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AAO finds that the favorable factors must outweigh the unfavorable factors for Secretary to exercise favorable discretion. The favorable factors are the extreme hardship to his/her United State citizen spouse who depends on his/her for emotional and financial support, having no criminal record in United States, voluntary departure from the United States and positive character references etc and unfavorable factors are unlawful presence and periods of unauthorized employment.

In discretionary matters, the applicant bears the full burden of proving his eligibility for discretionary relief.

The AAO notes that the record contains several references to hardship that applicant’s United States citizen children would suffer if the applicant were denied admission into the United States. Section 212(a)(9)(B)(v) of the Act provides that a waiver, under section 212(a)(9)(B)(i)(II) of the Act, is applicable solely where the applicant establishes extreme hardship to his citizen or lawfully resident spouse or parent. Unlikely a waiver under section 212(h) of the Act, Congress does not mention extreme hardship to United States citizen or lawful resident children. Where the applicant’s spouse is the only qualifying relative, and hardship to the applicant’s children will not be considered, except as it may cause hardship to the applicant’s spouse.

A section 212(a)(9)(B)(v) waiver of the bar to admission resulting from section 212(a)(9)(B)(i)(II) of the Act is dependent first showing that the bar imposes an extreme hardship to the citizen or lawfully resident spouse or parent of the applicant. Hardship the applicant him/herself experiences upon deportation is irrelevant to a section 212(a)(9)(B)(v) waiver proceeding. Once extreme hardship is established, it is but one favorable factor to be considered in the determination of whether the Secretary should exercise discretion.

In Matter of Cervantes-Gonzalez, 22 I&N Dec. 560, 565-66 (BIA 1999), the Board of Immigration Appeals (BIA) provided a list of factors it deemed relevant in determining whether an alien has established extreme hardship to qualifying relative. The factor include the presence of a lawful permanent resident or United States citizen spouse or parent in this country; the qualifying relative’s family ties outside the United States; the condition in the country or countries to which the qualifying relative would relocate and the extent of the conditions of health, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.