THE WAIVER OF INADMISSIBILITY PURSUANT TO SECTION...

49

THE WAIVER OF INADMISSIBILITY PURSUANT

TO SECTION 212(a)(9)(B)(v) OF THE

IMMIGRATION AND NATIONALITY ACT:

A CASE STUDY

David N. Strange

I. INTRODUCTION .................................................................................... 49 II. THE INSTANT CASE ............................................................................. 50 III. LEGAL ARGUMENT SUPPORTING MR. SMITH‘S APPLICATION FOR

WAIVER: RELEVANT CASE LAW AND EXTREME HARDSHIP ............... 52 A. Favorable and Unfavorable Factors ......................................... 52 B. Necessary and Proper Relationship of Qualifying Relative with

the Extreme Hardship Requirement ........................................... 58 IV. CONSTITUTIONAL LAW ARGUMENT .................................................... 63

A. The Fundamental Rights to Marriage and to Live Together as

a Family ..................................................................................... 64 B. The Unconstitutionality of Arbitrarily Denying I-601 Waivers

When the Qualifying Relative Is a United States Citizen

Spouse ........................................................................................ 69 C. Safeguarding Constitutional Rights ........................................... 69

V. ECONOMIC (IN)EFFICIENCY ................................................................. 70 VI. CONCLUSION ....................................................................................... 70

I. INTRODUCTION

If an adult individual has been unlawfully present in the United States for

more than one year and voluntarily departs, that same individual is inadmissible

to the United States for ten years.1 There is, however, a waiver to this ground

of inadmissibility pursuant to § 212(a)(9)(B)(v) of the Immigration and

Nationality Act (INA) if the applicant for the waiver can demonstrate that a

qualifying relative (e.g., a spouse or a parent who is a United States citizen or

lawful permanent resident) would suffer extreme hardship.2 This waiver may

be granted to an applicant applying within the United States or to an applicant

applying from abroad.3 Unfortunately, the standard in adjudicating such

1. See Immigration and Nationality Act (INA) § 212(a)(9)(B)(i)(II), (iii)(I), 8 U.S.C.

§ 1182(a)(9)(B)(i)(II), (iii)(I) (2006). If the unlawful presence totaled more than 180 days, but less than one

year, the period of inadmissibility is three years. See INA § 212(a)(9)(B)(i)(I).

2. See INA § 212(a)(9)(B)(v).

3. See id.

50 TEXAS TECH LAW REVIEW—THE ADDENDUM [Vol. 41:49

waivers is, at best, unclear and frequently misapplied and, at worst, nonexistent.

As a result, fundamental rights of many U.S. citizens (and lawful permanent

residents) are being trampled upon and nuclear families across the United

States are made to suffer. Accordingly, it is time for the federal courts to step

in and issue clear guidance in this area of the law.

II. THE INSTANT CASE

On April 14, 2005, a consular officer at the U.S. Consulate in Ciudad

Juarez, Mexico refused to issue an immigrant visa to Mr. John Smith.4 The

consular officer found Mr. Smith inadmissible under INA § 212(a)(9)(B)(ii),

reflecting amendments through December 2, 1997.5 Consequently, pursuant to

§ 212(a)(9)(B)(v), Mr. Smith filed a Form I-601, Application for Waiver of

Grounds of Excludability, on April 14, 2005.6 Thereafter, on March 22, 2006,

the United States Citizenship and Immigration Services (USCIS or Service)

sub-office in Ciudad Juarez, Mexico, denied Mr. Smith‘s I-601 Application for

Waiver.7 This article will discuss that denial.

8

Mr. Smith entered the United States without inspection in January 2001

and unlawfully resided in the United States until April 10, 2005, when he

voluntarily departed.9 While in the United States, Mr. Smith married Mrs.

Smith on September 22, 2001, in Dallas County, Texas.10

Mrs. Smith is a

citizen of the United States by birth.11

At the time of the I-601 Waiver denial,

Mr. and Mrs. Smith had been married for nearly five years.12

Furthermore,

their marriage produced a United States citizen daughter, Janie Smith, who was

4. Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 2 (American

Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author). The names of all

individuals and locations within the United States have been changed to protect privacy.

5. See INA § 212(a)(9)(B)(ii) (explaining the construction of unlawful presence); Order of U.S.

Citizenship & Immigration Services, No. CDJ 2004 603 138, at 2. The consular officer most likely based his

decision on INA § 212(a)(9)(B)(i)(II), as will become clear once the facts of this particular case are further

explored.

6. See INA § 212(a)(9)(B)(v); Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603

138, at 3.

7. Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 1.

8. Mr. Smith filed a timely appeal with the Administrative Appeals Office, which is still pending as of

this writing.

9. Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 2. By the time of his

departure, Mr. Smith had accrued more than one year of unlawful presence in the United States as an adult.

Id.

10. This information is contained in the I-601 Waiver Application materials submitted to the Texas Tech

Law Review by the author. The author has retained copies of these files.

11. See supra note 10 (regarding Mrs. Smith‘s U.S. birth certificate in waiver application).

12. See supra note 10 (regarding marriage certificate in waiver application). At the time of this article,

Mr. and Mrs. Smith have been married for approximately eight years. See supra note 10.

2009] THE WAIVER OF INADMISSIBILITY 51

born on July 11, 2002, in Dallas, Texas.13

Other than the bar instituted by INA

§ 212(a)(9)(B)(i)(II), Mr. Smith is eligible for an immigrant visa.14

On October 15, 2003, Mr. and Mrs. Smith purchased a home located at

1010 Maple Street in Dallas, Texas.15

But as a result of Mr. Smith‘s exclusion

from the United States, the Smith family lost their home.16

Consequently, Mrs.

Smith and her daughter now depend on Mrs. Smith‘s mother for shelter.17

Both

of Mrs. Smith‘s parents reside in the United States and, aside from her

husband, Mrs. Smith has no immediate family or close friends in Mexico.18

By way of her husband‘s exclusion from the United States, Mrs. Smith has

been forced into the role of a single mother on an extremely low income.19

For

the three years prior to the I-601 Waiver denial, Mrs. Smith averaged an annual

income of only $12,527 and did not earn more than $14,637 in any single year,

with the lowest being only $9,895.20

This income fell well below the 2006

poverty guidelines issued by the Department of Homeland Security.21

Prior to

Mr. Smith‘s departure and exclusion from the United States, Mrs. Smith

depended heavily on her husband for financial and emotional support.22

Mr.

Smith‘s absence from the United States, consequently, has had devastating

effects on Mrs. Smith personally and has caused severe strains on their

marriage.23

Additionally, this forced separation has prevented Mrs. Smith from

having more children.24

Mr. and Mrs. Smith have many friends and relatives in Dallas, Texas,

where the Smiths resided prior to Mr. Smith‘s exclusion from the United

States.25

They were, and still are, a close-knit family with each playing

13. See supra note 10 (regarding Janie Smith‘s U.S. birth certificate in waiver application).

14. See Immigration and Nationality Act (INA) § 212(a)(9)(B)(i)(II), 8 U.S.C. § 1182(a)(9)(B)(i)(II)

(2006); Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 1 (American Consulate

General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author). Mr. Smith does not have a

criminal record and has no immigration violations other than the one-time entry into the United States without

inspection on January 2001 (and subsequent unauthorized employment). See supra note 10 (regarding letter

from Mrs. Smith in waiver application).

