Interim Decision #1887
MAiaAit OF SHAUGHNESSY
In Deportation Proceedings
A-10229265
Decided by Board July X9,1968
(1) The term "would result in extreme hardship" as used in section 212(h)
of the Immigration and Nationality Act, as amended, encompasses both
present and future hardship.
(2) "Extreme hardship" to an alien himself cannot be considered in determining eligibility for a section 212(h) waiver of inadmissibility.
CHARGE:
Order: Act of 1952—Section 241(a) (4) [8 U.S.O. 1251(a) (4)7—Convicted of
two crimes involving moral turpitude after entry, to
wit: breaking and entering and larceny (Mass. 1966) ;
larceny (Mass. 1966) ; three counts of receiving
stolen goods (Mass. 1966) ; Possession of burglary
tools (Mass. 1966) ; possession of burglary instruments (Mass. 1966) ; attempted to break open a safe
(Mass. 1966).
Ox BEitaxs or RESPONDENT: ON Baum? or Simms:
John E. Buckley, Esquire Irving A. Appleman
339 Main Street Appellate Trial Attorney
Worcester, Mass. 01608
The respondent, a native of England and a, citizen of Erie, has been
found deportable as a criminal alien under the provisions of section
241(a) (4) of the Immigration and Nationality Act (8 U.S.C. 1251 (a)
(4) ). An order entered by the special inquiry officer on February 27,
1968 waived the criminal grounds of exclusion pursuant to the authority contained in section 212(h) of the Immigration and Nationality
Act and adjusted the respondent's immigration status pursuant to
the authority contained in section 245 of the Immigration and Nationality Act, as amended (8 U.S.C. 1255). The trial attorney excepts to
the grant of a waiver under section 212(h) and the adjustment of
the respondent's immigration status pursuant to the provisions of
section 245 of the Act. He appeals from the order entered by the special inquiry officer on February 27, 1968.
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Interim Decision #1,887
The respondent, an unmarried male alien, 20 years of age, was admitted for permanent residence at the port of Boston, Massachusetts,
on April 26, 1957. He was 10 years of age at the time he was admitted
with his mother and father.
The respondent was convicted on July 26, 1966 in the Superior
Court, Worcester County, Worcester, Massachusetts of (a) breaking
and entering and larceny committed on October 4, 1965 in Worcester,
Massachusetts; (b) larceny committed. on October 4, 1965 in Worr
cester, Massachusetts; (c) receiving stolen goods committed on November 4, 1965 in Worcester, Massachusetts; (c1) receiving stolen
goods committed on November 13, 1965 in Worcester, Massachusetts;
(e) receiving stolen goods committed on November 23, 1965 in WoP;
cester, Massachusetts; (f) possession of burglarious tools committed
on November 10, 1Uti5 in Auburn, Massachusetts; (g) possession of
burglary implements commibted.on July 22, 1966 in Millbury, Massachusetts; and (h) attempt to break open a safe in violation of section
21, Chapter 965, General Laws of Massachusetts, committed on. July
2, 1966 in Millbury, Massachusetts.
The respondent concedes that all of the factual allegations contained
in the order to show cause are true and his admissions are supported
by the records of his conviction. The record establishes, by clear, unequivocal and convincing evidence that the respondent is deportable
as charged in the order to show cause. The major crimes' committed
by the respondent involve moral turpitude and do not involve a single
scheme of criminal misconduct.
The respondent applied for an adjustment of his status under section 245 of the Immigration and Nationality Act, as amended, in conjunction with a waiver of his criminal record as a ground of
inadmissibility under section 212(h), of the Act. The ,respondent in
the absence of a waiver is excludable under section 212(a) (9) of the
Immigration and Nationality Act, as amended,.in that he is on alien
who has been convicted of crimes involving moral turpitude.
The respondent at the time of the hearing was the unmarried minor
child of two naturalizedlJnited States citizens. He was born on March
2, 1947 and became 21 years of age on March 2, 1968. He is the beneficiary of a visa petition filed in his behalf by his mother which has
been approved by the District Director, thereby granting him the
status of an immediate relative of a United States citizen under the
'We need nut reach a conclusion as to whether the possession of burgliti
implements as defined by Chapter 288, section 49 of the Massachusetts Criminal
Code involves moral turpitude since the respondent has been convicted pf.six
crimes which inherently involve moral turpitude.
321-4354-69-53 811
Interim Decision #1887
provisions of section 201 (b) of the Immigration and Nationality
Act, as amended (8 U.S.C. 1151 (b) ).
Section 212(h) of the Immigration and Nationality Act provides
the Attorney General with discretion to waive the inadmissibility of
criminal aliens and prostitutes who are the spouse or minor children
of United States citizens or aliens admitted for permanent residence
provided the alien establishes to the satisfaction of the Attorney
General that his exclusion "would result in extreme hardship" to the
United States citizen or lawfully resident alien spouse, parent, son
or daughter of such alien and the admission of such alien would not
be contrary to the national welfare, safety or security of the United
States. The Attorney General must consent to the alien's applying
or reapplying for a visa and for admission to the 'United States.
