UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW. BEFORE THE IMMIGRATION COURT NEW YQRK, NEW YORK

In the Matter of

Respondent

On behalf of R¢spondent: Disha Chandiramani Bretz & Coven

In Removal Proceedings

Ol~ behalf ofDHS: Vartges Saroyan

DECISION AND ORnER OF IMMIGRATION JUDGE

TIIE

Respondent seeks a waiver under INA § 237(a)(J )(H) for falsely representing, in connection with her November 2008 adjustment, that she had been admitted to the US in.March 2002. On the basis of her false representation DRS adjusted her status, when in fact she had entered the US without inspection and was not eligible to adjust. DHS, agreeing on the facts, maintains she is ineligible for a 237(a)(1)(H) waiver because if her fraud is forgiven under INA § 237(a)(1)(H) "she still would be ineligible for adjustment of status unless she demcmstrated her eligibility for a 245(i) waiver." DHS response to !J's d~cision, at 2. Respondent counters that even though the adjustment was based on fraud, the adjustment itself in November 2008 was nonetheless an "admission" to the US. At a meritsheariilg December 17,2014, the paIties agreed and stipulated that IF respondentis eligible for a waiver under INA Sec. 237(a)(1)(H) it should be grallted. Respondent married a US-bom citi7:en ill 2005, and the couple has two US citizen children. Her adjustment application was based on a valid 1-130 visa petition submitted by her husballd, which was granted. There is no question but that the marriage is bonafide. While no hardship needs to pe shown, hardship is present: her oldest son has been diagnos~d at NY Presbyterian Hospital with epilepsy, and respondent admini~ters anti-seizure lhedication to him ,dhily. She has a close-knit family. Her mother isa US citizen, and several sisters and sisters-inlaw art< re~idents or citizens. She is employed, has been paying taxes since 2007, and has never been arrested ~ .. She attends Trallsfigui'ati6il Romiur Catho!ic Church ·with her fillniiY. The purposes of family unity will be met if the waiver she seeks is granted. DHS has charged, and respondent has admitted, that she is removable under INA § 237(a)(1)(A) because "at the time of entIy or adjustment of status [she] was within one or more of the classes of aliens inadmissible by the law existing at such time." This particular charge applies explicitly both to people (immigrants and nOll-iI11migrants) who were inadmissible when they entered the US and to those (Immigrants only) who adjusted their status in the US. A waiver under INA § 237(a)(l)(H) is available --~to-people-{immigrants-}·who-were-l~in-possession-ofan-imrnigrant-visa-or-equivalent-document11-and-were--·---­

"othelwise admissible to the United States at the time of such admission." !d., subsection (i)(II). Two sets of questions are raised by this definition:

___

...

-=-~------ ,."lI %m'~~ ;;:::a

~ -- --

(1) Was the "time of [respondent's] admtssion" when she adjusted status? Was her adjustment an "admission"? If so, the waiver may be available to her. Ifnot, it certainly isn't.

(2) Was she "otherwise admissible" at the time of her adjustment of status, but for the direct result of her misrepresentation about.having been admitted earlier? 1. Was the "tim~. of [respondent's] admission" when she adjusted status? Was 'her adjustm~nt an '~ .

"admission"?