15. See supra note 10 (regarding sales contract on real estate, amortization schedule, and letter from

Seller in waiver application).

16. See supra note 10 (regarding letters in waiver application from Mrs. Smith, Mr. Smith, Seller, and

Mrs. Smith‘s mother). The I-601 Waiver Application also included a copy of an April 25, 2005 agreement to

sell the house and a subsequent lease of the house, dated April 27, 2005. See supra note 10. The I-601

Waiver Application also included a copy of an April 7, 2006 property search listing a different individual as

the owner of the property. See supra note 10.

17. See supra note 10.

18. See supra note 10.

19. See infra notes 20-21 and accompanying text.

20. See supra note 10 (regarding Mrs. Smith‘s 2003, 2004, and 2005 income tax returns in waiver

application).

21. Annual Update of the HHS Poverty Guidelines, 71 Fed. Reg. 3848, 3849 (Jan. 24, 2006). This

income falls well below the 2008 poverty guidelines as well. See 73 Fed. Reg. 3971, 3972 (Jan. 23, 2008).

22. See supra note 10 (regarding letters in waiver application).

23. See supra note 10 (regarding letters in waiver application from Mr. and Mrs. Smith).

24. See supra note 10 (regarding letter from Mrs. Smith in waiver application).

25. See supra note 10 (regarding letters from family and friends in waiver application).


important roles as father, husband, mother, and wife.26

Both Mrs. Smith and

her daughter, Janie, are U.S. citizens by birth with no legal status in Mexico.27

Accordingly, Mrs. Smith has no other option but to remain in the United States

and wait for her husband‘s return.28

Mrs. Smith is a qualifying relative under

INA § 212(a)(9)(B)(v), and her husband‘s exclusion from the United States

appears to have subjected her (and continues to subject her) to extreme

hardship.29

If true, Mr. Smith is deserving of the waiver authorized by

Congress to address this very situation.30

III. LEGAL ARGUMENT SUPPORTING MR. SMITH‘S APPLICATION FOR

WAIVER: RELEVANT CASE LAW AND EXTREME HARDSHIP

A. Favorable and Unfavorable Factors

In its decision to deny Mr. Smith‘s application for a waiver, the Service

cited Matter of Tin and Matter of Lee and discussed the Commissioner‘s

findings by detailing a list of favorable and unfavorable factors.31

At the

conclusion of its decision, the Service stated the following: ―Additionally, the

Attorney General‘s favorable discretion can only be granted after weighing the

favorable and unfavorable factors in every case. In the instant case, the

favorable factors do not outweigh the unfavorable factors.‖32

The Service‘s

(1) discussion of the favorable versus unfavorable factors in the instant case,

(2) finding that the favorable factors do not outweigh the unfavorable factors,

and (3) use of that conclusion as part of its basis for denying Mr. Smith‘s

application is difficult to understand.33

Strictly adhering to the findings of the

26. See supra note 10 (regarding letters describing family relations and family photos in waiver

application).

27. See supra note 10 (regarding U.S. birth certificates of Mrs. Smith and her daughter, Janie, in waiver

application).

28. See supra note 10 (regarding supplemental letter from Mrs. Smith dated April 10, 2006, in waiver

application).

29. See Immigration and Nationality Act (INA) § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v) (2006);

see discussion supra Part II.

30. See, e.g., Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998) (per curiam) (―The most

important single [hardship] factor may be the separation of the alien from family living in the United States.‖

(quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983)) (internal quotation marks omitted)).

31. Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 2-3 (American

Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author) (citing Matter of Tin, 14

I. & N. Dec. 371 (B.I.A. 1973); Matter of Lee, 17 I. & N. Dec. 275 (B.I.A. 1978)).

32. Id. at 4.

33. See generally id. at 2-4 (discussing the reasons for the Service‘s denial of Mr. Smith‘s waiver

application). This is an incorrect application of the standard in any event. By saying that ―the favorable

factors do not outweigh the unfavorable factors‖ and using this as a reason to deny the application, the Service

is creating its own rule and asserting that an applicant does not start off on a neutral slate in the favorable

versus unfavorable balancing act. See id. Instead, the applicant begins with the scales tipped against him or

her, and the applicant then has to bring forth favorable factors and tip the scale the other way to his or her

favor. See id. at 4. There is absolutely neither legislative nor case authority for this rule. The Service just

made it up. Instead, the rule in denying an application is that the unfavorable factors must outweigh the


Commissioner (and the Regional Commissioner) from Matter of Tin and Matter

of Lee, the only possible unfavorable (or adverse) factor that could be found

against Mr. Smith in the instant case is his one-time entry without inspection

into the United States on or about January 2001.34

The Commissioner ruled in Matter of Lee that a violation of the

immigration laws could, but does not necessarily, reflect poorly on good moral

character and may be an unfavorable factor.35

The Commissioner further stated

that ―a record of immigration violations standing alone will not conclusively

support a finding of a lack of good moral character.‖36

The Commissioner then

noted the importance of reformation of character after violating immigration

laws:

An evinced callous attitude toward violating the immigration laws without a

hint of reformation of character should be considered as a heavily weighted

adverse factor. In the instant case, I do find that hint of reformation of

character in the attitude of the applicant in surrendering himself to the Service

and departing the United States voluntarily . . . .37

Thus, in Matter of Lee, the Commissioner concluded that the favorable factors

outweighed the unfavorable factors in finding for the applicant, Mr. Lee.38

In light of the District Director‘s denial of Mr. Lee‘s application by relying

on Matter of Tin and another case, Matter of Chim,39

the Commissioner

commenced a discussion of the legislative history and intent underlying the

waiver that Mr. Lee sought.40

The Commissioner found that the intent of

Congress

[was] to give a previously deported alien a second chance and connotes a

remedial relief rather than a punitive provision of statute. In this regard, I

find the several decisions affecting permission to reapply after deportation

lacking this attitude. [The previous cases of] Matter of H_R_, 5 I&N Dec.

769 (C.O. 1954), and Matter of Chim . . . convey a punitive attitude and

attach conditions beyond anything I believe Congress intended in granting

favorable factors. See id. Under this rule, with all things being equal, the applicant remains eligible for a

waiver. See id.

34. Id. at 2; see cases cited infra notes 35, 50-79, and accompanying text. This unfavorable factor is

nevertheless negated by Mr. Smith‘s rehabilitation. See cases cited infra notes 35, 50-79, and accompanying

text.

35. Matter of Lee, 17 I. & N. Dec. at 277-78.

36. Id. at 278.

37. Id. (emphasis added).

38. Id. at 279.

39. Id. at 276 (citing Matter of Tin, 14 I. & N. Dec. 371 (B.I.A. 1973); Matter of Chim, 14 I. & N. Dec.

357 (B.I.A. 1973)).

