Our office received approval of the I-601 Waiver (Application for Waiver of Grounds of Inadmissibility) for the Thai spouse of a U.S. citizen who was found inadmissible to the United States after being charged with engaging in prostitution due to her previous employment as a masseuse at a massage spa in Thailand.

The U.S. embassy in Bangkok, Thailand is well-known for engaging in rigorous consular interviews – conducting both procedural (checking a computerized database) and investigative checks on its applicants, and vigorously charging applicants with inadmissibility if they suspect certain types of conduct.

The U.S. citizen spouse contacted my office after his Thai spouse was charged with having engaged in prostitution in the past during her immigrant visa interview and deemed inadmissible to the United States pursuant to INA Section 212(a)(2)(D).

Section 212(a)(2)(D) of the Immigration and Nationality Act states:

(D) Prostitution and commercialized vice.-Any alien who-

(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution, or

(iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

• Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
• Multiple criminal convictions (212(a)(2)(B))
• Prostitution and commercial vice (212(a)(2)(D))
• Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
• An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))

The Attorney General may waive the grounds of inadmissibility under section 212(a)(2)(D)(i)-(ii) of the Act with regard to prostitution if the alien establishes to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A).

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that this removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

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, 10 I&N Dec. 448, 451 (BIA 1964 ).

In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565-66 (BIA 1999), 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.  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.

The Board of Immigration Appeals has also made it clear that although hardships may not be extreme when considered abstractly or individually,  “relevant factors, though not extreme in themselves, must be considered in the aggregate in determining whether extreme hardship exists.” Matter of O-J-O, 21 I&N Dec. 381, 383 (BIA 1996) (quoting Matter of Ige, 20 I&N Dec. at 882).  The adjudicator “must consider the entire range of factors concerning hardship in their totality and determine whether the combination of hardships takes the case beyond those hardships ordinarily associated with deportation.”

The Board of Immigration Appeals has also held that hardship factors such as family separation, economic disadvantage, cultural readjustment, et cetera, differ in nature and severity depending on the unique circumstances of each case, as does the cumulative hardship a qualifying relative experiences as a result of aggregated individual hardships.   See, e.g., Matter of Bing Chih Kao and Mei Tsui Lin, 23 I&N Dec. 45, 51 (BIA 2001) (distinguishing Matter of Pilch regarding hardship faced by qualifying relatives on the basis of variations in the length of residence in the United States and the ability to speak the language of the country to which they would relocate).

As an example, the Board of Immigration Appeals has found family separation, a common result of inadmissibility or removal, can also be the most important single hardship factor in considering hardship in the aggregate. See Salcido-Salcido, 138 F.3d at 1293 (quoting Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir. 1983; but see Matter of Ngai, 19 I&N Dec. at 247 (separation of spouse and children from applicant not extreme hardship due to conflicting evidence in the record and because applicant and spouse had been voluntarily separated from one another for 28 years).

We prepared a comprehensive 34-page legal brief going over how the facts and circumstances of my clients’ situation met the legal standards used to define “extreme hardship”; thoroughly demonstrated “rehabilitation” of the Thai spouse; and showed that the Thai spouse’s admission would “not be contrary to the national welfare, safety, or security of the U.S.”  

As with all of our waiver cases, we went above and beyond the work that many law firms would engage in by demonstrating that our client met the legal standard of BOTH INA 212(a)(2)(D)(i)-(ii) and INA 212(h)(1)(B).  This brief was accompanied by supporting exhibits that provided credible proof of every vital and relevant statement made in the legal brief.

The positive factors in this case included:

• Psychological disorders suffered by the U.S. citizen spouse which substantially impairs his ability to function in everyday life.  The psychological disorders are being being aggravated by the prolonged separation of the couple and the unique circumstances of their individual and collective lives.
• Significant health issues suffered by the U.S. citizen spouse, including a pulmonary embolism in the past, which now requires regular medical check-ups and the taking of medication for the rest of his life
• A serious medical condition suffered by the Thai spouse, which requires extremely complicated and high-risk surgery to correct.  Such  surgery is very difficult to obtain from a qualified surgeon in Thailand and complications from the surgery could include nerve damage and infertility.  This situation adds to the mental distress being experienced by the U.S. husband.
• The U.S. citizen husband is financially responsible for three households: his own, his wife’s, and that of his wife’s parents.  Becoming incapacitated due to his various ailments would lead to financial collapse for the U.S. citizen husband as well as that of his extended family.
• The U.S. citizen husband has served multiple long-term tours abroad in a civilian position to support the U.S. military in its “War on Terror.”  He has only recently re-united with his family in the U.S. and cannot bear the thought of leaving the U.S. once again.  He also does not speak Thai and would have no means for supporting himself financially in Thailand.
• Country conditions of Thailand would make it difficult for the U.S. citizen husband to receive the standard of medical care he now receives in the U.S.  The current state of Thai medical care also makes it very difficult for his wife to receive the type of specialized surgery she needs for her serious condition.
• Evidence of rehabilitation of the Thai spouse includes 14 affidavits of good moral character from members of her family; a Buddhist monk; a local government official; prominent members of the business community; and many others who can attest to her honesty, dedication to family, and character.  It also includes her complete honesty during her consular interview; her history of having studied massage therapy (including evidence of schooling in the field); and the reason for her employment at the massage parlor (which was to financially support her impoverished parents).

Although extreme hardship is only considered when suffered by the U.S. citizen or lawful permanent resident parent, spouse, son, or daughter of the foreign applicant under INA 212(h)(1)(B), it is my experience that extreme hardship suffered by any close relative of the qualifying relative should be thoroughly discussed.  In this case, the extreme hardships to be suffered by the U.S. citizen’s spouse herself (the waiver applicant), would in turn impact the U.S. citizen and aggravate all of the conditions he presently suffers from.  This was carefully outlined in detail in our memorandum.  This connection can be made when the waiver applicant plays an integral role in the overall well-being of the U.S. citizen and is needed to assume a vital, day-to-day role in his physical, emotional, and psychological care and oversight.

As a result of the I-601 “prostitution waiver” expeditiously prepared and submitted by my office, the I-601 waiver application was approved by the USCIS.  The couple now happily reside together inside the U.S.