" . _. T.h~ BIA's r_ecent q~cision in Matter ofAgour clarifl.t!lat"~qjqstll1en,.':-,t~0~f~st~·a:!o'tu~s~W!:!cl!·tl.!,!1i~ .!! nc.!th!!!e,--_ _---;-_ __ _ _ ----~·W'Onltea~Stat~s constitutes an aamission for purposes of the waiv~f~ iii sectlon231(a)(1)(H) of the Act." . Matter ofAgpyr, 26 X&N J)ec. 566, 570 (BIA 2015). The BIA fluther explained that the 237(a)(1)(H) ''''~!Ner''is not limited only to those [respondents] who engage in fraud or misrepresentation at the time of entry into the United States with an immigrant visa. Therefore, an alien who commits fraud in the course of adjusting status In the United States may have her removal fOl' fraud waived under section 237(a)(1 ) (A) of the Act as an alien who was inadmissible at the time of adjustment of status based on fraud or misrepresentation." fd. To corne to the conclusion that adjustment of status in the US is an admission for a 237(a)(1)(H) waiver, the BIA examined tl~e plain meaning of the statute; its legislative history, and case law that has interpreted the Waiver. The BfA acknowledged that there is a tension betWeen the 237(a)(1) and . 237 (a)( 1)(H) sections of the Act because Congress, when changing the language of the statue that went · into effect in 1997, did not modify the language of 237(a)(l)(H) to conform with the rest of the language in 237(a)(I). The introductory sentence of INA § 237(a) grants the Attorney General authority to physicaiiy "remove" a non-citizen from the US ihbat perspn is "in and admitted to the United States." If the word "admitted" does not include those who have adjusted their status to lawful penrian~nt resident ("LPR"), then the Attomey General lacks authority under this section to remove any such LPRs. "A tension therefore exists between these two proviSIons because an alien remains removable for being inadmissible at th~ time of en,try or adjustment of status pursuant to section 237(a)(1) of the Act, but the waiver covers only an alien's inadmissibility at the tiine pfadmission." fd. at 577. One of two untenable resu.lts would follow:, either people canliot be phy'sicaiIy removed, which would be absurd, o~ they are removable only under INA § 212(a), which is contrary to the practice and all interpretations qfthe law sinqe the "adinission" definition went into effect in 1997. The BIA concluded that despite the conflictinglailguage, "this tension does not preclude us from finding that aliens depOitable for inadmissibility at the time of adjustment of status are among the a.liens who are ' in and admitted' to the United States and are therefore eligible for a section 237(a)(1)(H) waiver." fd. This is prooftluit "in and admitted to" in INA § 2~7(a) includes without a doubt all those who adjusted status, andreliev~s us from having to choose which of the two absurd results we should follow if "adluitf6d" is limited to lhe INA § 101(a)(l3)defiilitiori. Impoltaiitly, in this case j'espbiideilt's cnarge is not for entry without inspection, but for inadmissibility at the time of her adjustment. Thus, in this case, respondent's adjustment of status within the United States constitutes an admission for purposes ofthe INA § 237(a)(1)(H) waiver. Matter ofAgour, 26 I&N Dec. at 570. 2 . .Was respondent "otherwise admissible" at the time of her adjustment of status, but for the direct result of her misrepresentation about having been admitted earlier? , DRS argues that respondent is not eligible for a 237(a)(1)(H) waiver in this proceeding because she "initially entered the US without inspection" and her fraud was "seemingly .dpne to get around her inability to establi.s h her eligibility for a waiver under INA Section 245(i) (DI-IS 's Brief, Feb. 5,2013, at 2

..

----------~·~~~~t~~--~,-~-5~------~~------------------

2) an<;l Qecause the Second Circuit has held (and the Supreme Court has affirmed) that "respondents who were deemed to have entered witho~t inspection cannot seek to Waive 'the documentary requirements for entty' under [former] section 241 (f)" the predecessor to present-day 237(a)(1)(H) (DRS's brief, Jan. 16, , 2015 at 3, citing Reid v. INS, 492 F2d 251, 259 (2d Cir. 1974), aff'd 420 US 619 (1975).) DRS also relies on a Ninth Cii"cuit decision, that is non-binding in this jurisdiCtion, that holds that people who have entered without inspe~tion are not eligible for a 237(a)(1)(H) waiver. Monarrez-Monarrez v. INS, 472 F.2d 1f9 (9th tiro 1912). The Board and COUlts have addressed the avaiIabHity' ofthis waiver or its predecessor in several circumstances illvolvingpeople who have entered without inspection.

