(b)(6)
Date:
NOV
1 4
2013
Office: HOUSTON, TX
INRE:
U.
S. Department
of
Homeland Security
U.S.
Citiz~:nship
and Immigration Services
Office
of
Administrative Appeals
20 Massachusetts Ave., N.W., MS 2090
Washington,
DC
20529-2090
FILE:
APPLiCATION:
Application for Waiver
of
Grounds oflnadmissibility under section 212(h)
of
the
(
Immigration and Nationality Act, 8 U.S.C. § 1182(h)
ON BEHALF OF APPLICANT:
iNSTRUCTIONS:
Enclosed
ple11se
find the decision
of
the Administrative Appeals Office (AAO)
in
your case. This is a
non-precedent decision. The AAO does not announce new constructions
of
law nor establish agency
policy through non-precedent decisions.
Thank you,
A~~
Ron RQsenberg
Chief, Administrative Appeals Office
W'Ww.uscis.gov
(b)(6)
Page2
DISCUSSION: The waiver application was denied by the Field Office Director, Houston,
Texas, and
is
now before the Administrative Appeals Office (AAO) oil appeal. The appeal will
be sustained.
The applicant is a native and citizen
of
Mexico who was found to be inadmissible to the United
States pursuant to section 212(a)(2)(A)(i)(l)
of
the Immigration and Nationality Act (the Act), 8
U.S.C.
§ 1182(a)(2)(A)(i)(l), for having committed a crime involving moral turpitude. The
appliCant seeks a waiver
of
inadmissibility pursuant to sectjon 212(h)
of
the
Act, 8 U.S.C. §
1182(h), iil order to remain in the United States with his U.S. citizen children and lawful
perml:l.llent
resident wife.
In a decision, dated March 11, 2013, the field office director found the applicant inadmissible
under section 212(a)(2)(A)(i)(I)
of
the Act as a result
of
a 1997 conviction for tampering with a
govemil1ent record.· The field office director found that the applicant had failed to establish
extreme hardship to a qualifying relative and denied the Application for Waiver
of
Grounds
of
Inadmissibility
(Forml-601)
accordingly.
On
appeal, the applicant submits additional evidence
of
hardship.
Section 212(a)(2)(A)
of
the Act states, in pertinent parts:
(i) [A]ny alien convicted of, or who admits· having coil1Illitted,
ot
who admits
committing acts which constitute the essential elements
of-
(I) a crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime ,
..
is inadmissible.
(ii)
Exception.--,---Clause
(i)(I) shall not apply to an alien who committed only one
crime if- ·
(I) the crime was committed when the alien was under
18
years
of
age, and
the crime was committed (and the alien was released from· any confinement
to a prison
or
correctional institution imposed for the crime) more
thl:l.ll
5
years before the date
of
the application for a visa or other documentation and
the date
of
application for admission to the United States, or
(II) the maximum penalty possible for the crime
of
which the alien was
convicted (or which the alien admits having committed or
of
which the acts
that the alien admits having committed constituted
the.
essential elements)
did not exceed imprisonment for one year and,
if
the alien was convicted
of
such crime, the alien was not sentenced to a term
of
imprisonrtlent in excess
of
6 months (regardless
of
the extent to which the sentence was ultimately
executed).
(b)(6)
Page 3
The Board
of
Immigration Appeals (BIA) held in Matter
of
Perez-Contreras, 20 I&N Dec. 615,
617-18 (BIA 1992), that: . . . '
[M]otal tUtpitude is a nebulous concept, which refers generally to conduct that
. shocks the public conscience as being inherently base, vlle, or depraved, contrary
to the rules
of
morality and the duties owed between mail
artd
mart,
either one's
fellow man or society in general.
...
In determining whether a crime involves moral turpitude, we consider whether the
act is accompanied by a vicious motive or corrupt mind. Where knowing or
intentional conduct is an element
ofan
offe"se, we have found
mor~l
turpitude to
be present. However, where the required mens rea may not
be
determined from
the statute, moral turpitude does not inhere.
