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Cite as 29 I&N Dec. 776 (BIA 2026) 	Interim Decision #4222
Matter of Y-S-P-T-, Respondent
Decided by Board June 26, 20261
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) The respondent did not demonstrate that he could establish the extreme hardship to a
qualifying relative required for a section 212(h) waiver, let alone the higher standard of
exceptional and extremely unusual hardship.
(2) The respondent did not demonstrate that he would warrant a favorable exercise of
discretion for a waiver of inadmissibility and adjustment of status where his equities
regarding his family relationships are outweighed by significant adverse factors, including
his convictions for sexual crimes.
FOR THE RESPONDENT: Melissa N. Smyth, Esquire, Brooklyn, New York
BEFORE: 	Board Panel: 	GORMAN, Deputy Chief Appellate Immigration Judge;
HUNSUCKER, Appellate Immigration Judge; WHITE, Temporary Appellate Immigration
Judge.
HUNSUCKER, Appellate Immigration Judge:
This matter was last before the Board on February 25, 2026, when we
dismissed 	the 	respondent’s 	appeal 	from 	the 	Immigration 	Judge’s
May 12, 2025, decision denying his application for asylum and withholding
of removal under sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration
and Nationality Act (“INA”), 8 U.S.C. §§ 1158(b)(1)(A), 1231(b)(3)(A)
(2024), and protection under the regulations implementing the Convention
Against Torture (“CAT”).2 On March 26, 2026, the respondent, a native and
citizen of Jamaica, filed a timely motion to reopen and request for stay of
1 	Pursuant to Order No. 7026-2026, dated July 20, 2026, the Acting Attorney General
designated the Board’s decision in Matter of Y-S-P-T- (BIA June 26, 2026), as precedent
in all proceedings involving the same issue or issues. See 8 C.F.R. § 1003.1(g)(3) (2026).
Editorial changes have been made consistent with the designation of the case as a
precedent.
2 	The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (entered into
force for United States Nov. 20, 1994). 8 C.F.R. §§ 1208.16(c), 1208.17 (2026); 8 C.F.R.
§ 1208.18(a) (2020).

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removal. 	The motion to reopen will be denied, and the request for stay of
removal will be denied as moot.
The respondent seeks reopening to pursue adjustment of status under
section 245(a) of the INA, 8 U.S.C. § 1255(a) (2024). With his motion, the
respondent submits a Notice of Action (Form I-797), which provides that on
March 	3, 	2026, 	United 	States 	Citizenship 	and 	Immigration 	Services
approved the Petition for Alien Relative (Form I-130) filed on his behalf by
his United States citizen spouse. He also provides an Application to Register
Permanent Residence or Adjust Status (Form I-485), an Application for
Waiver of Grounds of Inadmissibility (Form I-601), and other supporting
evidence.
A motion to reopen must, among other things, “state the new facts that
will be proven at a hearing to be held if the motion is granted, and shall be
supported by affidavits or other evidentiary material.” INA § 240(c)(7)(B),
8 U.S.C. § 1229a(c)(7)(B) (2024); accord 8 C.F.R. § 1003.2(c)(1) (2026). A
motion to reopen will not be granted unless it appears to the Board that
evidence sought to be offered was not available and could not have been
discovered or presented at the former hearing. 	8 C.F.R. § 1003.2(c)(1).
Moreover, the movant must establish prima facie eligibility for the relief
sought. INS v. Doherty, 502 U.S. 314, 323 (1992) (citing INS v. Abudu, 485
U.S. 94, 104–05 (1988)); see also Poradisova v. Gonzales, 420 F.3d 70, 78
(2d Cir. 2005) (stating that the respondent must establish a realistic chance
that he will be able to establish eligibility for relief in the reopened
proceedings). 	We will deny the respondent’s motion because he has not
established a realistic chance he can establish eligibility for relief.
In his motion, the respondent concedes that on September 16, 2019, he
was convicted of the following: 	(1) sexual abuse in the 3rd degree under
section 130.55 of the New York Penal Law; (2) forcible touch - intimate parts
section 130.52(1) of the New York Penal Law; and (3) forcible touch - on
bus/train under section 130.52(2) of the New York Penal Law. 	The
Immigration Judge determined that the respondent would require a waiver of
inadmissibility under section 212(h) of the INA, 8 U.S.C. § 1182(h) (2024),
to adjust his status. On the facts presented, the respondent has not established
a realistic chance he would succeed on a section 212(h) waiver because he
has not established the requisite hardship.
Generally, 	to 	establish 	eligibility 	for 	a 	section 	212(h) 	waiver, 	the
respondent must establish that his removal would result in extreme hardship
to his qualifying relative. See INA § 212(h)(1)(B), 8 U.S.C. § 1182(h)(1)(B).
However, the nature of the respondent’s convictions may require that the