40. Id. at 277.


the Attorney General authority to allow previously deported or excluded

aliens to reapply for entry into the United States.41

In other words, the Commissioner found that the District Director had given too

much weight to the unfavorable factors and had erroneously relied on Matter of

Tin in doing so.42

Consequently, in Matter of Lee, the Commissioner

concluded that ―Matter of Tin . . . [is] modified insofar as the weight given to

adverse factors is inconsistent with the weight accorded the adverse factors in

this decision.‖43

Thus, the Commissioner found that Matter of Tin was

overruled only to the extent that it gave too much weight to the adverse factors

found therein.44

The spirit of the law, according to the Commissioner, compels

the decision-maker to hold off on attaching too much weight to adverse factors,

thereby thwarting congressional intent.45

This is the only modification of

Matter of Tin that the Commissioner determined in Matter of Lee.46

Accordingly, we must turn to Matter of Tin for guidance.47

In Matter of

Tin, the Regional Commissioner stated the following:

In determining whether the consent required by statute should be granted,

all pertinent circumstances relating to the applicant which are set forth in the

record of proceedings are considered. These include but are not limited to

the basis for deportation, recency of deportation, length of residence in the

United States, the moral character of the applicant, his respect for law and

order, evidence of reformation and rehabilitation, his family responsibilities,

any inadmissibility to the United States under other sections of law,

hardship involved to himself and others, and the need for his services in the

United States.48

At this point, we do not yet consider the extreme hardship to the U.S. citizen

spouse as required under § 212(a)(9)(B)(v) of the INA.49

Instead, we only

focus on favorable and unfavorable factors ―relating to the applicant‖ to

determine if the applicant is eligible for a waiver.50

The applicant in this case is Mr. Smith, and the Service relied on both

Matter of Tin and Matter of Lee to deny Mr. Smith‘s application for waiver,

stating that ―the Attorney General‘s favorable discretion can only be granted

after weighing the favorable and unfavorable factors in every case. In the

41. Id.

42. See id.

43. Id. at 279 (emphasis added).

44. See id.

45. See id.

46. Id. (citing Matter of Tin, 14 I. & N. Dec. 371 (B.I.A. 1973)).

47. Matter of Tin, 14 I. & N. Dec. 371.

48. Id. at 373-74 (emphasis added).

49. Immigration and Nationality Act (INA) § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v) (2006).

50. See supra text accompanying note 48.


instant case, the favorable factors do not outweigh the unfavorable factors.‖51

But a close inspection of the circumstances laid out in Matter of Tin reveals the

following weighing of favorable versus unfavorable factors in the instant case,

which the Service wholly failed to consider:52

(1) Basis for deportation—not applicable.53

Mr. Smith voluntarily

departed the U.S.54

(2) Recency of deportation—not applicable.55

(3) Length of residence in the United States—not applicable.56

The

Commissioner in Matter of Lee stated, ―I can only relate a positive factor of

residence in the United States where that residence is pursuant to a legal

admission or adjustment of status as a permanent resident.‖57

This

circumstance is either a favorable factor in the March 2006 decision or it is

simply not applicable. The author is not aware of any precedent that would

allow this circumstance to be judged as a negative factor. Instead, any unlawful

presence in the United States is covered by moral character.58

(4) Applicant‘s moral character—favorable factor.59

Mr. Smith has no

criminal record and no immigration violations other than his entry into the

United States without inspection in January 2001.60

Furthermore, as mentioned

earlier, the Commissioner concluded in Matter of Lee that ―a record of

immigration violations standing alone will not conclusively support a finding of

a lack of good moral character.‖61

Finally, Mr. Smith supported his wife and

children while in the United States, and those who personally know Mr. Smith

speak highly of him.62

(5) Applicant‘s respect for law and order—favorable factor.63

Moreover,

Mr. Smith voluntarily departed the United States because he desires to enter the

United States lawfully with proper documentation.64

51. Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 4 (American

Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author).

52. See Matter of Tin, 14 I. & N. Dec. at 373. In the March 2006 decision, the Service simply stated

that ―[i]n the instant case, the favorable factors do not outweigh the unfavorable factors.‖ Order of U.S.

Citizenship & Immigration Services, No. CDJ 2004 603 138, at 4. The Service did not explain how it reached

this conclusion. See id.

53. Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 2 (citing Matter of

Tin, 14 I. & N. Dec. at 373).

54. Id.

55. See id. (citing Matter of Tin, 14 I. & N. Dec. at 373); see supra text accompanying notes 53-54.

56. See id. (citing Matter of Tin, 14 I. & N. Dec. at 373).

57. Matter of Lee, 17 I. & N. Dec. 275, 278 (B.I.A. 1978).

58. Id. at 277-78.

59. See Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 2-3 (citing Matter

of Tin, 14 I. & N. Dec. at 373).

60. See supra note 10 and accompanying text. Mr. Smith, however, worked in the U.S. without

authorization following his unlawful entry. See supra note 10 and accompanying text.

61. Matter of Lee, 17 I. & N. Dec. at 278; see supra note 36 and accompanying text.

62. See supra note 10 (regarding copies of letters in waiver application describing Mr. Smith‘s support

of his family and his reputation, along with family photos).

63. See Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 2 (citing Matter

of Tin, 14 I. & N. Dec. at 373); see supra notes 59-62 and accompanying text.


(6) Evidence of reformation and rehabilitation—favorable factor.65

The

Commissioner found in Matter of Lee that Mr. Lee had reformed his character

when he voluntarily departed the United States.66

Mr. Smith, likewise,

voluntarily departed the United States; thus, there is clear evidence of

reformation and rehabilitation in the instant case.67

(7) Applicant‘s family responsibilities—favorable factor.68

The Regional

Commissioner does not expound on this at any length in his decision, but he

does point out that Mr. Tin had no family ties in the United States and that Mr.

Tin‘s wife and children were in mainland China.69

Accordingly, this

circumstance could only possibly refer to family responsibilities in the United

States.70

Mr. Smith‘s family responsibilities in the United States are enormous

and certainly favorable in the instant case considering Mr. Smith‘s

responsibilities to his wife and their United States citizen daughter.71

(8) Any inadmissibility to the United States under other sections of the

law—favorable factor.72

In Mr. Smith‘s case, there is no such inadmissibility

under other sections of the law.73

(9) Hardship involved to the applicant and others—favorable factor.74

The Service‘s denial of Mr. Smith‘s application resulted in the forced

separation of a husband and wife in a viable, mutually dependent marriage,

with a United States citizen child involved.75

This, in turn, results in a hardship

on Mr. Smith, Mrs. Smith, their United States citizen daughter, and their family

and friends in the United States.76

This also results in a hardship on the United

States taxpayer if Mrs. Smith is forced to rely on welfare or other governmental

assistance because she has lost the support of her husband and is forced into the

role of a single mother.77

(10) The need for the applicant‘s services in the United States—probably

unfavorable, if consideration is restricted to a need falling outside of Mr.

64. See Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 2. This is

evidenced by the application for a waiver and the fact that Mr. Smith filed an appeal.

65. See id. (citing Matter of Tin, 14 I. & N. Dec. at 373).

66. Matter of Lee, 17 I. & N. Dec. at 278.

67. See Order of U.S. Citizenship & Immigration Services, No. CRJ 2004 603 138, at 2; see supra note

66 and accompanying text.

68. See Order of U.S. Citizenship & Immigration Services, No. CRJ 2004 603 138, at 2 (citing Matter

of Tin, 14 I. & N. Dec. at 373).

69. Matter of Tin, 14 I. & N. Dec. at 374.

70. See id.

71. See Order of U.S. Citizenship & Immigration Services, No. CRJ 204 603 138, at 3; see discussion

supra Part II.

72. See Order of U.S. Citizenship & Immigration Services, No. CRJ 204 603 138, at 2 (citing Matter of

Tin, 14 I. & N. Dec. at 373).

