PECZKOWSKI

                                                 Interim Decision #159k




                    • MATTER OF Psourows=
                    In Section 212(h) Proceedings
                               A-13i86167
             Doodad by District Director May .04 i 1986-

Notwithstanding a permanent resident alien's short period .of tgesidence here
 and the fact she obtained her iromigrantidsa, knowing her husband might
 not obtain his, and proceeded to the United States, her husband's exclusion
 would result in "extreme hardship" to her within the, meaning of section
 212(h), Immigration and Nationality Act, as amended by P.L. 89-236, since
 in order to suport herself and her &year-told dieghter she is required to
 work full time during which she must entrust the care of her child to
 others; she has found it necessary to make her temporary home with relatives; and the cost of transportation, which she could ill afford, would be
 wasted should her husband's waiver application be denied.

  This case comes before me on' appeal from the March 22, 1966.
order of the Officer in Charge, Frankfurt, denying the application.
  Appellant is a male 35-year-old native of Poland who has resided.
in Great Britain for the past 20 years. He was *girded four years
ago a 31-year-old native and citizen of the United Kingdom..
who was admitted to the United States for permanent-residence in
October 1965. Each has been married once previously; both marriages were terminated_ by divorce. Each has one child; .appellint's
11-year-old daughter is in the custody of his ex-wife in Ragland
and not dependent on him for support. His wife's, eight-year-old
daughter resides with her in the United States. Appellant's spouse
has four sisters in the United States and she temporarily resides
with one of them. Her parents reside in Englind. Appellant_has
no relations in the United States ether than his wife and her daughter, whom he has not yet formally adopted. .
  The appellant was never in the United States. He was found by
the consular officer to be eligible for a visa for permanent residence
in all respects except for excludability -under section 212(a) (9) of
the Immigration and Nationality Act. He was convicted on January 10, 1963 of attempting to evade customs duty. He had been
to Poland to visit his family thereAnd upon returning to England
                                   635
  Interim Decision # 1592
    failed to declare,ko customs authorities a camera presented to hint
c..by his brother while he was visiting in Poland. He paid a £30 fine
   and had his gift camera confiscated. This is the only conviction
   appearing in the record and appellant has credibly testified. this is
   the only act he has ever committed which wiluld_ constitute visa
   ineligibility.
      Because of the nature of the crime and the fact that it is an
   isolated blemish on the appellant's record, the Officer in charge has
   conceded that appellant's admission would not be contrary to the
   national welfare, safety or security. The denying order acknowledges the legal validity of appellant's marriage to his spouse, and
   that she has been lawfnIfy admitted to the United States for permanent residence. The stability and durability of the marriage are
   not questioned. The denying decision then is based solely on a
  finding that appellant's exclusion will not necessarily result in extreme hardship to his United States resident spouse. The finding
  is premised on the argument that his spouse's United States residence
  is artificially contrived; that she had, before she herself went to
  the United States, full knowledge of his excludability and had been
  warned it might not be waived; that she can very well return to
  England and join her husband, arid therefore his exclusion. does not
  impose the degree of hardship upon her contemplated in the statute.
     The record shows it is true she was aware of the conviction at
  The time it took place in 1963, that she and her husband applied
                        ,


  for a visa at the same time in 1965, and that she was made aware
  at that time of the reason..his visa was refused. The United States
  Consul carried out his obligation in telling the appellant of the
 provisions of section 212(h) of the Immigration and Nationality
 Act,- at the same time warning him that the adjudication of applications made under this provision is a discretionary matter administered under the authority of the Attorney General. Mrs. Peczkowski
 was told by the consul that although he had no legal basis to deny
 her visa or that of her daughter, there Picas no alternative but to
 refuse her husband's. It was made clear to her that her husband
 might not be able to' join her in the United States and she was
 required to sign a consular affidavit acknowledging her awareness
 of that possibility, and stating that she assumed full responsibility
 for any physical hardship or mental distress which the separation
 might cause appellant, herself or other members of the family. She
 signed the affidavit, proceeded with her own application, and emigiuted to the United States.
     The waiver of excludability which appellant seeks cannot be
granted pursuant to section 212(h), as amended, unless he establishes
                                 636
                                           . Interim Decision *1592
                         .7%



satisfactorily' that ,his exclusion would result in "extreme hardship"
to his lawfully resident spouse or stepchild. In Matter of
9 1 & N. Dee. 1, the Board of Immigration -Appeals ruled that
"extreme hardship" means "more than the existence of mere hardship caused by family separation."
  It is true that appellant's wife and 'stepchild have boldly risked
the possibility that he might not be found eligible for a yisa'after
they emigrated from England. The disappointment and emotional -
hardship which the wife would apparently experience as a consequence of the denial of this application are the ordinary hardships •
of family separation and do not constitute "extreme hardship"' within
the Board's ruling in Matter of TV— supra. If these were the only
elements of hardship present, it follows that the application could
not be approved. However, while these additional hardships may •
be of her own making, it has been established that appellant's wife
has found it necessary to make her temporary home with relatives,
that she has been forced to entrust the care of her child to such
relatives while she is required to work-full-time to support herself
and eight-year-old daughter. The spouse and child could ill afford
the cost of their transportation to the United States, which would
have been wasted,' and the cost of their return transportation to
England to rejoin appellant, if this application were to be denied.
Under the circumstances, it is concluded that the appellant's exclusion would result in "extreme hardship" to his spouse and stepchild, lawful permanent.residents of the United States.
  If the appellant's spouse were a United States citizen or an alien
with long legal residence in the United States no question would
have arisen; the otherwise overwhelmingly favorable factors would
have led to granting the application. The question. to• be decided
here is whether the short term of residence in the United States -
of appellant's spouse, or the fact that she obtained her visa knowing
that her husband might not obtain his, have any bearing on the
degree of hardship now suffered by appellant's spouse due to his
exclusion.                   -               •
   The statute is quite clear, and neither the law, regulations, inter- •
pretations nor precedent decisions establish a criterion as to how
long a legal resident relative must have resided in. the United States
before the ineligible relative can 'qualify for waiver. In this case
it is clearly established that (1) appellant is ineligible for a visa
under section 212(a) (9) of the Immigration and Nationality Act,
and he has applied for waiver. under section 212(h) of the Act;
(2) his spouse is an alien legally admitted. to the United States for
pernianent residence; (3) his admission would not be contrary to

                                637•
Interim Decision #1692 ,
the national -welfare, safety or security of the United States; and
 (4) his-exclusion would result in extreme hardship to his lawfully
resident spouse.        .
  •The appeal will be sustained.
   ORDER: ' It is ordered that the application of RoMuald Leszek
PECZKOWSELI for waiver' of excludability under section. 21*..)
(9) of the Immigration and Nationality Act be and is hereby
GRANTED pursuant to the authority contained in section 2104
of the Immigration and Nationality Act, PROVIDED that such
waiver shall apply only to the grounds for exclusion referred to
herein.




                              638