(Citations omitted.)
The record shows that on November 14, 1996, in
Tex~s,
the applicam was
ch_arged
with Tampering With Government Record. On January
1,
1997, he was convicted
of
this
charge and sentenced to two years probation and a $500 fine.
At the
till).e
of
the applicant's conviction, Texas Penal
Code§
37.10 stated:
(a) A person commits an offense
if
he:
(1) knowingly makes a false entry in, or false alteration of, a
governmental record;
(2)
makes,
presents,
or
uses
any
record, document,
ot
thing
with knowledge
of
its falsity and with intent that it
be
taken as
a genuine governmental record;·
(3) intentionally destroys, conceals, removes, or otherwise
impairs the verity, legibility, or availability
of
a govertunental
'·
.
record;
(4) possesses, sells, or offers to sell a governmental record
ora
blank governmental record form with intent that it be
us
.ed
unlawfully; ·
(b)(6)
Page4
(5) makes, presents,
or
uses a governmental record with
lqtowled~e
of
its falsity; or
( 6) possesses, sells,
or
offers to sell a governmental record
or
a
blank. goverrun.ental record
foiJJl
with knowledge that It was
obtained unlawfully.
The complaint in the applicant's case states that, on or about November
11,
1996, the applicant
unlawfully, with the intent that it be used unlawfully, possessed a governmental record, namely a
standard
of
proof
of
liability form, with the intent to defraud and harm another.
ln Matter
of
Serna, 20
I~N
Dec. 579 (BIA 1992), the Board held that ''possession
of
an altered
immigration document with the knowledge that it
w~
aJ1ered,
but without its use or
proof
of
any
intent to use
it
unlawfully,
is
not a crime involving moral turpitude." Given that the
~:~.pplicant
was convicted for not only possessing a fraudulent government record, but also intending to use
it to
de:fr~:~.\ld
and
hart11
another, his conviction is a .crime involving moral turpitude. See, e.g.,
Jordan
v.
DeGeorge, 341 U.S. 223, 232 (1951), ("[t]he
phr~se
'crime involving moral turpitude'
has without exception been construed to embrace fraudulent conduct");
Omagah
v.
Ashcroft, 288
F.3d
:454,
262
(5th
Cir. 2002) (finding that crimes that do not involve fraud, but that include
"dishonesty
or
lying as an essential element" also tend to involve
mor~l
turpitude); see also It ani
v.
Ashcroft, 298 F.3d 1213, 1216 (11th Cir. 2002) ("Generally a crime involving dishonesty
or
false stfttement is considered to be one involving
IIlOr~l
turpitude.''). Therefore, the. applicant is
inadmissible under section 212(a)(2)(A)(i)(l)
of
the Act for having committed a crime involving
moral turpitude. The applicant does not contest his inadmissibility on
appeal.
Section ?12(h)
of
the Act provides, in pertinent part:
The Attorney General [Secretary
of
Homeland Security] may, in his discretion, waive the
application ofsubparagraph (A)(i)(l)
...
of
subsection (a)(2)
...
if-
(1) (A) in the case
of
any immigrant it is established to
the
satisfa<:tion
of
the Attorney
General [Secretary] that --
(i)
...
the activities for which the alien is inadmissible occurred more than
15
years
before the date of' the alien's application for a visa, admission, or adjustment
of
status,
(ii) the admission to the United States
of
such alien· would not be c.ontrary to the
nation~:~.l
welfa_re,
safety, or security
ofthe
United States, and
(iii) the alien has been rehabilitated; or
(b)(6)
PageS
(8)
in
t:he
case
of
an
immigrant who is the spouse, parent, son, or daughter
of
a
citiz~n
of
the United States
or
an alien
lawfu_lly
admitted for permanent residence
if
it is established'
to the satisfaction
of
the Attorney
Gener.al
[Secretary] that the alien's denial ofadmission
would result in extreme hardship to the United States citizen or lawfully resident spouse,
parent, son, or daughter
of
such alien
...
