H

                                                 Interim Decision #2161




                              MATTER OF H—

                      In Section 212(h) Proceedings

                                 A-12516129

        Decided by Regional Commissioner August 24, 1972
"Extreme hardship" within the meaning of section 212(h) of the Immigration and
  Nationality Act, as amended, is established where applicant's United States
  citizen spouse is 81 years of age and has already endured a 15-year exile from
  the United States to remain with the applicant in Mexico. Inasmuch as
  applicant has established complete reformation from the activities which
  rendered her excludable and the stability of the relationship between the
  applicant and her citizen spouse has been satisfactorily demonstrated, her
  application for a waiver of the ground of excludability pursuant to section
  212(h) of the Act is granted.
ON BEHALF OF APPLICANT:       L. A. Velarde, Jr.
                             United States Catholic Conference
                             Division of Migration & Refugee Services
                             700 S. Santa Fe
                             El Paso, Texas 79901


  This case is before the Regional Commissioner on appeal from
the decision of the District Director, Mexico City, who on April 13,
1972 found that exclusion of the applicant would not result in
extreme hardship to her United States citizen husband and denied
her application for waiver of excludability.
  The applicant is a 42-year-old married female, a native and
citizen of Mexico residing in Juarez, Mexico with her United
States citizen husband and her 14-year-old illegitimate Mexican
citizen daughter who has been adopted by her husband. She has
never resided in the United States. The American Consul, Juarez,
Mexico, on October 8, 1971 found her to be eligible to receive an
immigrant visa in all respects except for her excludability under
section 212(a)(12) of the Act. This excludability stems from the fact
that she had practiced prostitution in Juarez, Mexico from 1952 to
about 1956 or 1957. She has stated she practiced prostitution in
order to help support her sister who had twelve children.
  The applicant's husband, 81 years of age, was born in Massachusetts and was employed by a manufacturing company in Massa-
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chusetts until his retirement in 1957. Upon retirement he came to
El Paso, met the applicant in Juarez, Mexico, and in that same
year, 1957, started living with her in Juarez and then married her
on May 15, 1970. His current income consists of $168.00 per month
in social security payments and approximately $410.00 per month
in stock dividends and bank interest. He estimates the total value
of his estate to be approximately $100,000.00. Most of his assets are
invested in various stocks which are listed for the record. He has
been living in Juarez with his wife and adopted daughter and has
been providing full support for the two of them since 1957. On July
9, 1971 he filed a petition in behalf of the applicant as the spouse of
a United States citizen. This petition was approved on July 21,
1971.
  The District Director in his decision of the case now before us
stated:
There is no particular hardship caused to the principal relative as a result of the
applicant's exclusion from the United States. He is retired and has voluntarily
lived with the applicant in Ciudad Juarez since 1957; therefore, there is no
separation of family. He has sufficient income and resources to support the
family without working in the United States. in fact, as a retiree, it is probably
to his financial advantage to live in Mexico due to the lower cost of living as
compared to that in the United States.

  We do not find that the facts and circumstances in the case
 'Warrant the denial of the application. In the Matter of Hwang, 10 I.
& N Dec. 448, in a discussion of the term "extreme hardship", it is
stated:
The personal privation contemplated in a situation characterized by "extreme
hardship" within the meaning of the statute is not a definable term of fixed and
inflexible content or meaning. It necessarily depends upon the facts and
circumstances peculiar to each case.
  In the case before us we are not considering an 81-year-old
United States citizen, never previously married, who late in life
finds a compatible companion and begins living with her in 1957
and knowing her past history was still content to enjoy her
company and her care and in return he provided her and her child,
not adopted by him, his full support. She was excludable and he
could not bring her to the United States to live with him. He then
married her, petitioned for her as his spouse and made her eligible
to apply for waiver of her excludability. His residence in Mexico is
not necessarily voluntary. He wants to live with his wife and at
present can only live with her in Mexico. He can live with his wife
                    ,


in the United States only if the present application is granted and
she is granted a visa and admitted to the United States. That he
wants to and intends to live in the United States where he lived
until 1957 is evidenced by the fact that he married her, petitioned
for her as his wife and now is awaiting final Service decision on
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her application for waiver of excludability which, if granted, will
make his wants possible.
   Considering the age of the applicant's United States citizen
spouse, the demonstrated stability of his relationship with the
applicant and the fact that he has already experienced a 15-year
exile from the United States in order to remain with the applicant,
it is concluded that he has already endured hardship and would
continue to endure considerable hardship in the future if the
benefit he seeks is withheld. In the Matter of Shaughnessy, 

, it is pointed out that "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 fu
ture hardship".
  The applicant's husband has a monthly income of $578.00 and
$100,000.00 in stocks and bonds. He is financially well able to`
maintain and support himself and family in the United States for
the remaining years of his life. We cannot in good conscience find
that he is voluntarily living in Mexico for economic reasons. The
applicant has undergone a complete rehabilitation. Other than her
activities as a prostitute before she met her husband, there is no
derogatory information whatsoever.
  Considering all the evidence and circumstances in the case, we
find that the record satisfactorily establishes that the exclusion of
the applicant would result in extreme hardship to her United
States citizen spouse as contemplated by section 212(h) of the Act
and that admission to the United States would not be contrary to
the national welfare, safety or security of the United States. We
find that the favorable exercise of the Attorney General's discretionary authority is fully warranted. The appeal will be sustained
and the application granted.
  ORDER: It is ordered that the appeal be sustained and the
application granted.




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