Matter of Ngai

Approval of an application for a waiver of a bar to admission pursuant to section 212(h) of the Immigration and Nationality Act, 8 U.S.C_ § 1182(h) (1982), is dependent in part upon a showing of ex- treme hardship, and thus only in cases of great actual or prospec- tive injury to a qualifying party will the bar be removed.

依据《移民与国籍法》第212(h)条、8 U.S.C. § 1182(h) (1982)申请豁免入境障碍，其批准部分取决于能否证明存在极端困难，因此只有在符合条件的当事人遭受重大实际或预期损害的情况下，才会解除该障碍。

The application was denied by the district director, Hong Kong, which decision has been appealed. The applicant is a Chinese national born in 1927. She is an appli- cant for an immigrant visa based on an approved visa petition filed by her husband, a permanent resident of the United States. She has been found to be excludable from the United States pursuant to section 212(a)(9) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(9) (1982), which provides, in part, for the exclusion of aliens who have been convicted of crimes involving moral turpi- tude. The applicant was found so excludable as a result of a 1974 conviction in Hong Kong of obtaining property by deception in that she was an accomplice to defrauding money from persons by prom- ising to introduce them to United States citizens for the purpose of arranging marriages and immigration to the United States. The applicant filed the instant application, seeking that this per- manent bar to her admission be waived as provided in section 212(h) of the Act, which provides:

该申请被香港地区主任驳回，该决定已被上诉。 申请人是1927年出生的中国国民。她依据其丈夫（美国永久居民）提交的已获批准的签证申请，申请移民签证。她被认定依据《移民与国籍法》第212(a)(9)条、8 U.S.C. §1182(a)(9) (1982)不可入境美国，该条规定部分内容为：曾被判犯有涉及道德败坏罪行的外国人应予排除。申请人因1974年在香港被判犯有以欺骗手段取得财产罪而被认定如此不可入境，该罪行是她作为共犯，通过承诺介绍他人与美国公民相识以安排婚姻和移民美国，从而诈骗他人钱财。 申请人提交了本申请，请求依据该法第212(h)条豁免这一对其入境的永久障碍，该条规定：

spouse, parent, or son or daughter of such alien, and (B) the admission to the United States of such alien would not be contrary to the national welfare, safety or security of the United States; and (2) if the Attorney General, in his discretion, and pursuant to such terms, conditions, and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa and for admission to the United States. In this application she cited the fact that her husband and three daughters were permanent residents in the United States while she has one son remaining with her. She asserted that the bar to her admission imposed a hardship on her husband due to the fact of their imposed separation and the fmancial strain of his having to maintain two households. The district director denied this application, concluding that there was in fact no hardship of any kind as a result of the bar. He found the applicant to be self-supporting in Hong Kong rather than financially supported by her husband. He further found, based on that husband's statement, that husband and wife had not seen each other in over 28 years as a result of their own voluntary decision, and that the husband had no plans to reunite with his wife if she were not admitted to the United States. He thus concluded that the existence of a marriage on paper for this extended period of time was insufficient to establish a basis for the approval of this waiver. On appeal, the applicant contests this decision, asserting that her continued exclusion will result in extreme hardship to her husband in the United States in that he is 60 years old and has serious health problems and that he suffers from hypertension and sinus tachycardia. She claims that her son, now age 35, who lives with her, will soon immigrate to the United States based on a petition filed by the applicant's husband. She asserts that her son is men- tally retarded and unable to care for himself, which will exacerbate her husband's condition. She asserts that her forced absence will work a hardship on both her husband, who will have to continue to support two households and will thus be unable to retire, and on her son, who will be deprived of adequate medical care and atten- tion_ A waiver of bar to admission that results from section 212(a)(9) of the Act is dependent first upon a showing that the fact of the bar imposes an extreme hardship on a qualifying family member. Con- gress provided this waiver but limited its application. By such li rni- tation it is evident that it did not intend that a waiver be granted merely due to the fact that a qualifying relationship existed. The key term in the provision is "extreme" and thus only in cases of great actual or prospective injury to the United States nation will the bar be removed. Common results of the bar, such as separation, financial difficulties, etc. in themselves are insufficient to warrant

