Recently an applicant, who was been denied on I-601 waiver before, filed a motion to reopen and reconsider the AAO's decision in accordance with 8 C.F.R. § 103.5. After submitting many new evidence and with the help of a lawyer, the motion is granted, the prior AAO decision is withdrawn and the underlying appeal is sustained.  Let us have a look at what reasons made AAO reconsider it again and what factors makes AAO withdraw the prior decision.

The applicant is a native and citizen of Bangladesh who was found to be inadmissible to the United States pursuant to section 212(a)(6)(C)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1182(a)(6)(C)(i), for having attempted to procure a visa to the United States through willful misrepresentation. The Field Office Director concluded the applicant failed to establish extreme hardship would be imposed upon a qualifying relative, and denied his Application for Waiver of Grounds of Inadmissibility (Form 1-601) accordingly. The AAO dismissed the applicant's appeal and affirmed the Field Office Director's decision.

On motion, counsel contends: the AAO's dismissal of the applicant's appeal of the denial of his waiver application is "erroneous as a matter of law and fact" as the AAO "improperly assessed and weighed the evidence" provided in support of the waiver application; the AAO "failed to make rational[] and logical inferences from the evidence contained in the administrative record"; and the administrative record "clearly shows the hardship [the applicant's mother] is experiencing goes beyond what is normally experienced by a qualifying relative of an inadmissible individual."
According to 8 C.F.R. § 103.5(a)(2), a motion to reopen must state the new facts to be proved and be supported by affidavits or other documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must state the reasons for reconsideration and be supported by any pertinent precedent decisions to establish that the decision was based on an incorrect application of law or Service policy. A motion to reconsider a decision on an application or petition must, when filed, also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. 8 C.F.R. § 103.5(a)(3). As the applicant has submitted new documentary evidence to support his claim and asserted reasons for reconsideration, the motion to reopen and reconsider will be granted.

Extreme hardship is "not a definable term of fixed and inflexible content or meaning," but "necessarily depends upon the facts and circumstances peculiar to each case." Matter of Hwang, 10I&N Dec. 448, 451 (BrA 1964). In Matter of Cervantes-Gonzalez, the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to a qualifying relative. 22 I&N Dec. 560, 565 (BIA 1999). The factors include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties in such countries; the financial impact of departure from this country; and significant conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate. Id. The BrA added that not all of the foregoing factors need be analyzed in any given case and emphasized that the list of factors was not exclusive. Id. at 566.

The BIA has also held that the common or typical results of removal and inadmissibility do not constitute extreme hardship, and has listed certain individual hardship factors considered common rather than extreme. These factors include: economic disadvantage, loss of current employment, inability to maintain one's present standard of living, inability to pursue a chosen profession, separation from family members, severing community ties, cultural readjustment after living in the United States for many years, cultural adjustment of qualifying relatives who have never lived outside the United States, inferior economic and educational opportunities in the foreign country, or inferior medical facilities in the foreign country. See generally Id. at 568; In re Pilch, 21 I&N Dec. 627,632-33 (BIA 1996); Matter ofIge, 20 I&N Dec. 880, 883 (BIA 1994); Matter ofNgai, 19 I&N Dec. 245, 246-47 (Comm'r 1984); Matter of Kim, 15 I&N Dec. 88, 89-90 (BIA 1974); Matter of Shaughnessy, 12 I&N Dec. 810, 813 (BIA 1968).