73. See id. at 3-4.

74. See id. at 2 (citing Matter of Tin, 14 I. & N. Dec. at 373).

75. See discussion supra Part II.

76. See supra note 10 (regarding letters in waiver application describing hardship).

77. See supra note 10 (regarding letters in waiver application demonstrating Mrs. Smith‘s reliance on

her husband for economic and emotional support).


Smith‘s family.78

On the other hand, this circumstance would certainly be a

favorable factor if consideration is given to any need for services in the United

States because there is clearly a need for Mr. Smith, as far as Mrs. Smith and

their daughter are concerned, in Mr. Smith‘s role as a husband and a father.79

A simple cursory look at the relevant factors in the present case clearly

shows that the favorable factors far outweigh the unfavorable factors

(assuming, but in no way agreeing, that there is even one unfavorable factor at

all). The Service, however, in its decision, failed to properly weigh the

favorable factors against the unfavorable factors.80

Despite its utter failure in

this regard, the Service thereupon announced that it was denying, at least in

part, Mr. Smith‘s application because ―[i]n the instant case, the favorable

factors do not outweigh the unfavorable factors.‖81

The Service‘s actions,

therefore, amount to abuse of discretion.

Although a waiver granted pursuant to § 212(a)(9)(B)(v) of the INA is

subject to the Attorney General‘s discretion, discretionary actions are

reviewable for abuse of the discretion imparted.82

The Administrative

Procedure Act states that

[a] reviewing court shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine the meaning or

applicability of the terms of an agency action. The reviewing court shall—

. . . .

. . . (2) hold unlawful and set aside agency action, findings, and conclusions

found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law.83

Accordingly, even though the Attorney General has sole discretion to

grant a waiver pursuant to § 212(a)(9)(B)(v) of the INA, Congress did not

intend the Attorney General or his subordinates to have absolute discretion to

be exercised at the whim of the decision-maker.84

In any event, weighing favorable and unfavorable factors is not part of the

Attorney General‘s sole discretion under § 212(a)(9)(B)(v).85

These factors

should have been considered and weighed prior to that exercise of discretion

78. See Order of U.S. Citizenship & Immigration Services, No. CRJ 204 603 138, at 2 (citing Matter of

Tin, 14 I. & N. Dec. at 373).

79. See id.

80. Id. at 4.

81. Id.

82. See, e.g., Foti v. INS, 375 U.S. 217 (1963); United States ex rel. Hintopoulos v. Shaughnessy, 353

U.S. 72, 77 (1957); Wong Wing Hang v. INS, 360 F.2d 715, 718 (2d Cir. 1966). But see Jay v. Boyd, 351

U.S. 345, 354-55 (1956).

83. 5 U.S.C. § 706 (2006).

84. Immigration and Nationality Act (INA) § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v) (2006); see

also INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996).

85. See INA § 212(a)(9)(B)(v).


authorized by INA § 212(a)(9)(B)(v).86

This, however, never occurred and is a

grave error on the part of the Service because the non-discretionary aspects of

the discretionary decision always remain subject to judicial review.87

B. Necessary and Proper Relationship of Qualifying Relative with the

Extreme Hardship Requirement

In its decision denying Mr. Smith‘s application for waiver, the Service

explained that Mr. Smith is subject to a ten-year bar from entering the United

States and further discussed the need for a waiver of that bar pursuant to INA

§ 212(a)(9)(B)(v). 88

The Service stated that

Congress provided for such a waiver but limited its application to requiring,

in each case, a showing that the ban imposes an extreme hardship upon a

qualifying family member. It is evident that Congress did not intend that a

waiver be granted merely due to the existence of a qualifying

relationship . . . . Common results of the bar such as separation, financial

difficulties, etc., in themselves are insufficient to warrant approval of an

application unless combined with much more extreme impacts.

. . . .

With regard to the applicant‘s extreme hardship claim, the applicant

submits a letter from his wife. The letter speaks of the normal problems

associated with separation . . . . The applicant‘s wife recounts problems that

she and their daughter are experiencing as a result of the applicant‘s

inadmissibility. As children are not qualifying family members, possible

hardships to the children are off point . . . . While separation and financial

concerns can cause hardship, the evidence in the record has not established

that the hardships his wife must endure could be defined as extreme. This is

not to say that such a separation is easy to bear or that it is taken lightly; the

statements presented simply do not establish that the applicant’s wife’s

situation is more severe than that of other individuals in similar

circumstances . . . . Congress purposely limited the conditions under which

this extraordinary relief would be granted and did not intend for it to be

granted based solely on a qualifying relationship or economic hardship.89

The Service made a giant leap connecting INA § 212(a)(9)(B)(v) to its

ultimate conclusion in the instant case; furthermore, the Service inappropriately

86. See id.

87. See, e.g., Hernandez v. Ashcroft, 345 F.3d 824, 846-47 (9th Cir. 2003); Medina-Morales v.

Ashcroft, 362 F.3d 1263, 1267-70 (9th Cir. 2004).

88. See INA § 212(a)(9)(B)(i)(II); Order of the U.S. Citizenship & Immigration Services, No. CDJ 2004

603 138, at 2 (American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author).

In other words, Mr. Smith is inadmissible for ten years. See INA § 212(a)(9)(B)(i)(II).

89. Order of U.S. Citizenship & Immigration Services, No. CRJ 204 603 138, at 3-4 (emphasis added).


relied on past case law that is off point to justify its rationale.90

It is worth

while to take a closer look at this point.

The Service, in its decision to deny Mr. Smith‘s application, made

reference to financial difficulties, ―the mere loss of employment, the inability to

maintain one‘s present standard of living or to pursue a chosen profession, . . .

[and] cultural readjustment.‖91

The Service stated that according to case law, it

has been found that these factors do not constitute extreme hardship.92

But in

all of the cases that the Service cited which stated that economic hardship or

cultural readjustment by itself is not enough to support a finding of extreme

hardship, the issue actually involved the suspension of deportation of aliens

who would suffer economic hardship or cultural readjustment outside the

United States in their own country.93

In the present matter, the economic hardship falls on a United States

citizen within the United States.94

There is no case law stating that economic

hardship to a United States citizen by itself is not sufficient to show extreme

hardship. Instead, case law has reasoned that

conditions in an alien’s homeland is not a dispositive factor in a suspension

hearing. We do not believe that Congress intended the immigration courts to

suspend the deportation of all those who will be unable to maintain the

standard of living at home which they have managed to achieve in this

country. If the critical emphasis were on the economic situation in the alien‘s

homeland, a grant of relief would obviously be mandated in the case of

aliens from many developing countries.95

Thus, the economic hardship, or cultural readjustment, on aliens being

deported to their own country is what courts have deemed insufficient by itself

because that approach would undermine congressional intent.96

In the case of

economic hardship to a United States citizen, however, there is no such

rationale involved and the dynamics are completely different. 97

The Service‘s

90. See id.

91. Id.

92. See id.

93. See id. at 3 (citing Matter of Pilch, 21 I. & N. Dec. 627 (B.I.A. 1996); Marquez-Medina v. INS, 765

F.2d 673 (7th Cir. 1985); Bueno-Carillo v. Landon, 682 F.2d 143 (7th Cir. 1982); Chokloikaew v. INS, 601

F.2d 216 (5th Cir. 1979); Banks v. INS, 594 F.2d 760 (9th Cir. 1979); Matter of Kojoory, 12 I. & N. Dec. 215

(B.I.A. 1967)). Suspension of Deportation is the predecessor to Cancellation of Removal. Matter of

Romalez-Alcaide, 23 I. & N. Dec. 423, 436 (B.I.A. 2002). Suspension relief was replaced by the Illegal

Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996. Matter of Nolasco-Tofino, 22 I.