MatteroCKIn Matter ofK--:-, 9 I&NDec. 585 (BIA 1962) the BIA addressed the case of a young LPR from Poland who was convicted of a CIMT within 5 years after entry, who left Detroit for Canada and returned a few hours later. He had forgotten his documents so he lied his way back into the US by stating that he was born in Detroit, which was belIeved. Lat~r hewas caught, applied for a 212(c) waiver which was granted without controversy, and also sought a 241 (f) waiver (predece~sor of present 237(a)(l)(H)) for the fraud he had committed upon entering. The BIA addressed a version of the waiver statute (found in the Appendix or'the decision) which required' that the waiver applicant not be "othelwise inadmissible" but did not at that time include waiving removability for lack of proper documentation. The Board 'interpreted the statute to apply the waiver broadly; making three holdings relevant to us. First, despite his avoidance of inspection (citizens are not "inspected," as we'll see in a moment in the Reid case cited by DRS) the natureofK-'s avoidance was fraud. Nonetheless his entry without inspection "render[ed] [the] alien deportable after entry Oil charges which flow directly from the entry by fraud or misrepresentation. The two charges set forth in section 241(a)(2) come within this category." 9 I&N Dec. at 589. Those two charges (lacking proper documents and being illegally present) and another under ~ection 241(a)(2) "as an alien who entered without inspection," were all waivable because they were comprehended by the fraud. Id. The Board spoke of "charges which flow directly from the enny by fraud or misreprese~ltation," id., prior to Q;mgress.' s inclusion of similar language in the present waiver statute. (see the Appendix to the BiA's decision, 9 I~N Dec. at 589-90, quoting the statute it was decided under, which did not inlude the "flow directly from" language.) Thus it appears that Congr~ss's later inclusion of that language in the statute derives from Matter ofK---itself. That being the case, the interpretatioll ofthat language must be COilsistent with its use in Matter ofK---, In K---, the fraud that misrepresentedI<---'s entJy without inspection was viewed as a charge which "directly flowed from" the fraud, i.e. "it was the ihtent of Congress to save from deportation those aliens who were admissible except for the fact that they had made fi'audulent statements regardless of the provision of the statute under whi~h their depOitation is sought," which was enny withoutinspection in K-'s case. In other words, it is the factoff(aud; -regardless of itsp~ilticular content, that.is waived under 237(a)(l)(H) -and its predecessors. Second, as just shown, the charge of ently without inspection in that case was "directly" related to the fraud, making it possible to waive the entJy without inspection that arose out of his misrepresentation of his citizenship. Third, and i1:npOitant for us as an interpretive guide to this section, the Board concluded the - ' - ------Statute?-s-humanitilt:iau..p.tl;lpOSe-should-reach-the-respondent-because,-as-it-had.saicLin_construillg.the ___________ _ predecessor to section 241(f) in Matter ofY--, 8 I&N Dec. 143 (BIA 1959), the waiver provision !'is remedial legislation" and should not be interpreted, if possible, as "requiring family separations." Id.

3

INS. v. Errico The Supreme Court's 1966 consolidated decision in INS. v. Errico, 385 U.S. 214 (1966) affirmed a Ninth Circuit case (Errico) that granted 24'1(f) relIef on the ground that respondent was "otherwise admIssible" and overtur~led a Second Circuit case (Scott) that denied a waiver because she was not "otherwise admissible." The Court affirmed the humanitarian purpose of the statute to keep families together despite fraud (Scott had entered a sham marriage, and after her divorce had a child who was a US citizen at bIrth). In each case the relevant country's visa quota was oversubscribed so a visa woulci not have been available at the time of fraudulent entry, raising the question whether the respective respondents were "otherwise admissible" at the time ofthe fraud, the same question presented here. The -----~Supreme COUlt said: The sharp divergence of opinion among the circuit judges in these cases indicates that the In~aning ofthe words 'oth~rwise admissible' IS not obvious. An interpretation of these