On motion, counsel contends: separation from the applicant and his brother "is exacerbating [the applicant's mother'S] medical condition as her mental health has deteriorated significantly and is rooted in her inability to see [the applicant and his brother]"; "while [the applicant's mother's treating mental health professional] does not discuss ongoing treatment, she nonetheless makes it clear that [the applicant's] presence would be advantageous to his mother's mental conditions and physical health"; the applicant's mother "relies upon others to care for her needs ... the burden of caring for her falls on the shoulders of only one of her children[,] who at the same time has his own wife and children to also care for"; the applicant's older brother is a street vendor and "often works long hours in harsh weather conditions just to make sufficient funds to support his family"; the applicant's older brother's "income significantly dropped after 2009 ... [a]t the same time, his financial support obligations have remained the same"; "though the proof of remittance is from 2006, [the applicant's older brother] has continued to support [the applicant and his brother] remaining in Bangladesh"; and the applicant's older brother's family "lives well below the Department of Homeland Security Poverty Guidelines ... [the applicant's] presence in the United States could greatly relieve this burden by providing another source of income ... or he could remain at the family home and care for his mother and nieces while his brother's wife seeks employment." In support of these contentions, the motion includes a letter from the applicant's mother's treating physician, stating, "She persistently experiencing [sic] physical and emotional symptoms, which dramatically restrict her ability to function independently, and make her dependent on others." Medical Letter, Issued by Dr. Alexander Merson, M.D., Ph.D., dated April 24, 2013. The motion also includes an additional medical letter, stating, the applicant's mother's medical conditions "are currently in stable condition, however [she] needs psychiatric follow-up for current non-urgent mental status." Medical Letter, Issued by Dr. Fahim Tazwar, M.D., dated April 23, 2013. And, the motion includes a copy of the applicant's older brother's 2012 income tax returns and a Medicaid online renewal form.

Previously, the AAO determined the record is sufficient to establish the applicant's mother is currently being treated for various medical conditions controlled by prescriptive medications and that she has been diagnosed with Major Depressive Disorder. Additionally, the AAO determined the record is sufficient to establish the applicant's older brother is their mother's primary breadwinner, and he last submitted remittances to the applicant's household on June 7, 2006. On motion, the AAO finds the record is further sufficient to establish the applicant's absence from his mother is a contributing factor to her current mental health condition, and the applicant's presence would be essential to the physical, emotional, and financial wellbeing of his mother and her household. Accordingly, the AAO finds, in the aggregate, the applicant's parent would suffer extreme hardship upon separation from the applicant.
In its previous decision, the AAO found the applicant's parent would experience extreme hardship if she were to relocate to Bangladesh due to her length of residence and strong ties to the United States, she maintains her lawful permanent residence status, her ongoing medical treatment, the current social conditions in Bangladesh, along with the normal hardships associated with relocation. The AAO notes the applicant's parent's circumstances have not improved since the AAO's previous decision. Accordingly, the record continues to reflect the cumulative effect of the hardship the applicant's parent would experience upon relocation due to the applicant's inadmissibility rises to the level of extreme.
Extreme hardship is a requirement for eligibility, but once established it is but one favorable discretionary factor to be considered. Matter of Mendez-Moralez, 21 I&N Dec. 296, 301 (BIA 1996). For waivers of inadmissibility, the burden is on the applicant to establish that a grant of a waiver of inadmissibility is warranted in the exercise of discretion. Id. at 299. The adverse factors evidencing an alien's undesirability as a permanent resident must be balanced with the social and humane considerations presented on his behalf to determine whether the grant of relief in the
exercise of discretion appears to be in the best interests of this country. Id. at 300.

The BIA further stated that upon review of the record as a whole, a balancing of the equities and adverse matters must be made to determine whether discretion should be favorably exercised. The equities that the applicant for section 212(h)(1)(B) relief must bring forward to establish that he merits a favorable exercise of administrative discretion will depend in each case on the nature and circumstances of the ground of exclusion sought to be waived and on the presence of any additional adverse matters, and as the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence. Id.
The favorable factors in this case include extreme hardship to the applicant's lawful permanent resident mother, familial ties, and the absence of a criminal record. The unfavorable factors include the applicant's misrepresentation of his identity upon the attempt to obtain an immigrant visa.
Although the applicant's violation of immigration law cannot be condoned, the positive factors in this case outweigh the negative factors. Therefore, the AAO finds that a favorable exercise of discretion is warranted.
In application proceedings, it is the applicant's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has been met.

ORDER: The motion is granted. The prior decision of the AAO is withdrawn, and the underlying appeal is sustained.