& N. Dec. 632, 634 (B.I.A. 1999). Previously, an immigrant was eligible for relief by a showing of seven

years physical presence, good moral character, and extreme hardship to the immigrant or to a qualifying

relative. Matter of Dilla, 19 I. & N. Dec. 54, 55 (B.I.A. 1984).

94. See supra Part II.

95. Bueno-Carillo, 682 F.2d at 146 (citation omitted) (emphasis added); see also Marquez-Medina, 765

F.2d at 677.

96. See sources cited supra note 95.

97. See Order of U.S. Citizenship & Immigration Services, No. CRJ 204 603 138, at 3. Also, hardship

to a United States citizen could have a ripple effect within the United States in terms of the citizen possibly


blanket contention asserting ―it has been found that [economic hardship or

cultural readjustment] do not constitute extreme hardship‖ is simply wrong.98

Instead, case law holds that economic hardship or cultural readjustment on an

alien applying for suspension of deportation do not constitute extreme

hardship.99

The Service‘s jump making the two one and the same is without

precedent and arbitrary in its application. This is nothing more than a Service

officer legislating from behind a desk.

Next, the Service does a bit of legislating again when it states that

―separation . . . [by itself is] insufficient to warrant approval of an application

unless combined with much more extreme impacts.‖100

The Service then relied

on case law to support this contention.101

The Service also stated that

―Congress provided for [an INA § 212(a)(9)(B)(v)] waiver but limited its

application to requiring, in each case, a showing that the ban imposes an

extreme hardship upon a qualifying family member.‖102

From this, the Service

concluded that separation by itself does not constitute extreme hardship and

then just invented a ―normal problems associated with separation‖ standard that

is pulled right out of the air.103

This is a terrible jump in reasoning and is

without legislative or case law precedent. Instead, Congress mandated a waiver

where ―the refusal of admission to [an] immigrant alien would result in extreme

hardship to the [qualifying relative] of such alien.‖104

In other words, a

qualifying relationship by itself is not enough, even when combined with a

separation of the alien from the qualifying relative.105

There must be an

extreme hardship element involved as well.106

The Service‘s reliance on case law to reach its unfounded conclusion and

contrive its new ―normal problems associated with separation‖ standard is

faulty and erroneous. In Banks, the court explained that ―[Mrs.] Banks‘

marriage had previously . . . been found insufficient to support her application

for adjustment of status‖ and that ―[Mrs.] Banks had been separated from her

husband for at least the last four or five years, and his whereabouts were

unknown to her.‖107

The court then concluded that ―[t]he separation of . . . a

having to rely on welfare because of the economic hardship and in terms of higher divorce rates caused by

forced separation, the attack on the family, a possible rise in criminal activity, or dropping out of school

because children are forced into single parent homes and lose the support of one of their parents. See supra

Part III.B.

98. See Order of U.S. Citizenship & Immigration Services, No. CRJ 204 603 138, at 3.

99. See Guadarrama-Rogel v. INS, 638 F.2d 1228, 1230 (9th Cir. 1981).

100. Order of U.S. Citizenship & Immigration Services, No. CRJ 204 603 138, at 3.

101. See id. (citing Banks v. INS, 594 F.2d 760, 762-63 (9th Cir. 1979); Matter of Ngai, 19 I. & N. Dec.

245, 247 (B.I.A. 1984); Matter of Shaughnessy, 12 I. & N. Dec. 810, 813-14 (B.I.A. 1968); Matter of W–, 9

I. & N. Dec. 1, 4 (B.I.A. 1960)).

102. Id.

103. Id.

104. Immigration and Nationality Act (INA) § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v) (2006).

105. See id.

106. Id.

107. Banks v. INS, 594 F.2d 760, 763 (9th Cir. 1979).


wife from a husband who has not been seen in several years, is not the type of

extreme hardship contemplated by the statute.‖108

In Matter of Ngai, the Commissioner explained that the applicant was in

Hong Kong and was self-supporting, she and her husband had not seen each

other in over twenty-eight years (pursuant to their own free choice), the

husband had no plans to reunite with his wife if she were not allowed entrance

to the United States, and the District Director concluded that a marriage on

paper by itself was insufficient to establish a basis for a waiver.109

The

Commissioner then stated the following:

A waiver of bar to admission . . . is dependent first upon a showing that the

fact of the bar imposes an extreme hardship on a qualifying family member.

Congress provided this waiver but limited its application. By such limitation

it is evident that it did not intend that a waiver be granted merely due to the

fact that a qualifying relationship existed. The key term in the provision is

“extreme” and thus only in cases of great actual or prospective injury to the

United States [citizen or lawful permanent resident alien] will the bar be

removed.110

Thus, separation by itself is insufficient.111

There is no ―normal problems

associated with separation‖ standard.112

Such a standard is contrary to

congressional intent because it excludes considering the extreme hardship

caused by the separation itself.113

That is absurd. What are the ―normal

problems associated with separation‖ when the separation is between a husband

and wife in a viable, mutually dependent marriage, with a United States citizen

child involved? Whatever those ―normal problems‖ are, they are extreme.

Instead, case law has held that separation by itself where there is no attached

extreme hardship involved is insufficient.114

Congress agrees; that is why it

added the provision that extreme hardship to the qualifying relative must be

demonstrated.115

Thus, the separation of a husband and wife who are already

separated is not extreme.116

The Service should not be allowed to legislate

beyond this standard.

The Service also relied on Matter of W-.117

Again, this reliance is

misplaced and off point. In Matter of W-, the BIA found

108. Id.

109. Matter of Ngai, 19 I. & N. Dec. 245, 246 (B.I.A. 1984).

110. Id. at 246 (emphasis added).

111. See id. at 246-47.

112. See id.; Order of the U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 3

(American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author).

113. See supra notes 103-06 and accompanying text.

114. See Matter of Ngai, 19 I. & N. Dec. at 246-47; Matter of W-, 9 I. & N. Dec. 1, 4-5 (B.I.A. 1960);

Matter of Shaughnessy, 12 I. & N. Dec. 810, 813 (B.I.A. 1968).



117. Order of the U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 3 (citing Matter of

W-, 9 I. & N. Dec. 1 (B.I.A. 1960)).


[the] record does not establish that appellant‘s exclusion will result in

extreme hardship to his United States citizen wife. There are no children to

be considered, and she is not dependent upon appellant for support.

However, it is our present opinion that the refusal to grant the waiver

primarily on the ground that the appellant has not shown that his wife would

suffer ―extreme hardship‖ by being deprived of his company was limiting the

denial of the waiver to too narrow a ground.

In addition to showing that his exclusion would result in extreme

hardship to his United States citizen wife, [the law] requires a positive

finding that the admission to the United States of this alien ―would not be

contrary to the national welfare, safety, or security of the United States . . . .