Section 212(h)(l)(A)
ofthe
Act provides that the Secretary may,
inher
discretion, waive the
application
of
subparagraph (A)(i)(I)
of
subsection (a)(2)
if
the activities for which the alien
is
inadmissible occurred more than
15
years before the date
of
the alien's application for a visa,
admission,
ot
adjustment
of
status.
Ail
·application for admission
to
the United States is a
continuing application, and admissibility is determined on the basis
ofthe
facts and the law
at
the
time the application is finally considered.
Matter
of
Alarcon, 20 I&N Dec. 557, 562 (BIA 1992).
Since the criminal activities for which the applicant was found inadmissible occurred more than
IS
years ago, it is wa!vable under .section 212(h)(1)(A)
of
the
Act
Section2L4(h)(1)(A)
of
the
• Act requires that the applicant's admission to the United States not be contrary to the national
welfare, s(lfety, or security
of
the United States, and that he has been rehabilitated.
The record reflects that the applicant has resided in the United States.·since 1980 and his only
arre~t
was in 1996. The applicant has no other criminal record. The applicant has significant
family ties in
.the
United States, including two children, six grandchildren, and his lawful
permanent resident wife
of
32 years.
The record contains letters
of
support from the applicant's spouse, children, and church. These
letters attest to the applicant as a loving and supportive husband and father, a person who is very
close
tO
his family, and as someone who has been involved with his
COilJ.J,llUnity
ChlliC.h
for
10
years.
The
AAO
finds that the record indicates that the applicant's admission to the United States is not
contrary to the
nation<,1.l
welfare, safety, or sec\lfity
of
the United
States.
and that he has been
rehabilitated, as required by section 212(h)(l)(A)
ofthe
Act.
Conseq~ently,
he has established
that he merits a waiver under section212(h)(l)(A)
of
the Act.
· Furthermore, the applicant has established that the favorable factors in his application outweigh
the tmfavorable factors. The favorable factors include the applicant's rehabilitation, the
applicant's family ties in the United States and the passage
of
17
yeats since his last conviction.
The negative factors in the applicant's case are his conviction and periods
of
unauthorized
presence and employment in the United States.
While the
AAO cannot condone the applicant's 2riminal convictions and immigration violations,
the AAO finds that
tpe
positive factors outweigh the negative and a positive exercise
of
discretion is appropriate in this case.
.,
We note
tha.J
in her statement, the applicant's spouse asserts her concerns over
het
husband being
(b)(6)
Page6
barred from the United States for ten years. In Matter
of
Atrabally
and
Yerrabelly,
25
I&N Dec.
771
(BIA 2012), the Board
of
Immigration Appeals (BIA) held that an applicant for adjustment
of
status who left the United States temporarily pursuant to advance parole under section
212(d)(5)(A)
of
the Act did not make a departure from the United
Stat~$
within the meaning
of
section 212(a)(9)(B)(i)(II)
of
the Act. In the applicant's case, on September 16, 2002, he
obtained
advan~e
parole under
sect_ion
212(d)(5)(A)
of
the Act, temporarily left the United States
pursuant to that grant
of
.·
advance parole, and was paroled into the United States on January
6,
2004. ln accordance with the BIA's decision in Arrabally, the applicant did not make a
departure from the
Un,it~d
St<tt(!s
for the purposes
of
section 212(a)(9)(B)(i)(II)
of
the Act.
Accordingly, the applicant is not inadmissible under section 212(a)(9)(B)(i)(II)
of
the Act and no
ten year bar applies in his case.
In
proceedings for application for waiver
of
grounds
of
inadmissibility under section 212(h)
of
the Act, the burden
of
proving eligibility remains entirely with the applicant. Section
291
of
the
Act, 8 U.S.C. § 1361. Here, the applicant has now met that burden. Accordingly, the appeal will
be sustained. ·
OIU>ER:
The appeal is sustained.
