant asserts that she has remained outside of the United States since her departure in 2004. The Applicant also submits new evidence supporting her claim of being outside ofthe United States since 2004.

The record includes, but is not limited to, the Applicant's statements, statements from friends and family of the Applicant, identification records, immigration records, educational records, financial records, photographs, medical records, and documents in Spanish that were not translated into English. The entire record was reviewed and considered, except for the untranslated documents, in rending this decision. 1

1 Untranslated documents cannot be considered per the regulation at 8 C.F.R. § 1 03.2(b)(3).

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Section 212(a)(9) of the Act states in pertinent part:

(C) Aliens unlawfully present after previous immigration violations.-

(i) In general. Any alien who-

(I) has been unlawfully present in the United States for an aggregate period of more than 1 year, or

(II) has been ordered removed under section 235(b)(1), section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible.

(ii) Exception. Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary has consented to the alien's reapplying for admission.

The record reflects that the Applicant entered the United States without inspection in July 1987, subsequently departed the United States, and re-entered the United States without inspection in 1990. She departed the United States on August 14, 1998, and subsequently re-entered the United States in August 1998 without inspection. The Applicant accrued unlawful presence from April 1, 1997, the effective date of unlawful provisions under the Act, until her departure in August 1998. She is inadmissible to the United States under section 212(a)(9)(C)(i)(I) of the Act, for having been unlawfully present in the United States for an aggregate period of more than one year and re-entering the United States without being admitted. The Applicant does not contest this ground of inadmissibility.

An individual who is inadmissible under section 212(a)(9)(C) of the Act may not apply for consent to reapply for admission unless the alien has been outside the United States for more than 10 years since the date of the alien's last departure from the United States. See Matter of Torres-Garcia, 23 I&N Dec. 866 (BIA 2006); Matter of Briones, 24 I&N Dec. 355 (BIA 2007); and Matter of Diaz and Lopez, 25 I&N Dec. 188 (BIA 2010). Thus, to avoid inadmissibility under section 212(a)(9)(C) of the Act, it must be the case that the Applicant's last departure was at least ten years ago, the Applicant has remained outside the United States, and USCIS has consented to the Applicant' s reapplying for admission.

The record reflects that Applicant departed the United States on March 21, 2004. The record includes several statements related to the Applicant remaining outside of the United States for ten years. The Applicant asserts that she originally resided in with her adult son when she returned to Mexico in 2004 with her younger daughter. The Applicant asserts that six months later she was joined by her then spouse who had remained in the United States to sell their home.

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Subsequently, the Applicant asserts that she and her then spouse bought a house in and opened a clothing store. The Applicant asse11s that the store initially did well, however after several robberies, the business was no longer viable. In August of 2006, the Applicant states that her then spouse returned to the United States. In December 2006, the Applicant states that she sent her younger daughter to the United States to reside with her father. The Applicant claims that she then moved in with her mother who resided in The Applicant asserts that she returned to

at the end of 2007 and attempted to support herself by tutoring neighborhood children and teaching yoga, however she was unable to independently cover the mortgage payments. The Applicant claims that in 2008 her relationship with her then spouse ended and she was not employed. In 2009, the Applicant states that she was staying with her mother. The Applicant details the hardship she experienced in 2010 without her daughters. The Applicant states that she went for an appointment in The Department of State records reflect that she went for an appointment in November 2011.

The Applicant claims that her younger daughter briefly relocated to Mexico in June of 2012. The Applicant asserts that she and her younger daughter resided with her mother and the younger daughter enrolled in school. The Applicant states that her younger daughter returned to the United States in December 2012 as she was unable to adjust to her new environment. The Applicant states that in 2013 she returned to she had an interview at in 2014, and she went to after this interview. The Department of State records reflect that she went for an appointment in April 2014. The record includes a statement from the Applicant's son who provides similar details of the Applicant's experience in Mexico. The record includes a statement from the Applicant's younger daughter who details her hardship without the Applicant, her stay with the Applicant in Mexico from 2004 until 2007, and her visits to the Applicant in Mexico. The record includes passport stamps as evidence of her travel to Mexico in 2012 and 2013. The record includes a statement from the Applicant ' s mother who states that the Applicant has lived in Mexico. The record includes a statement from the Applicant' s older daughter who details her hardship without the Applicant and that the Applicant has been outside of the United States for ten years. The record includes numerous statements from friends of the Applicant, both in the United States and in Mexico, who detail her departure from the United States in 2004 and that she has been living in Mexico since then.