The grant or denial of the waiver does not turn only on the issue of the

meaning of ―extreme hardship.‖ We have considered and reviewed the

entire record, and it is our decision that appellant does not merit the exercise

of the discretion contained in [the law]. The unfavorable aspects of the

investigative report, the fact that appellant has an illegitimate child, the fact of

his conviction for crimes involving moral turpitude, the fact that five former

employers had serious complaints against him, and the fact that he procured

his visa without disclosing a criminal conviction which had taken place

within the same month, must all enter into our decision. In assessing the

degree of hardship, it is also proper to note that appellant and his wife

married on comparatively brief acquaintance, and that he has no other ties,

family, business, social or sentimental, in the United States.118

Accordingly, the BIA found against the applicant in Matter of W-.119

This

decision, however, as evidenced by the record, was not based on a finding that

separation by itself cannot constitute extreme hardship.120

The decision in Matter of Shaughnessy, likewise, does not hold that

separation alone cannot constitute extreme hardship.121

Instead, the BIA held

that ―the facts and circumstances peculiar to each case should control when

interpreting what amounts to ‗extreme hardship . . . . ‘‖122

The BIA then found

that the exclusion of the adult child would not result in hardship on his citizen

parents because they did not presently rely on their son for financial support,

nor was it foreseeable that they would in the future.123

Finally, the BIA noted

that the applicant had been convicted of several serious crimes and that the

―applicant for a waiver must establish that his admission ‗would not be contrary

to the national welfare, safety or security of the United States.‘‖124

With respect to the denial of Mr. Smith‘s application for waiver, the

Service‘s blanket approach holding that separation does not constitute extreme

118. Matter of W-, 9 I. & N. Dec. at 4-5 (emphasis added).

119. Id. at 5.

120. See id. at 4-5.

121. See Matter of Shaughnessy, 12 I. & N. Dec. 810, 812-13 (B.I.A. 1968).

122. Id. at 813.

123. See id.

124. Id. at 813-14.


hardship is absolutely void of precedent. Furthermore, its ―normal problems

associated with separation‖ standard is meaningless and unsupported by

precedent. What are the normal problems of separation? Which of these

amount to extreme hardship, which do not, and in what instances? Case law

requires inquiry into the facts and circumstances peculiar to each case to

determine whether there is an extreme hardship.125

No case law or legislative

rule supports the Service‘s rationale in its decision to deny Mr. Smith‘s

application. The Service just made it up. Case law, instead, has held that

separation by itself is insufficient—one could meet the statutory definition of a

qualifying relative without the existence of extreme hardship because of

separation.126

Although the instant matter does not raise that scenario (and the

author would venture to guess that such a scenario is the exception rather than

the norm), service officers should not be allowed to legislate from their desks.

Instead, the separation of family should be properly weighed in every case.127

Finally, the Service‘s position that ―possible hardships to the children are

off point‖ and therefore should not be considered because they are moot is

preposterous.128

More precisely, the law states that hardship must be shown to

a qualifying relative.129

This section does not automatically preclude

consideration of possible hardships to children of qualifying relatives,

especially when those hardships directly affect the qualifying relative.130

Ignoring possible hardships to the children of qualifying relatives also ignores

the effects of those hardships on the qualifying relative.131

By refusing to

consider the possible hardships to the children of qualifying relatives, the

Service failed to follow the requirement mandated by Congress, thereby

undermining congressional intent and further circumventing the law.132

IV. CONSTITUTIONAL LAW ARGUMENT

The Service‘s decision to deny Mr. Smith‘s application for a waiver and to

exclude Mr. Smith from the United States has enormous constitutional

implications. This point, however, should not be construed as an attempt to

125. Shaughnessy, 12 I. & N. Dec. at 813.

126. See Salcido-Salcido v. INS, 138 F.3d 1292, 1293 (9th Cir. 1998).

127. See id. (noting that separation from family may be ―[t]he most important single [hardship] factor‖).

128. See Order of the U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 3 (American


129. See Immigration and Nationality Act (INA) § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v) (2006). 130. See id.; see also Salcido-Salcido, 138 F.3d at 1293 (requiring the B.I.A. to consider the impact that

deportation would likely have on children and families).

131. See Salcido-Salcido, 138 F.3d at 1293 (finding abuse of discretion where all relevant factors are

considered).

132. See INA § 212(a)(9)(B)(v); see, e.g., In re Monreal, 23 I. & N. Dec. 56, 63 (B.I.A. 2001) (holding

that factors relating to the applicant him or herself can be considered insofar as they may affect the hardship to

a qualifying relative); In re Recinas, 23 I. & N. Dec. 467, 471 (B.I.A. 2002) (holding that, in addition to the

hardship of the U.S. citizen children, factors that relate only to the respondent may also be considered to the

extent that they affect the potential level of hardship to qualifying relatives).


ignore a sovereign nation‘s right to regulate immigration.133

Rather, it is an

attempt to demonstrate how decisions from a Service officer, without any

support in the law, to deny an I-601 Waiver can severely curtail long-

recognized constitutional rights, especially when considering that such waivers

are specifically authorized by Congress to preserve nuclear family unity.

The fundamental right to marriage has been well documented and highly

litigated in U.S. legal history.134

Starting with Loving v. Virginia, the U.S.

Supreme Court has upheld the right to marriage.135

Subsequent cases before

the Court have defined what the right to marriage incorporates. Not only does

the right to marriage include the individual choice to marry or not to marry, but

also whom to marry and the all-important right to live together as a family.136

If

a U.S. citizen is denied the fundamental right to live with a spouse as a family,

that same U.S. citizen is likewise denied the fundamental right to marriage.137

A marriage certificate alone does not make a marriage; rather, the shared lives

of the two individuals make the marriage.138

The U.S. Supreme Court has

repeatedly held in favor of the individual citizen in cases involving the

fundamental right to marriage and to live as a family.139

This section of the article is offered because the USCIS sub-office in

Ciudad Juarez relied on faulty legal reasoning to deny Mr. Smith‘s I-601

Application for Waiver.140

Such denial subjects Mr. Smith to exclusion from

the United States, thereby calling into question the constitutionality of the

arbitrary refusal to grant the I-601 Waiver as it relates to Mrs. Smith‘s

fundamental rights to marriage and to live together with her family.141

Mr.

Smith‘s exclusion from the United States, in this instance, is an immediate

impingement upon Mrs. Smith‘s fundamental rights because that exclusion is

based on faulty legal reasoning, ignores constitutional law, and undermines

congressional intent to preserve nuclear family unity.142

A. The Fundamental Rights to Marriage and to Live Together as a Family

In Loving v. Virginia, the U.S. Supreme Court confirmed marriage as a

fundamental right.143

Loving presented a case in which a white man and a

133. See, e.g., Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889).

134. E.g., Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1977); Boddie v.

Connecticut, 401 U.S. 371 (1971); Loving v. Virginia, 388 U.S. 1 (1967). (This article only deals with

marriage between a man and a woman as Mr. and Mrs. Smith in this case are a man and a woman.)

135. Loving, 388 U.S. at 2.

136. See, e.g., Moore v. City of E. Cleveland, 431 U.S. 494 (1977).

137. Loving, 388 U.S. at 12.

138. Id.


140. Order of U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138 (American Consulate

General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author).

