Interim Decision #2771 

MATTER OF ALONZO 

In Section 212(1) Proceedings 

A-22449562 

A-22449563 

Decided by Commissioner May 25, 1979 

(1) The birth of a United States citizen child, whether or not born during a lawful stay of 

the parent(s) in the United States, is a favorable factor and must be accorded 

considerable weight in the adjudication of an application for the relief of a waiver of 

grounds of excludability under section 212(i) of the Immigration and Nationality Act., 

8 U.S.C. 1192(1). 

(2) The section 212(i) waiver should be granted in the exercise of discretion, where 

favorable factors are present, and there is absence of countervailing adverse factors. 

(2) Ia a section 212(i) waiver rase, there is no statutory or other requirement that 

extreme hardship be shown. 

(4) Where applicants sought waiver of excludability based on violation of section 

212(aX19) of the Act, S U.S.C. 1182(a)(19), for obtaining visas by fraud and misrepresentation, such violation was not to be considered an adverse factor because it 

was the violation for which they sought to be forgiven. 

ON BEHALF OF APPLICANTS: Raymond Campos, Esquire 

Vivero & Campos 

304 South Broadway 

Suite 310 

Los Angeles, California 90013 

This is before the Commissioner on certification pursuant to 8 C.F.R. 

103.4. On March 16, 1978, the District Director, in an appellate decision, upheld the decision of the Officer-in-Charge which denied the 

applications on the grounds that unfavorable factors outweighed the 

favorable ones and favorable discretion was not warranted in the 

cases. 

The applicants are husband and wife, natives and citizens of Mexico, 

34 and 26 years of age, respectively. They are the parents of two 

children, one of which was born in the United States and a citizen 

thereof. The other child is a citizen of Mexico. The applicants and their 

alien child have applied for immigrant visas at the American Consulate in Tijuana, Baja California, Mexico and have been found eligible 

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except for the excludability of the applicant-spouses under section 

212(a)(19) of the Immigration and Nationality Act. The husband was 

found excludable under this section of law for having obtained a B-2 

nonimmigrant visa by fraud on November 7, 1977, and the wife was 

likewise found excludable for having obtained nonimmigrant visas by 

fraud on March 25, 1976, and October 20, 1976. The fraud consisted of 

having informed the consular officers that the visas were desired for 

tourist purposes when in fact it was their intent to return to reside and 

work in the United States. 

The records reflect that the male applicant was present in the United 

States for the majority of the time from 1971 until his departure to 

Mexico in 1977. His wife, from 1973 until 1977. During this time their 

United States citizen child was born and the husband was employed 

without authorization. 

The Officer-in-Charge in his decision, took into account the age of the 

United States citizen child, now 5 years of age, the fact that she had 

never attended school in the United State .% and that she spoke no 

language other than Spanish_ From this, he concluded there would be 

no cultural shock if the child remained in Mexico with her parents. We 

also pointed out that the birth of a child in the United States after 

December 31, 1976, would not accord a benefit to the parents as it did 

prior to the amendment to the Act on the above date. The birth of a 

child before or after the above date is important in that birth prior to 

that date exempted an alien parent from the labor certification requirement of section 212(a)(14) of the Act, 8 U.S.C. 1182(a)(14) whereas 

birth after that date provided no such exemption. In this, the Officerin-Charge sought to diminish the effect of the birth of the child as a 

favorable factor, which he described as an "accident of birth." As an 

adverse factor, he pointed to the applicants' demonstrated disregard of 

the law, including a statement in the decision not supported by the 

record, that the applicants have smuggled their Mexican citizen child 

into the United States. 

In weighing the factors present in the case, the Officer-in-Charge 

concluded that there were no favorable or compelling humanitarian or 

other factors present and the favorable exercise of the Attorney 

General's discretion was not warranted. 

In a brief submitted by the applicants' attorney in support of the 

appeal filed with the District Director he claims that relief should be 

granted for three reasons: (1) the applicants are parents of a United 

States citizen; (2) they are persons of good moral character; (3) the 

denial of the waiver would cause extreme hardship to them and to 

their United States citizen child. In expanding on the third part of this 

theme, he points out the rights of our citizens to reside in and receive 

the benefits of our country. He likewise contested the view of the 

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Officer-in-Charge that hardship would not accrue to the child by her 

forced absence from the United States. 

The District Director, in his appellate decision, countered the attorney's argument by stating that courts have consistently held that 

the exclusion of a child's parents does not deprive the child of any 

constitutional rights. He also pointed out that the applicants have no 

family ties in the United States other then one sister of the male 

applicant, and that their past entries into the United States evidenced 

a disrespect of the law. As did the Officer-in-Charge, he depreciated the 

effect of the birth of the child in the United States while the parents 

were here in an illegal status, which he viewed as an unfair advantage 

over other aliens not in a similar familial condition. He concluded that 

there was an absence of substantial equities in the case and upheld the 

decision of the Officer-in-Charge. 

Section 212(i) of the Act reads as follows: 

(i) An alien who is the spouse, parent, or child of a United States citizen or of an alien 

lawfully admitted for permanent residence and who is excludable because (1) he seeks 

or has sought to procure, or has procured, a visa or other documentation. or entry into 

the United States by fraud or misrepresentation, or (2) he admits the commission of 

perjury in connection therewith, may be granted a visa and admitted to the United 

States for permanent residence, if otherwise admissible, if the Attorney Gerneral in 

his rlisPration has consented to the alien's applying or reapplying for a visa and for 

admission to the United States. 

This section of law is significantly different from section 212(h) of 

the Act, 8 U.S.C. 1182(h), which precedes it. The same relationship is 

required but section 212(h) has the added requirement that extreme 

hardship must be shown. From this difference we must conclude that 

Congress intended that different standards be applied to the two parts 

with a more liberal standard to be applied to section 212(1), otherwise 

they would read the same. 

In the cases at hand, statutory eligibility is present. The remaining 

requirement is to determine whether favorable discretion is in order. 

To make this determination we must look at the record. The United 

States citizen child is a favorable factor. It will be deprived to some 

extent if it must remain with its parents in Mexico. Obtaining visas by 

fraud and misrepresentation shows disrespect for the law, but this is 

the action for which they seek to be forgiven and should not be held as 

an adverse factor. Other than this, there is nothing of record which 

indicates that they are not persons of good moral character. 

It is felt that the birth of a United States citizen child, whether born 

during a lawful of unlawful stay of the parent or parents in the United 

States, must be accorded considerable weight in the adjudication of a 

section 212(i) waiver application, and in the absence of other strong 

countervailing factors, the application for waiver should be granted. 

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There should be no showing of extreme or unusual hardship required. 

This circumstance should not result, however, in pro forma approval of 

such applications when the entry of the alien would be against the 

public interest of the United States or where other strong adverse 

factors are present. No simple formula is available nor desirable in 

adjudicating those applications, but must be approached on an individual basis. As a general rule, however, the requisite relationship is 

sufficient to result in the favorable exercise of discretion absent substantially unfavorable factors. 

A careful review of the cases at hand indicates that they meet the 

above criteria and they will be approved. 

ORDER. The decision of the District Director is withdrawn and 

the applications are approved. 

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