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respondent establish that removal from the United States would result in
exceptional and extremely unusual hardship to a qualifying relative. 	See
8 C.F.R. §§ 212.7(d), 1212.7(d) (2026) (stating that cases involving violent
or dangerous crimes require, in the exercise of discretion, under section
212(h)(2) of INA, 8 U.S.C. § 1182(h)(2), that the applicant demonstrate
exceptional and extremely unusual hardship but providing that even where
extraordinary circumstances are present this might still be insufficient to
warrant a favorable exercise of discretion depending on the gravity of the
alien’s underlying criminal offense). On this record, the respondent has not
established that his removal would meet the lower standard of extreme
hardship to a qualifying relative under section 212(h)(1)(B) of the INA,
8 U.S.C. § 1182(h)(1)(B), let alone the higher standard of exceptional and
extremely unusual hardship. 	See Matter of Monreal, 23 I&N Dec. 56, 65
(BIA 2001) (stating that exceptional and extremely unusual hardship is
hardship that is substantially beyond that which would be ordinarily be
expected to result from deportation); see also Matter of Pilch, 21 I&N Dec.
627, 633 (BIA 1996) (explaining that, to establish extreme hardship, the
applicant must show that the resulting hardship is “over and above the normal
economic and social disruptions involved in deportation”).
The respondent’s qualifying relative is his United States citizen wife,
whom he married on May 28, 2025, following the Immigration Judge’s
May 12, 2025, removal order. The respondent points to the ongoing mental
and physical health challenges his wife has experienced and continues to
experience. 	However, the respondent does not explain how his removal
would result in increased hardship to his wife, as he has been detained since
prior to the marriage. 	Additionally, to the extent the respondent points to
financial hardships his wife may face, the respondent has not claimed any
assets and submitted a fee waiver request with his motion to reopen. 	The
respondent has not established a realistic chance he would succeed on a
section 212(h) waiver based on his recent marriage. Therefore, we will deny
the motion to reopen on that basis.
Further, the respondent has not met his burden to establish that he
warrants a section 212(h) waiver or adjustment of status in the exercise of
discretion. 	See INA §§ 212(h), 245(a), 8 U.S.C. §§ 1182(h), 1255(a); see
also INA § 240(c)(4)(A)(ii), 8 U.S.C. § 1229a(c)(4)(A)(ii) (2024) (stating
that an alien applying for relief or protection has the burden to establish he
or she merits a favorable exercise of discretion); Matter of Mendez, 21 I&N
Dec. 296, 299–300 (BIA 1996) (explaining that when deciding whether to
favorably exercise discretion with regard to a section 212(h) waiver of
inadmissibility, the Immigration Judge must weigh the alien’s equities
against the negative factors in his or her case to determine whether a grant of

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relief is in the best interests of this country); Matter of Arai, 13 I&N Dec.
494, 495–96 (BIA 1970) (addressing general discretionary factors applicable
to applications for adjustment of status). Where adverse factors are present,
an applicant for adjustment of status must offset them with proof of “unusual
or even outstanding equities.” 	Matter of Arai, 13 I&N Dec. at 496. 	Here,
the respondent points to his relationship with his wife and family. However,
those equities are outweighed by the significant adverse discretionary factors
present in the respondent’s case, including his convictions for sexual crimes.
The respondent has not established that he warrants adjustment of status or a
section 212(h) waiver in the exercise of discretion. See generally Matter of
Mendez, 21 I&N Dec. at 299–302; Matter of Arai, 13 I&N Dec. at 495–96.
In sum, the respondent has not demonstrated a reasonable likelihood of
success sufficient to warrant reopening. Matter of L-O-G-, 21 I&N Dec. 413,
420 (BIA 1996) (“Where an alien is seeking previously unavailable relief
and has not had an opportunity to present her application before the
Immigration Judge, the Board will look to whether there is sufficient
evidence proffered to indicate a reasonable likelihood of success on the
merits, so as to make it worthwhile to develop the issues further at a full
evidentiary hearing.”).
ORDER: The motion to reopen is denied.
FURTHER ORDER: 	The request for stay of removal is denied as
moot.
FURTHER ORDER: 	If a respondent is subject to a final order of
removal and willfully fails or refuses to depart from the United States
pursuant to the order, to make timely application in good faith for travel or
other documents necessary to depart the United States, or to present himself
or herself at the time and place required for removal by the Department of
Homeland Security, or conspires to or takes any action designed to prevent
or hamper the respondent’s departure pursuant to the order of removal, the
respondent shall be subject to a civil monetary penalty of up to $998 for each
day the respondent is in violation. See INA § 274D, 8 U.S.C. § 1324d (2024);
8 C.F.R. § 280.53(b)(14) (2026). 	Further, any respondent that has been
denied admission to, removed from, or has departed the United States while
an order of exclusion, deportation, or removal is outstanding and thereafter
enters, attempts to enter, or is at any time found in the United States shall be
fined or imprisoned not more than 2 years, or both. 	See INA § 276(a),
8 U.S.C. § 1326(a) (2024).