words requires close attention to the language of s 241 (t), to the language of its preclecessoi', s 7 ofthe 1957 Act, and to the iegislative history of these provisions ...The intent of the Act is plainly to grant exceptions to the rigOroUS provisions of the 1952 Act for the purpose of keeping family units together. Congress felt that, in many circumstances, it was more important to unite families and preserVe family ties than it was to enforce strictly the quota limitations or even the many restrictive sections that are designed to keep undesirable orharmful aliens out of the country. . 385 U.S. 214, 218,220. The Supreme Court emphasized the difference in interpretation of "otherwise admitt(;:d," which is similar to the difference presented in this case: Tl:te Government's argument in both cases is that to be othei'wise admissible at the time of ently the alien must show that he would have been admitted even if he had not lied, and that the aliens in these cases Would not have been admitted because of the quota restrictiolls. It is the argument of the a\iens that Qur adoption of the government thesis would negate the intention of Congress to apply fair humanitarian standards in granting r~lieffrom. the consequ~n~es oftheirfi:aud to alien.s who are close relatives of United States citizens, and that the statute wouid have practically no ~ffect if construed as the Government argues, since it requires a considerable stretch ofthe imagination to conceive of an alien making a material misrepresentation that did not conceal some factor that would make him inadmissible. 385 US at 217-2 i 8. The court conCluded that a liberal construction of this provision was reinforced by the legislative histOly~ which showed that: [t]he ftiridrunelital pui'pose ofthis legislation was to unite families .... The Act ... granted relief to persons wh,o would be temporarily or permanently separated from their nearest relatives if the strict requirements of the Immigration and Nationality Act, including the national quotas, were not relaxed for them. It was wholly consistent with this purpose ... ... to unite immigrants who gained admission by misrepresentation, perhaps many years ago, [who] should not be deported because their countries' quotas were oversubscribed when they ~l1teredif the effect of depOltation would be to separate families composed in part of American citizens or lawful permanent residents. --------Et;.Wll-if-th~f~~Fe_SGme_dQubt-as_t.o-the..CQl_T.ect.constt:UCtion..of..the staulte,..utb""eL--_______ doubt should be resolved in favor of the alien. As this Court has held, even where a punitive section is being construed 'We resolve the doubts in favor of that construction

4

because deportation is a di:astic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmishael, 332 U.S. 388, 68 S.Ct. 10,92 L.Ed. 17.

***

.

The 1957 Act was not a punitive statute, and s 7 of that Act, now codified as s ___241(t), in particular was design~d to accomplish a humanitarian result. We conclude that to give meaning to the statute in the light of its humanitarian purpose of preventing the breaking up of families composed in part at least of American citizens, .t he conflict between the circuits must be re~olved in favor ofthe aliens, and that the En'ico decision must be affirmed and the Scott decision revers.ed.

Id.at 224-225. Reidv. INS The Second Circuit made precisely the same observation about the humanitarian purpose of 241 (f) as a rule for interpreting its breadth: The legislative histOlY of § 241 (f) reveals a desire on the part of Congress to avoid the tragic destruction, of family unity that might occur where an alien who fraudulently entered the United States as an immigrant, either by procuring the issuance of an immigration visa through misrepresentation or by deceiving those charged with examination and inspection of immigrants upon entry, later became the spouse, parent or child of a United States Citiien in the United States, with whom he then established a family.

Reidv. INS, 492 F2d251,254(2d Cir. 1974). Ita:lso .n6ted that the Supreme Court in Errico, rejected a literal application of § 241 (t), which would limit it to cases where an alien is charged with fraud in violation of.§ 212(a)(19) of the Act, 8 U ,S.C. § 1182(a)(19) [fraud], conciuding that it 'CallllOt be applied with strict literalness: 385 U.S. at 217,87 S.Ct. at 476, since to do so would frustrate Congress' purpose in enacting it and would deny relief in cases where it was intended to be made available.