141. Id.


143. Loving, 388 U.S. at 2.


black woman were married in Washington, D.C., and then returned to their

home state of Virginia.144

Upon the couple‘s return, both were indicted and

convicted for violating Virginia‘s ban on interracial marriages.145

In reversing

the decision of the Virginia Supreme Court, Chief Justice Warren wrote, ―The

freedom to marry has long been recognized as one of the vital personal rights

essential to the orderly pursuit of happiness by free men.‖146

Holding the

Virginia statute banning interracial marriages as unconstitutional, the Court

reasoned that the statute in question violated the Equal Protection and Due

Process Clauses of the Fourteenth Amendment.147

The Court‘s analysis of

Virginia‘s miscegenation law as depriving citizens of their liberty to marry

without due process of law was the driving force in declaring the statute

unconstitutional.148

In describing the fundamental right to marriage, Chief

Justice Warren wrote, ―Marriage is one of the ‗basic civil rights of man,‘

fundamental to our very existence and survival . . . . Under our Constitution,

the freedom to marry, or not marry, a person of another race resides with the

individual and cannot be infringed.‖149

Implicit in the decision of Loving was not only the right to marriage but

also the right to choose whom to marry.150

The Virginia statute did not outlaw

all marriages.151

The only marriages in violation of the statute were marriages

between white individuals and anyone not of white descent.152

Mr. Loving

could have circumvented the law by simply marrying a white woman, but this

would have deprived him of the right to freely marry one of his choosing.153

By

marrying outside his race, Mr. Loving and his wife were both sentenced to one-

year prison terms under the Virginia law.154

The Court, however, ruled that the

Constitution does not allow such hindrance on the right to marriage.155

In the present case, the Service‘s legally insufficient decision to deny Mr.

Smith‘s I-601 Waiver subjects him to exclusion from the U.S. and because of

that legal insufficiency, impinges upon Mrs. Smith‘s fundamental right to

marriage.156

Under Loving, this cannot be tolerated.157

Although the

144. Id.

145. Id. at 3.

146. Id. at 12.

147. Id. at 2.

148. Id. at 12.

149. Id.

150. See id. (stating that miscegenation law infringed on the right to marry).

151. Id. at 4.

152. Id.

153. See id. at 2, 12.

154. Id. at 3.

155. Id. at 2.

156. See Order of the U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 2, 3

(American Consulate General, Ciudad Juarez, Chih., Mex., Mar. 22, 2006) (on file with author).

157. See Loving, 388 U.S. at 12.


application in question was filed by an alien outside the U.S., the refusal to

grant the Waiver has affect on a United States citizen.158

In Zablocki v. Redhail, the U.S. Supreme Court struck down a Wisconsin

statute prohibiting an individual from marrying if the individual could not meet

outstanding support obligations to any child.159

The Wisconsin statute under

review provided that certain residents may not marry without first obtaining a

court order.160

The focus in the case was on Roger Redhail, who was denied a

marriage license because he was not meeting the support obligations for his

illegitimate child.161

The Court ruled that Mr. Redhail‘s constitutionally

protected right to marriage was violated by the Wisconsin statute.162

Pointing

to Loving as the leading decision on the right to marriage, the Court noted that

―[m]arriage is one of the ‗basic civil rights of man,‘ fundamental to our very

existence and survival.‖163

Furthermore, the Court recognized other aspects of

marriage that are frequently taken for granted as part of the right to marriage.164

In addition to the fundamental right to marriage, the right to ―‗establish a home

and bring up children‘ is a central part of the liberty protected by the Due

Process Clause.‖165

Finally, the Court confirmed recent decisions that

established ―that the right to marry is part of the fundamental ‗right of privacy‘

implicit in the Fourteenth Amendment‘s Due Process Clause.‖166

In striking down the Wisconsin statute, the Court used strict scrutiny.167

The Court accepted the State‘s argument that the statute‘s purposes were

legitimate and that the State had substantial interests, ―but, since the means

selected by the State for achieving these interests unnecessarily impinge on the

right to marry,‖ the statute could not stand under strict scrutiny.168

The Court

reasoned that the State had ―numerous other means for exacting compliance

with support obligations.‖169

Ultimately, the Court concluded that such

impingement on the fundamental right to marriage simply went too far.170

In the present case, it should be well noted that Congress has, in fact,

already passed legislation allowing for persons situated in Mr. and Mrs. Smith‘s

158. See Order of the U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 3. Although

Loving involved two U.S. citizens who entered into a marriage, surely the rights of one U.S. citizen alone are

just as sacred as the rights of two U.S. citizens combined. Loving, 388 U.S. at 2. To assert otherwise would

be illogical and unfounded.

159. Zablocki v. Redhail, 434 U.S. 374, 375-78 (1977).

160. Id. at 375.

161. Id. at 377-78.

162. Id. at 376-77.

163. Id. at 383 (quoting Loving, 388 U.S. at 1, 12).

164. Id. at 384.

165. Id. (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

166. Id.

167. Id. at 388.

168. Id.

169. Id. at 389.

170. Id. at 390-91.


situation to continue to live together as a family in the U.S.171

The purpose

behind such legislation is to allow, in most instances, a U.S. citizen to continue

to have a viable marriage and to live together with his or her family.172

In

effect, Congress has recognized the fundamental rights of the U.S. citizen to

marry and to live together as a family, as promulgated by the U.S. Supreme

Court.173

In Zablocki, the Court stressed that the right to ―‗establish a home

and bring up children‘ is a central part of the liberty protected by the Due

Process Clause.‖174

In the instant matter, however, due process has been

categorically trounced upon as a victim to the ―normal problems associated with

separation.‖175

Mrs. Smith has been arbitrarily forced to endure a separation

from her husband, prevented from having any more children as a result of that

separation, and prevented from rearing those children—all the while deprived

of the fundamental rights to marriage and to live together as a family.176

This

does not pass constitutional muster.

In Turner v. Safley, the U.S. Supreme Court faced the issue of marriage in

the context of prisons and their occupants.177

The Renz prison in Missouri

implemented a policy whereby it proscribed correspondence between inmates

and restricted inmate marriages with leave to do so only with the approval of

the prison superintendent and provided that such approval would not be given

unless ―there are compelling reasons to do so.‖178

The Court gave a great deal

of deference to the other branches of government in analyzing the fundamental

issues in the context of the prison system and stated that ―[p]rison

administration is, moreover, a task that has been committed to the responsibility

of those branches, and separation of powers concerns counsel a policy of

judicial restraint.‖179

In upholding the prison regulation proscribing correspondence between

inmates, the Court reasoned that the prison‘s legitimate security concerns were

logically connected to its actions.180

The Court, however, was compelled to

hold the restriction on inmate marriages to be arbitrary and not rationally

related to the reasons behind the policy.181

The constitutionally protected right

to marriage prevails even in a prison context where the rights of the individual

are heavily restricted.182

The Court held that the right to marriage is a private

171. See, e.g., Immigration and Nationality Act (INA) § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v)

(2006).

