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Viewing entries tagged
237(a)(1)(H) waiver
The Sixth Circuit has determined that an applicant who refused to answer questions related to marriage fraud at his I-751 interview, and whose conditional residency was terminated for constructive non-appearance at the interview, is not eligible to seek a waiver under section 237(a)(1)(H) of the INA.
The full text of Seldon v. Garland can be found here:
The Second Circuit has determined that a non-citizen whose conditional residence is terminated for failure to file a joint petition to remove the conditions is not eligible to seek a waiver under section 237(a)(1)(H) of the INA, even if the failure to file the joint petition is related to to marriage fraud.
The full text of Bador v. Garland can be found be found here: https://ww3.ca2.uscourts.gov/decisions/isysquery/413f83c3-2f65-479a-a951-2b9c1c3c5908/3/doc/22-6492_opn.pdf
The Fifth Circuit has determined that a 237(a)(1)(H) waiver cannot waive inadmissibility stemming from a crime involving moral turpitude committed prior to adjustment of status nor for deportability related a conviction for visa fraud.
The full text of Reese v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/22/22-60111-CV0.pdf
The Board of Immigration Appeals has limited the circumstances in which a non-citizen may seek a 237(a)(1)(H) waiver to address marriage fraud. Specifically, the waiver cannot be used when the non-citizen is charged with removability for termination of conditional residence when a joint Form I-751 wasn’t filed. In this case, the joint petition was filed, but the U.S.-citizen spouse withdrew her support, and the non-citizen subsequently filed an I-751 waiver based on a good faith marriage, which was denied by USCIS.
The full text of Matter of Bador can be found here:
The Fourth Circuit has determined that a 237(a)(1)(H) waiver is available to an applicant even if her U.S.-citizen father is deceased.
The full text of Julmice v. Garland can be found here:
The Ninth Circuit has determined that a lawful permanent resident who failed to complete the two-year home residency requirement as a J visa holder prior to obtaining his residency remains eligible for a 237(a)(1)(H) waiver. “Section 212(e) does not state that noncitizens subject to its residency requirement are not “admissible” to the United States. Rather, it provides that they are not “eligible” for particular forms of admission. Other forms of admission, not specifically barred by the statute, remain available. For example, § 212(e) does not prohibit admission as a tourist or business visitor under 8 U.S.C. § 1101(a)(15)(B).” “Notwithstanding his failure to satisfy or receive a waiver of the two-year residency requirement, Petitioner was admissible under several provisions of 8 U.S.C. § 1101(a)(15).”
The full text of Fares v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/25/13-71916.pdf
The Ninth Circuit finds that the filing of a frivolous asylum application prohibits an applicant from later seeking a waiver of inadmissibility under section 237(a)(1)(H) of the INA. The petitioner filed a frivolous asylum application in 1999 under a false name, and was subsequently granted asylum and permanent residency under his real name. He was later placed in removal proceedings, and sought a waiver under section 237(a)(1)(H), but the agency determined that the filing of a frivolous asylum application in 1999 barred from seeking the waiver. The Ninth Circuit agreed.
The full text of Manhani v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/11/25/17-72231.pdf
The Third Circuit has determined that a person who is convicted of making false statements in connection with a fraudulent marriage, and who is subsequently charged with deportability for a crime involving moral turpitude, cannot use a waiver under 237(a)(1)(H) of the INA to reach the crime involving moral turpitude ground.
“The fraud waiver ‘also operate[s] to waive removal based on the grounds of inadmissibility directly resulting’ from the underlying fraud. 8 U.S.C. §1227(a)(1)(H). But Tima’s removability under §1227(a)(2)(A)(i) for a conviction of a crime involving moral turpitude is not based on a ‘ground of inadmissibility.’ So the fraud waiver does not reach that clause. This conclusion follows from the Act’s text, structure, and application of the canons of construction.”