Id. at 253-54. Despite the humanitarian purpose of the statl)te, however, the Reid family (husband and wife) were not a:ble to avail themselves of the waiver. Although they had entered the US like K---, successfully (and fraudulently) presenting themselves as US citizens and thereby avoiding the inspection non-citizens were required to undergo, they were not LPRs as K- was. Thus, unlike K--, who was charged with excltidaBilityat the time of his eiitry; they Wei;(fCh~fi'ged only with entry without inspection:· A 241(1) waiver, humanitarian as it was, was limited to people charged with being excludable at'the time of entry, and the Reids were not so charged. The Second Circuit pointed out that complete avoidance orthe inspection process, though fraudulent, was quite different from committing fraud during that process, and the waiver should only be available to those who have gone through that process. It said: [W]e are satisfied that Congress did not intend to permit § 241 (t), particularly in view of its language and legislative history, to be utilized by an alien who had completely Gj.rGum¥~nt~d~tb~elaQGmt.e-immi.gration-visa.ancLscreenil1g-SY.stem.estabJished.h~Y-'t.uhe",,-_ _ Act, thus failing to satisfy any of its requirements at the time of entry. So to hold would in our view be unnecessarily to erode .an essential procedure which has been painstakingly developed for the purpose of screening out those barred from admission on

5

carefully considered qualitative grounds. While § 241(f) may be invoked by an immigrant who gained entry as the result of his misrepresentation of some specific fact sought to be elicited in the screening process, this is a far cry from the wholesale fraud implicit in the complete by-passing of that process. 492 F2d at 256. The distinctions between.Reid and this case are instructive. The Reids were not charged, as respondent has been, with inadmissibility at the time of admission (or its former counterpart, excludability at time of entry). rhe Reids w~re charged with removability for ynpJ' without inspection which (if the ~pplicant is not a Lawful Permanent Residel,t, as in K-'--, or likel I does not support awaiver under 237WJ1XH) cir its former counterpart. hLaddition,jhe-Becond_Ch~cuitt-_ _ _ _ _ _ _ _ __ distinguish~s between those who avoid the process of a detailed inspection in order to seekadu'iissicill into the US and those who go through that process but lie during it. The waiver is available to the latter class, 1 which includes respondent, but not the former class. . . . The Supreme Court affinned-Reid, elaborating on the same grounds that the Second Circuit relied For the SUprel)le Court, the specific depOliation charge made by INS was determinative of whether the waiver was available: . 011.

Thus the 'e;x:pli~it language' of s 241(f) [now 237(a)(1)(H)] under which petitioners rely, waives deportation for aiiens who are 'excludable at the time of entry' by rea~on of the fraud speci_fied iil s 212(a)(19) [now 212(a)(6)(C)(i)], and for that reason deportable under the provisions of s 241 (a)(1) [present 237(a)(I), with the difference that EWr is no longer viewed as an "entry" or admission, its current counterpart, "present without adm-ission," know a ground of inadmissibility, 212(a)(6)(A)(i)]. If the INS were seeking t.o depbit petitioners on this ground, theywouJd be entitled to have applied to them the provIsions of s 241 (f) because of the birth of their children after entry. But the INS in this case does not rely on s 212(a)(19), nor indeed on any of the other grounds for excludability under s 212, which are in tum made grounds for depOltation by the language of s 241 (a)(1). It is instead relying on the separate provision of s 241 (a)(2) [EW!], Which does not depend in any way upon the fact that .an alien was excludable at the time of his enhy on one of the grounds specified in s 212(a). Section 241(a)(2) es~ablishes as a separate ground for deportation, quite independently of whether the alien was excludable at the time of his arrival, the faiiure of an aUen to present l~imselffor inspection at the time he made his entry. If this ground is established by the admitted facts, nothiilg in the waivel' provision of s 241 (f), which by its terms grants relief against depOltation ofaliens 'on the gtound that they were excludable at the time of entry,' has any bearingon the case.

Reidv. INS, 420 U.S. 619, 623 (19-15). Respondent is accordingly "otherwise admis!;;ible." The respondent was charged as an admitted alien under INA §237(a), not a charge ~laiming she is now inadmissible. While respondent used a frau(:i1,lle.n t 1-94 to adjust her status, that act offraud can be waived with a 237(a)(1 )(H) waiver. Her entry

I The statute at the time did not extend the waiver to those who had adjusted status, but point I above makes clear that under the present act the waiver is indeed available to those who adjusted their status in addition to those who became residents at a point of entty.