172. See id.

173. See id.

174. Zablocki, 434 U.S. at 384 (quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

175. Order of the U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 3 (American


176. See supra Part II.

177. Turner v. Safley, 482 U.S. 78, 81 (1987).

178. Id. at 81-82.

179. Id. at 85.

180. Id. at 91-92.

181. Id. at 96-99.

182. Id. at 96.


right of the individual and should not be hindered by arbitrary regulations.183

Furthermore, and more importantly, alternatives available to inmates were non-

existent.184

The Court entertained the notion of applying strict scrutiny to the

marriage issue due to the proscription on marriages between inmates and

civilians infringing on the rights of the individual outside of the prison

context.185

The Court, however, concluded that there was no need to apply

such a high standard because the regulation in question failed even under a

reasonableness standard.186

Similarly, immigration is an area in which the courts have deferred to

other branches of government, i.e., plenary power.187

As shown in Turner,

deference does not mean that the government (or any of its agencies) can

impose any restriction it chooses or finds suitable.188

Furthermore, the

reasonableness standard is not without review.189

When a regulation is

arbitrary and seeks to hinder fundamental rights of an individual, even in an

area that is strictly controlled by the government, it will fail under a

reasonableness standard.190

It is also important to note that the right to cohabit with a spouse is

incorporated into the right to marriage.191

The issue of family living

arrangements came before the U.S. Supreme Court in Moore v. City of East

Cleveland.192

In striking down a city ordinance that prevented a grandmother

from living with her grandson, the Court reasoned that the right to live as a

family is a fundamental right.193

Justice Powell stated, ―This Court has long

recognized that freedom of personal choice in matters of marriage and family

life is one of the liberties protected by the Due Process Clause of the Fourteenth

Amendment.‖194

In so ruling, the Court reaffirmed that the rights to marriage

and family life are synonymous and fundamental to U.S. citizens.195

The USCIS‘s refusal to grant Mr. Smith‘s application in the instant matter

is arbitrary in that this agency, on its own and without any precedence from

Congress or the courts, simply elected to ignore what extreme hardship means

and incredibly invented new standards of extreme hardship or lack thereof such

183. Id. at 98.

184. Id.

185. Id. at 97-98.

186. Id. at 97.

187. See, e.g., Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 628

(1889).

188. See Turner, 482 U.S. at 87.

189. See id. at 89-90.

190. Id. at 91.

191. See Moore v. City of E. Cleveland, 431 U.S. 494, 499 (1977).

192. Id. at 494-95.

193. Id. at 500.

194. Id. at 499 (quoting Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40 (1974)).

195. See id.


as ―the normal problems associated with separation‖ standard.196

This agency

has arbitrarily elected to grant some applications and deny others based on a

standard that it has promulgated and legislated on its own.197

In the instant

case, the USCIS‘s arbitrary refusal to grant Mr. Smith‘s application impinges

upon Mrs. Smith‘s fundamental rights to marriage and to live together as a

family and, therefore, such refusal must be reviewed.198

B. The Unconstitutionality of Arbitrarily Denying I-601 Waivers When the

Qualifying Relative Is a United States Citizen Spouse

Considering the enormous implications that are attached to depriving a

U.S. citizen of the fundamental rights to marriage and to live together as a

family, the author questions the constitutionality of the USCIS‘s whimsical

granting or denying of I-601 Applications for Waiver based solely on an

arbitrary and vague meaning of the term extreme hardship and on an

unprecedented ―normal problems associated with separation‖ standard when the

qualifying relative is a United States citizen spouse.199

Furthermore, even using

a vague definition of the term extreme hardship, when is the forced separation

of a husband and wife in a viable, mutually dependent marriage, with a United

States citizen child involved, not an instance of extreme hardship? Imagine

administrative officers going across the country forcing married couples to

separate and then seeing how extreme that gets. Adding the extra constitutional

considerations of the rights to marriage and to live together as a family means

that every I-601 Waiver decision, certainly where the qualifying relative is a

U.S. citizen‘s spouse, is a decision that demands a clear recognition of

constitutional principles.200

The Service, nevertheless, continues to ignore the

greater constitutional implications attached to an I-601 Application for Waiver

where the underlying qualifying relative is a United States citizen‘s spouse.201

This can no longer be tolerated.

C. Safeguarding Constitutional Rights

In Knauff v. Shaughnessy, Justice Jackson stated in his dissent, ―Congress

will have to use more explicit language than any yet cited before I will agree

that it has authorized an administrative officer to break up the family of an

American citizen or force him to keep his wife by becoming an exile.‖202

In

this light, it must be stressed that Congress has, in fact, already passed

196. Order of the U.S. Citizenship & Immigration Services, No. CDJ 2004 603 138, at 4 (American


197. Id.

198. See id.

199. See supra Part IV.A.



202. Knauff v. Shaughnessy, 338 U.S. 537, 551-52 (1950) (Jackson, J., dissenting).


legislation allowing for persons situated in Mr. and Mrs. Smith‘s situation to

continue to live together as a family in the U.S.203

The stated purpose behind

such legislation is to allow, in most cases, U.S. citizens to continue to have a

viable marriage and to live together with their family.204

The USCIS, on the

other hand, asserts that ―the normal problems associated with separation‖ are

not enough in the present case to overcome the constitutional deprivations that

it is imposing upon Mrs. Smith.205

The Service‘s position in cases involving I-601 Waivers must be reviewed,

and the Courts should establish standards that comport with U.S. law.206

The

Service simply cannot continue to ignore the greater constitutional implications

attached to an I-601 Application for Waiver where the underlying qualifying

relative is a United States citizen‘s spouse.207

Service officers must not be

allowed to legislate from behind their desks.208

This, however, is exactly what

they are doing.209

Meanwhile, United States citizens are being arbitrarily

deprived of constitutional rights and are suffering as a result.210

V. ECONOMIC (IN)EFFICIENCY

The Service‘s reasoning in denying Mr. Smith‘s application for a waiver is

poorly crafted, faulty, and erroneous.211

Such poor service places a heavy

burden on the U.S. taxpayer.212

The evidence overwhelmingly demonstrates

that Mr. Smith is discretionarily deserving of a waiver under INA

§ 212(a)(9)(B)(v), and the Service‘s poor determination in this matter is

without excuse.213

The author cannot help but wonder, how many other

deserving applicants have been denied as a result of poor reasoning of the

Service? The Service must be held to a higher standard.

VI. CONCLUSION

The decision to deny Mr. Smith a waiver was erroneous and legally

insufficient for the reasons previously discussed. Mr. Smith clearly

demonstrated an extreme hardship to a qualifying relative, Mrs. Smith. In the

instant case, the Service‘s weighing of favorable and unfavorable factors, its

203. See, e.g., Immigration and Nationality Act (INA) § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v)

(2006).

204. See id.; supra notes 171-73 and accompanying text.

205. See supra notes 88-90, 194-98 and accompanying text.



208. See supra note 196 and accompanying text.



211. See supra Part III.A.


213. See Immigration and Nationality Act (INA) § 212(a)(9)(B)(v), 8 U.S.C. § 1182(a)(9)(B)(v) (2006);

supra Part III.A.


evaluation of economic hardship, and its ―normal problems associated with

separation‖ standard are all unfounded and without any basis in the law.214

Finally, the constitutional implications of arbitrarily depriving a United States

citizen of his or her spouse at the whim of a Service officer are simply too great

to ignore. The Administrative Appeals Office, the Board of Immigration

Appeals, or an appropriate federal court should weigh the position of the

Service in these types of cases against the arguments discussed herein and issue

clear guidance to Service officers so that congressional intent is honored and

the rights of U.S. citizens and lawful permanent residents are fully protected

under the law.

214. See supra Part III.

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