The special inquiry officer concedes that the exclusion of the respondent from the United States would not entail extreme hardship
to his parents. Both parents testified that they are naturalized citizens of the United States; that they are nnThsupporting and that the
respondent has never contributed to their support although he earned
salaries es 'high as $110 to $115 per Week. The respondent's parents
are separated and under the terms of the separation agreement, the
father sUPPOrta the two younger 'children but contributes nothing to
the support of the mother: There is no provision in the separation
agreement for the support of the respondent.
The special' inquiry 'officer reasoned that under ordinary circumstances, he would find the respondent statutorily ineligible for - a
^vaiSer -under'section'212th), butthat since he '(respondent) would
soon reach his majority (March 2, 1068), he would be precluded from
the grant of a waiver as the minor child of a United States citizen.
After 'considering this and other factors, the special inquiry officer
concluded for' the purpose of this- decision only that the respondent's
exclusion would resort in extreme hardship to' his parents because
each Went is afflicted With a physical condition which might potentially interfere with his or her future employment and both the parents and the respondent have testified that he (respondent) will
contribute to their support in accordance with his means and their
*di; if the occasion ever arises. The respondent's mother testified
thatitie is now 'in reasonably good health, but suffers from a thyroid
condition which may affect her future earnings. The respondent's
father testified he is now in good health but has a tendency to be
diabetic- and that other members of his family have case histories
of diabetes. ; „ •
• The' Servicemaintains that since there is no, showing of record
that there is a reasonable or strong probability that either one of
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Interim Decision #1887
the respondent's parents would have need for the respondent's
support in the foreseeable futUre then the finding of extreme hardship should be based upon the present need of the citizen parents
and not upon prospective, problematical or conjectural hardship.
We note, however, that the former section 5 of the 1957 Act (Public
Law 85-316) and Section 212(h), as amended, uses the language
"would result in extreme hardship." The term "would result"
encompasses both present and future hardship.
The language "would result in extreme hardship" which appears
in section 212(h) is also found in section 244(a) (1) of the Act, as
amended October 24, 1962. This Board has said that "The personal
privation contemplated in a situation characterized by 'extreme
hardship' within the meaning of section 244(a) (1) is not a definable term of fixed and inflexible content or meaning. It necessarily
depends upon the facts and circumstances peculiar to each case."
Matter of Hwang,
10 I. & N. Dec. 448, 451, BLL, 1964. We have also
interpreted the term "extreme hardship" as used in section 5'of the
1957 Act (
Public Law 85-316), the predecessor of section 212(h)
of the amended 1952 Act to mean more than the existence of mere
hardship caused by family separation. Matter of W—,
9 I. & N. Dec.
1 (BIA,1960). . • • - -7 ' ':
Basically, we believe that the facts and circumstances peCuliar to
each case should control when interpreting what amounts to "extreme hardship" within the meaning of section 212(h). Unlike section 244(a) (1) and (2), the statute makes no provision for the
hardship which inures to an alien 'by reason . of his exclusion. Such
hardship is not a factor which may be.considered. The fact that the
respondent will soon reach his majority. and thereby lose• his eligibility for a waiver under section 212(h) as the child of a'-United
States citizen may be a hardship for the respondent. Ilowev er, •the
' - -
statute makes no provision for "extreme hardship" to the alien and
for this reason it cannot be considered in reaching a conclusion as to
eligibility for relief under section 212(h). Furthermore, in this
particular case there is no showing of either present hardship or any
hardship that "would result" in the foreseeable future to the respondent's parents by reason of their alleged physical defects in the
event the respondent was excluded. Accordingly, the facts and circumstances of this particular case do not support a finding of eligibility for a waiver under section 212(h) of the Immigration and Nationality Act as an alien whose exclusion "would result in extreme
hardship" to his citizen pa rents.
-
Section 212(h) provides that an applicant for a waiver must establish that his admisolou "would not be contrary to the national
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Interim Decision *1887
welfare, safety or security of the United States." The special inquiry officer in his opinion refers to the fact that the respondent has
been convicted of several serious crimes committed when he was 18
and 19 years of age; that he is now serving a two-year sentence for
attempting to break open a safe and that the respondent is unable to
show a period of rehabilitation. When an alien has been convicted
of aggravated felonies such as those committed by the respondent,
we believe that there should be a reasonable showing of rehabilitation before there can be a finding that his admission would not be
contrary to the national welfare, safety or security of the United
States. Since the respondent is clearly ineligible for a waiver under
the "extreme hardship" provision of the statute, no purpose would
be served in reaching a conclusion as to whether his admission would
be contrary to the national welfare, safety or security of the United,
States. •
The respondent is statutorily ineligible for voluntary departure
as he is precluded from establishing his good moral character by the
provisions of section 101(f) (3) and (7). An order of deportation
will be entered.
ORDER: It is directed that the order entered by the special inquiry
officer on February 27, 1968 granting the respondent a waiver of
criminal grounds of exclusion pursuant to section 212(h) of the Immigration and Nationality Act and adjusting his immigration status
under the provisions of •section 245 of the said Act be and the same
is hereby withdrawn. •
It is Anther ordered, That the respondent be deported to the Republic of Eire ant, in the event that country declines to accept him,
then to England on the charge stated in the order to show cause excluding the crimes of possession of burglarious tools and burglar
implements'for which he was convicted in the State of Massachusetts
in 1966.
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