(b)(6)

U.S. Citizenship and Immigration Services

MATTER OF M-A-M-

Non-Precedent Decision of the Administrative Appeals Office

DATE: APR.1 , 2016

APPEAL OF U.S. CUSTOMS AND BORDER PROTECTION ADMISSIBILITY REVIEW OFFICE DECISION

APPLICATION: FORM I-212, APPLICATION FOR PERMISSION TO REAPPLY FOR ADMISSION INTO THE UNITED STATES AFTER DEPORTATION OR REMOVAL

The Applicant, a native and citizen of Canada, was found inadmissible for five years after departure from the United States for having been previously ordered removed and seeks permission to reapply for admission to the United States prior to the expiration of this inadmissibility. See Immigration and Nationality Act (the Act) section 212(a)(9)(A)(iii), 8 U.S.C. § 1182(a)(9)(A)(iii). U.S. Citizenship and Immigration Services (USCIS) may remove the inadmissibility bar by granting permission to reapply in the exercise of discretion. The matter is now before us on appeal. The appeal will be dismissed.

In a decision dated July 20, 2015, the Director stated that the Applicant was ordered expeditiously removed from the United States on 2014, and was inadmissible under section 212(a)(9)(A)(i) of the Act as an alien who has been previously removed from the United States. The Director determined that the Applicant' s adverse factors outweigh her favorable factors and that a favorable exercise of discretion was not warranted, and the Director denied the Form I-212, accordingly.

In support of the appeal, the Applicant submits a brief; a letter from herself; and letters from her band members, a record producer, a university professor, and her father. We review these proceedings de novo.

Section 212(a)(6)(C)(i) ofthe Act, 8 U.S.C. § 1182(a)(6)(C)(i), provides:

Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

Section 212(i)(l) of the Act, 8 U.S.C. § 1182(i)(l), provides that section 212(a)(6)(C)(i) inadmissibility may be waived as a matter of discretion for

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Matter of M-A-M-

an alien who is the spouse, son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established ... that the refusal of admission ... would result in extreme hardship to the citizen or lawfully resident spouse or parent of such an alien, or, in the case of a VA W A self-petitioner, the alien demonstrates extreme hardship to the alien or the alien's United States citizen, lawful permanent resident, or qualified alien parent or child.

Section 212(a)(9) of the Act provides in pertinent part:

(A) Certain alien previously removed.-

(i) Arriving aliens.-Any alien who has been ordered removed under section 235(b)(l) or at the end of proceedings under section 240 initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(ii) Other aliens.-Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding,

and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

(iii) Exception.- Clauses (i) and (ii) shall not apply to an alien seeking admission within a period if, prior to the date of the aliens ' reembarkation at a place outside the United States or attempt to be admitted from foreign continuous territory, the Attorney General [now, Secretary, Department of Homeland Security] has consented to the aliens ' reapplying for admission.

The Applicant' s Form I-831, Continuation Page, dated 2014, reflects that the Applicant applied for admission as a visitor with her Canadian passport at the port of entry in

Vermont on , 2014, and claimed to the primary inspecting officer that she was coming to the United States to visit friends . The Form I-831 reflects that the Applicant was referred to secondary inspection. In her 2014, sworn statement, the Applicant

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Matter of M-A-M-

stated that for the past 30 months she was present in the United States for 28 to 29 months, she was not visiting the United States, she worked without authorization, she was returning to resume her employment and residence, and her initial statement that her trip was to visit friends was not truthful. The Applicant was determined to be inadmissible to the United States under section 212(a)(7)(A)(i)(I) ofthe Act as an intending immigrant of the United States. She was expeditiously removed from the United States under section 235(b)(1) of the Act on 2014. The Applicant is inadmissible under section 212(a)(9)(A)(i) for having been previously removed from the United States. She requires permission to reapply for admission into the United States under section 212(a)(9)(A)(iii) of the Act.

We will also address whether the Applicant is inadmissible under section 212(a)(6)(C)(i) of the Act for seeking to procure admission to the United States through fraud or willful misrepresentation of a material fact. The evidence in the record establishes that the Applicant misrepresented her intention when she attempted to enter the United States as a visitor on 2014. She claimed that she was coming to the United States to visit friends. However, the record establishes that she intended to return to her permanent residence in the United States.

"[T]he test of whether concealments or misrepresentations are "material" is whether they can be shown by clear, unequivocal, and convincing evidence to have been predictably capable of affecting, i.e ., to have had a natural tendency to affect, the Immigration and Naturalization Service's decisions." Kungys v. United States, 485 U.S. 759, 760 (1988). The Board of Immigration Appeals (the Board) has held that a misrepresentation is material if either the alien is excludable on the true facts , or the misrepresentation tends to shut off a line of inquiry which is relevant to the alien 's eligibility and which might well have resulted in proper determination that he be excluded . . Matter ofS- and B-C-, 9 I&N Dec. 436,448-449 (BIA 1960; AG 1961).

The Applicant' s misrepresentation is material in that the true facts resulted in her inadmissibility as an intending immigrant under section 212(a)(7)(A)(i)(I) of the Act. As such, the Applicant is also inadmissible under section 212(a)(6)(C)(i) of the Act for seeking to procure admission to the United States through fraud or willful misrepresentation of a material fact.

Next, we will address the Applicant's discretionary factors. In Matter of Tin, 14 I&N Dec. 371 ("Reg' l Comm' r. " 1973), the Regional Commissioner listed the following factors to be considered in the adjudication of a Form I-212 application:

The basis for deportation; recency of deportation; length of residence in the United States; applicant' s moral character; his respect for law and orqer; evidence of reformation and rehabilitation; family responsibilities; any inadmissibility under other sections of law; hardship involved to himself and others; and the need for his services in the United States.

The favorable factors in this case are the Applicant's lack of a criminal record; claims of hardship to herself; her good qualities as evidenced in the letters of support; and expressions of regret for her immigration violations. In her letter on appeal, the Applicant states that she regrets her past actions

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Matter of M-A-M-

of living and working in the United States and misrepresenting her intentions in coming to the United States. She states that she would like the opportunity to return to the United States on a P visa to perform with her band and give back to the community that has supported her. Letters from the Applicant's band members describe her as a talented musician and a community volunteer, a record producer states that the Applicant is the core band member and her services are needed in the United States, a university professor describes the Applicant as talented and responsible, and the Applicant's father states that the Applicant is a responsible person and did not intentionally violate U.S. immigration laws.

The unfavorable factors are the Applicant's seeking entry to the United States through willful fraud or misrepresentation, her lengthy periods of unauthorized stay in the United States, and her lengthy periods of unlawful employment. Furthermore, an application for permission to reapply for admission is denied, in the exercise of discretion, to an individual who is mandatorily inadmissible to the United States under another section of the Act, and no purpose would be served in granting the application. Matter of Martinez-Torres, 10 I&N Dec. 776 (Reg'l Comm'r 1964). In this case, the Applicant is mandatorily inadmissible under section 212(a)(6)(C)(i) of the Act for fraud or willful misrepresentation, and she has not received a waiver for this ground of inadmissibility. 1 Therefore, we will dismiss the Form I-212 as a matter of discretion.

The Applicant has the burden of proving eligibility. See section 291 of the Act, 8 U.S.C. § 1361. The Applicant has not met that burden. Accordingly, we dismiss the appeal.

ORDER: The appeal is dismissed.

Cite as Matter o.fM-A-M-, ID# 15929 (AAO Apr. 1, 2016)

1 The Applicant will need to file Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, to address this ground of inadmissibility.

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