The following documents also corroborate the Applicant's assertion that she has remained outside of the United States since her departure in 2004. The Applicant ' s residency in Mexico during 2004 is supported by copies of the Applicant's birth certificate copy receipt and a receipt for her daughter's registration in Mexico. The Applicant's residency in Mexico during 2005 is supported by copies of the Applicant's real estate purchase record and her younger daughter's school attendance record. The Applicant's residency in Mexico during 2006 is supported by copies of a bank receipt, change of fiscal situation record, medical letter for her daughter, property tax receipt, and her daughter's school attendance record. The Applicant's residency in Mexico during 2007 is supported by a copy of a property tax receipt.

The Applicant ' s residency in Mexico during 2008 is supported by copies of bank and water bill statements. The Applicant's residency in Mexico during 2009 is supported by copies of a water bill

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(b)(6)

Matter of E-F-S-

statement, and a property tax receipt. The Applicant's residency in Mexico during 2010 is supported by copies of date-stamped photographs, water bill and bank statements. The Applicant's residency in Mexico during 2011 is supported by copies of a voter registration document, a certificate of liberty obligation, and receipts for money transfers to the Applicant in Mexico. The Applicant's residency in Mexico during 2012 is supported by copies of a notary public receipt, and receipts for money transfers to the Applicant in Mexico. The Applicant's residency in Mexico during 2013 is supported by copies of receipts for money transfers to the Applicant in Mexico, and a voter registration document. The Applicant's residency in Mexico during 2014 is supported by copies of the Applicant's issuance of Mexican passport, and a receipt for a money transfer to the Applicant in Mexico.

A review of the documentation in the record, when considered in its totality, reflects that the Applicant has established by a preponderance of the evidence that she has remained outside of the United States for more than ten years.

A grant of permission to reapply for admission is a discretionary decision based on the weighing of negative and positive factors. In Matter ofTin, 14 I&N Dec. 371 (Reg. Comm. 1973), the Regional Commissioner listed the following factors to be considered in the adjudication of a Form I-212:

The basis for deportation; recency of deportation; length of residence in the United States; applicant's moral character; his respect for law and order; evidence of reformation and rehabilitation; family responsibilities; any inadmissibility under other sections of law; hardship involved to himself and others; and the need for his services in the United States.

In Tin, the Regional Commissioner noted that the applicant had gained an equity (job experience) while being unlawfully present in the United States. The Regional Commissioner then stated that the alien had obtained an advantage over aliens seeking visa issuance abroad or who abide by the terms of their admission while in this country, and he concluded that approval of an application for permission to reapply for admission would condone the alien's acts and could encourage others to enter the United States to work in the United States unlawfully. Id.

The record reflects that the Applicant's U.S. citizen children will continue to experience emotional hardship by being separated from their mother. The Applicant's younger daughter has lived without the Applicant since she was years-old. The record reflects that the Applicant attempted to reunite with her younger daughter by relocating her to Mexico when the daughter was -years-old, however the Applicant's daughter did not adjust well to her new environment. In a signed declaration, the Applicant's younger daughter asserts that being separated from the Applicant has been challenging and she has experienced feelings of loneliness and anger. She also asserts that it was her wish to reunite with the Applicant in 2012, however she was forced to return to the United States because she was unable to adjust to school in Mexico due to difficulties learning the curriculum in Spanish.

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The Applicant asserts that her older U.S. citizen daughter has also experienced emotional hardship based upon the separation from the Applicant when she was 22-years-old. In a signed declaration, the Applicant's older daughter states that in addition to adjusting to life without the emotional support of the Applicant, she became the guardian for the Applicant's younger child in 2006. The Applicant's daughter asserts that the strain of being a surrogate mother to her sister has been emotionally and financially difficult for her, particularly since the births of her two children and subsequent divorce from her husband of 11 years.

In this matter, the favorable factors are the Applicant's hardship, the hardship that the Applicant's U.S. citizen children would continue to suffer if the Applicant were to remain in Mexico, the approval of the Form I-130, Petition for Alien Relative, filed on behalf of the Applicant, the passage of more than 11 years since the Applicant's departure from the United States, and the Applicant's lack of a criminal record. The unfavorable factors in this matter are the Applicant's period of unlawful presence and unlawful employment while in the United States, and her previous entries without inspection.

After a careful review of the record, we find that the Applicant has established that the favorable factors outweigh the unfavorable factors in her case and that a favorable exercise of the Secretary's discretion is warranted.

In application proceedings it is the Applicant's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has been met.

ORDER: The appeal is sustained.

Cite as Matter ofE-F-S-, ID# 15145 (AAO Feb. 9, 2016)

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