The full text of Tima v. Attorney General can be found here:
The Sixth Circuit reversed the BIA's discretionary denial of asylum because it was inconsistent with the Board's precedent in Matter of Pula. The BIA denied asylum as a matter of discretion solely because the applicant had used a stolen passport to enter the country, but Pula states that asylum may not be denied as a matter of discretion based solely on the applicant's circumvention of proper immigration procedures. In addition, the BIA acknowledged that it is more likely than not that the petitioner would face harm due to his religion if returned to Syria. According to its own precedent, this should “outweigh all but the most egregious adverse factors.” The irregular entry cannot be deemed such an egregious adverse factor. Thus, the denial of asylum on discretionary grounds was also inconsistent with this BIA precedent.
With respect to the waiver, the Court found that the BIA applied the wrong standard of review to the IJ's factual findings, engaging in a de novo review instead of a clearly erroneous standard.
The Court found the petitioner statutorily eligible for the waiver, too. The Government argued that because the petitioner was inadmissible at the time of his admission as a nonimmigrant as well as at the time of his adjustment of status. The waiver could cure his inadmissibility at the time of his adjustment only. However, the language of the waiver indicates that "a petitioner who is eligible for a waiver of removal is 'also' eligible for a 'waive[r] [of] removal based on the grounds of inadmissibility directly resulting from [the relevant] fraud or misrepresentation.' "The provision thus contemplates circumstances where an already admitted alien seeks to cure a prior misrepresentation."
The full text of Hussam F. v. Sessions can be found here:
http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0154p-06.pdf
The Seventh Circuit has broadly construed the conduct covered by 237(a)(1)(H) waivers, finding that a petitioner found deportable because his conditional residence was terminated is still eligible for the waiver if the termination was related to fraudulent conduct. In so doing, the Seventh Circuit joins the Ninth Circuit's interpretation of the statute.
The full text of Acquaah v. Sessions can be found here:
The Board of Immigration Appeals has determined that a 237(a)(1)(H) waiver cannot waive a conviction for marriage fraud, when such conviction qualifies as a crime involving moral turpitude. Although the waiver can waive the inadmissibility related to fraud, the conviction qualifies as a separate ground of inadmissibility, not covered by the waiver.
The full text of Matter of Tima can be found here:
I don't usually blog about unpublished cases, but today I'm making an exception. The Third Circuit issues a non-precedential decision regarding marriage fraud (one of the stickiest areas of immigration practice) and 237(a)(1)(H) waivers which I think is worthy of some attention. Tima obtained conditional residence through his marriage to a U.S. citizen, but was later convicted in federal court for marriage fraud. He admitted that his marriage to his first wife was fraudulent. He later remarried and had three children with his second wife, who eventually became a naturalized U.S. citizen. Tima was placed in removal proceedings, where he was charged with removability based on marriage fraud, commission of a crime involving moral turpitude, and the fact that his conditional residence was terminated. Tima argued to the Third Circuit that he could stack a 212(h) waiver (which would waive the immigration consequences of the criminal conviction) with a 237(a)(1)(H) waiver (which would waive the immigration consequences connected with marriage fraud even when there is no criminal conviction). The Government argued (and the Immigration Judge agreed) that the termination of Tima's conditional residence for failure to file a petition to remove the conditions on his residence (I-751) was a separate ground of removability that could not be cured by the waivers.
The Third Circuit found that the 212(h) argument had not been exhausted before the Board of Immigration Appeals, and thus, it had no jurisdiction to consider it. However, it disagreed with the Immigration Judge's finding that the termination of Tima's residence was a separate ground of removability that could not be cured by the 237(a)(1)(H) waiver. The court noted that the form to remove the conditions on his residence would have required Tima to declare, under penalty of perjury, that his marriage to his first wife was not for the purposes of obtaining immigration benefits. Before the form was due, however, he had pled guilty to entering into a sham marriage to his first wife to obtain immigration benefits. Thus, if he had submitted the I-751, he would have committed perjury. Thus, the Government's argument that Tima should have filed the I-751 was untenable.
The Third Circuit remanded the case to allow for consideration of the 237(a)(1)(H) waiver. Moreover, even though the 212(h) waiver had not been exhausted before the Board, Tima would have the opportunity on remand to fully raise this issue.
The full text of Tima v. Attorney General can be found here: http://www2.ca3.uscourts.gov/opinarch/133935np.pdf