配偶、父母或子女遭受极端困难，且(B)该外国人入境美国不会违反美国的国家福利、安全或保障；并且(2)如果司法部长在其自由裁量权范围内，并依据其可能通过法规规定的条款、条件和程序，已同意该外国人申请或重新申请签证及入境美国。 在本申请中，她援引了其丈夫和三个女儿是美国永久居民，而她有一个儿子与她留在一起的事实。她主张，对其入境的障碍给其丈夫造成了困难，原因在于他们被迫分离以及他必须维持两个家庭的经济压力。 地区主任驳回了该申请，认定该障碍事实上并未造成任何形式的困难。他认定申请人在香港自食其力，而非由其丈夫供养。他进一步认定，根据该丈夫的陈述，夫妻二人因自己的自愿决定已超过28年未曾见面，且如果其妻子不被准许入境美国，该丈夫没有与其团聚的计划。因此，他认定，在如此长的时间内仅存在纸面上的婚姻，不足以构成批准该豁免的依据。 在上诉中，申请人对此决定提出异议，主张其继续被排除将给其在美国的丈夫造成极端困难，因为他已60岁且有严重健康问题，患有高血压和窦性心动过速。她声称，与她同住、现年35岁的儿子将很快依据申请人丈夫提交的申请移民美国。她主张其儿子智力迟钝，无法照顾自己，这将加剧其丈夫的病情。她主张，她的被迫缺席将给其丈夫（他将不得不继续供养两个家庭，因而无法退休）和其儿子（他将被剥夺适当的医疗护理和关注）都造成困难。 依据该法第212(a)(9)条产生的入境障碍豁免，首先取决于能否证明该障碍的事实给符合条件的家庭成员造成极端困难。国会提供了这一豁免，但限制了其适用。通过这种限制，显然国会并不打算仅因存在符合条件的亲属关系就批准豁免。该条款的关键词是“极端”，因此只有在给美国国民造成重大实际或预期损害的情况下，才会解除该障碍。该障碍的常见结果，如分离、经济困难等，本身不足以构成批准

approval of an application unless combined with much more ex- treme impacts. Matter of Shaughnessy, 12 I&N Dec. 810 (BIA 1968); Matter of W-, 9 I&N Dec. 1 (BIA 1960). The burden of proof in such a proceeding lies with the applicant, and while an analysis of a given application includes a review of all claims put forth in light of the facts and circumstances of a case, such analysis does not extend to discovery of undisclosed negative impacts. In the matter at bar, many of the applicant's statements regard- ing the causes and extent of any hardship which would result from her exclusion are refuted by the record. The applicant now claims that her son, age 86, is severely retarded and unable to care for himself. However, the record contains a medical report wherein her son is found to be moderately retarded, able to care for himself, and able to do simple industrial work. It further notes that he has been employed in Hong Kong. The applicant's claim that the sepa- ration from her husband causes him financial hardship is refuted by the fact that she is employed in Hong Kong and is in fact self- supporting. The applicant's typification of her husband as a person With severe medical problems with no one other than his wife to look to is refulted both by the description of his medical condition and the fact that he has three adult daughters in the United States. All of these facts, when combined with a 28-year voluntary separation, establish that any hardship that will be imposed on either the applicant's husband or any of her four children, when taken either individually or collectively, falls far short of extreme. Accordingly, the decision of the district director is affirmed and the appeal will be dismissed. ORDER: The appeal is dismissed.

申请的依据，除非结合更为极端的影响。Shaughnessy案，12 I&N Dec. 810 (BIA 1968)；W-案，9 I&N Dec. 1 (BIA 1960)。在此类程序中，举证责任在申请人一方，虽然对特定申请的分析包括根据案件事实和情况审查所提出的所有主张，但这种分析并不延伸至发现未披露的负面影响。 在本案中，申请人关于其被排除将造成的任何困难的原因和程度的许多陈述，均被记录所反驳。申请人现在声称其86岁的儿子严重智力迟钝，无法照顾自己。然而，记录中有一份医疗报告，其中认定其儿子为中度智力迟钝，能够照顾自己，并能从事简单的工业工作。报告还指出，他曾在香港就业。申请人关于与丈夫分离给其造成经济困难的主张，被她已在香港就业且事实上自食其力这一事实所反驳。申请人将其丈夫描述为患有严重医疗问题且除妻子外无人可依靠的人，这既被对其医疗状况的描述所反驳，也被他在美国有三个成年女儿这一事实所反驳。所有这些事实，结合28年的自愿分离，表明将对申请人丈夫或其四个子女中的任何人造成的任何困难，无论单独或集体考量，都远未达到极端程度。 因此，地区主任的决定予以维持，上诉予以驳回。 命令：上诉驳回。