6

without inspection does not render ,her removable, the underlying bad act of using a fraudulent document to procure the adjustment does?

CONCLUSION Availability of the waiver for respondent is obvious. Whether she committed fi'aud during her adjustment of statUs or not, she went through the process, submitted herself tq. inspection and admission. DHS granted her lawful pennanent resident status and did not catch the fi·aud:~that.is no different from someone coming into the US after inspection with a false or stolen passpOit. Ifsuch fraud is discovered, _ _ _ _ _---'tl,.,.l.><-elperson is not admitted,~oJUd.n.O..Lb_e_arlmitte_d..£oLaj1umheLof.Leas.ons~ncluding,_obyiously.._~_ _ _ _ __ fraud or lack Of proper documenttion. But her fraud was not discovered, and she was admitted after the thorough examin!,l.tion one undergoes when: adjusting status.

It is correct to say that but-for respoiident's fraud she would not 'have been granted adjustment of status. But she was granted adjustment, and now is removable only under INA 237(a)(I)(A), and has been charged thereund~l·. She is not removable (inadmissible) now under Sec. 212(a) for being present without admission, nor has she been charged under that section. There can be no doubt that she has been admitted, just as a person who submits a false passport at a point of entry is undoubtedly admitte,d despite the fraud. An,d since she is now admitted through her adjustment, it matters not what the content ofthe fraud is -:- the fi'aud itself is what is forgiven llnder 237(a)(l)(H). To say she was not "otherwise admissible" would be like saying the woman with the sham marrIage, petitioner Scott in Errico, was not otherwise admissible because a visa quqta number was not available to her. It's precisely that lack of admissibility that is waived when the fi'aud is waived. Finally, we should bear in mind that it i:? only regarding the process of adjustment.of status that she C9mIUitt~d fraud. She did not commit fi'aud in misrepresenting the substantive requirements for residence (as in Ms. Scott did in Errico). She was married to a US citizen, she was eligible for a visa, and DHS's approval of her underlying I..;130 was unquestionably valid. Her fraud only peltained to her procedure, not to her sub,sta.ntive eligibility to become a resident. She avoided the procedure of consular examination, but underwent the procedure of examination, questioning, checking of fingerprints, and questions about (Jther ineligibility by an immigration examiner. Case law 'has uniformly interpreted the details of this provision in liberally to promote its purpose of famiiy unity. As mentioned above, respondent has a US citizen spouse and US citizen children. "Congress' purpose in enacting the waiver was to keep families united, as evidenced by the expansion of the clas~ ofaliens qualifying for the waiver to include the sons and daughters of United States citizens and lawful pennanent residents. See,e.g., Matter ofFederiso, 24 I&N Dec. at 663-64." Matter ofAgoul', 16 I &N Dec. 566, 578 (BIA 2015).

2 For example; iil cases where respondents have entered the United States without inspection, adjusted status to a LPR, and then committed a crime, they are removable. They are removable based on the crimes committed after the adjustment, not the initial entry without inspection. See Matter o/Rosas-Ramirez, 22 1. & N. Dec. 616 (BIA 1999) (respondent was removable based on conviction for ru~ra:vated felony); and is therefore deportable under section 237(a)(2)(A) (iii). Matter o/Chavez-Alvarez, 26 I. & N.Dec. 274 (BIA 2014) (removable based on a conviction for a crime of violence). In both Matter 0/Rosas-Ramirez and Matter ojChavez-Alvarez, the BIA found that the · respondents, both of whom entered the United States without inspection, were adniitted when they adjusted status, and were removable becapse ofthe crimes they committed as LPRs.

7

-Given the parties' stipulation of December 27,2014 that the waiver should be granted if she is statutorily eligible for it, the court, finding her statutorily eligible, WIll grant the waiver.

ORDER IT IS HEREBY ORDERED that respondent's appiication for waiver of removability under INA § 237(a)(1)(H) is hereby GRANTED.

William Van Wyke Immigration Judge July 6, 2015 Appeal due August 5, 2015

\.

8