AAO 212(i) Hardship Victory; Mexico, Alien Smuggling, False Claim

Tarik H. Sultan writes: "Applicant, married to U.S. citizen husband with U.S. citizen children, filed adjustment with INA § 212(i) waiver to address pre-1996 false claim to citizenship.  USCIS denied adjustment, finding her inadmissible for alien smuggling because her underage brother had also made a pre-1996 false claim at the same time.  USCIS did not adjudicate the applicant’s § 212(i) waiver, finding that the inadmissibility for alien smuggling was determinative as there is no waiver available.  Applicant appealed and AAO initially upheld the denial based on alien smuggling, pointing out that the I-213 indicates the applicant was “adamant” that her brother was a U.S. citizen at the time they made their false claims.  Applicant filed motion to reconsider with the AAO arguing that “being adamant” does not constitute an affirmative act, which the 9th Circuit has stated is required to find inadmissibility for alien smuggling.  AAO agreed and reversed itself, finding the applicant was not inadmissible for alien smuggling, and then proceeded to grant the applicant’s previously unadjudicated § 212(i) waiver." - Matter of X-, May 24, 2013.