Gay partner’s ‘hardship’ taken into account for fraud waiver

In an unpublished opinion, the Administrative Appeals Office (AAO) stated that the hardship suffered by an “applicant’s domestic partner of 17 years” could be taken into account when evaluating “extreme hardship” in connection with a fraud waiver.

In that particular case, the applicant was petitioned by his US citizen mother, but his adjustment of status application was denied because of fraud (He had presented false documents indicating he was a US citizen when he tried to enter the US from Mexico in 1993). He then applied for a fraud waiver, based on the “extreme hardship” his mother would suffer if the fraud waiver was not granted. The District Office in San Francisco denied the fraud waiver, concluding that the mother (who is considered a “qualifying relative”) would not suffer “extreme hardship” if her son was sent back to his home country.

The denial was appealed to the AAO in Washington, which concluded that the mother would suffer extreme hardship, and therefore “sustained” the appeal, or effectively approved the case.

What was significant about the case is that aside from considering the direct hardships endured by the mother, the AAO also took into account the emotional and physical hardship that the applicant’s domestic partner would suffer. (Ordinarily, when a person has committed fraud, he or she must apply for a fraud waiver, and demonstrate that a “qualifying relative” would suffer “extreme hardship” if the waiver is not granted. A “qualifying relative” includes only a parent or spouse who is a US citizen or green card holder. Children and/or domestic partners are not considered qualifying relatives).

In considering the emotional and physical hardship on the domestic partner, the AAO actually looked at the hardship the applicant’s mother would suffer, knowing that her son would be separated from his life- long partner. Thus, the hardship and depression of the domestic partner caused emotional and physical hardship on the qualifying relative: “The AAO finds it reasonable to accept that the applicant’s mother views her son’s relationship with his domestic partner as a marriage, and it finds it equally reasonable to expect that she would experience an emotional impact due to her son being separated from his partner”. Thus, the thought of her son being separated from his domestic partner depressed the mother even more, resulting in more “extreme hardship” to her.

I know that people have, in the past, made mistakes and committed fraud and now must file a fraud waiver. However, the law states that you can only take into account the extreme hardship suffered by a spouse or parent. But as you can see from this case, arguments can also be made demonstrating that your qualifying relatives would suffer additional hardship based on the sadness or depression of non-qualifying relatives, such as a domestic partner or even children. In other words, the sadness and depression of non-qualifying relatives makes qualifying relatives sad and depressed, thereby adding to their extreme hardship.

If you are required to file a fraud waiver and have a qualifying relative, you should seek the assistance of an attorney who can fully evaluate the qualifying relative’s extreme hardship, and demonstrate the full extent of that qualifying relative’s extreme hardship, even if it is based on the emotional trauma suffered by others.

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