FRAUD WAIVER UNDER INA SECTION 237(A)(1)(H)
Immigrants sometimes find themselves in immigration removal proceedings (deportation) because they have obtained their green cards through fraud and or misrepresentation. A common example would be married children of US citizens who lie to the US Embassy about their marital status by stating that they are single in order to obtain permanent residency. Another common example would be a married person who misrepresents her status as single to the US Embassy or USCIS in order to obtain a green through a petition from a new US Citizen spouse.
These immigrants could have their green cards revoked and later on placed in removal proceeding by the USCIS should the government find out about the fraud or misrepresentation. The USCIS (formerly INS) usually discovers the fraud when the immigrant tries to petition another relative or when the immigrant tries to apply for US Citizenship.
However, there are certain relief available in immigration court for such immigrants who are the immediate relatives of either a US Citizen or Permanent Resident. This is the fraud waiver under INA §237(a)(1)(H). The waiver of removal provision under INA §237(a)(1)(H), 8 USC 1227(a)(1)(H), specifically states:
- (H) Waiver authorized for certain misrepresentations. The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i) [8 USC §1182(a)(6)(C)(i)], whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who –
- (i) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and
- (ii) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) [8 USC §1182(a)(5)(A), (7)(A) ] which were a direct result of that fraud or misrepresentation.
A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.
Statutory eligibility for the §237(a)(1)(H) waiver is established by an alien who having entered the United States by fraud or misrepresentation, whether willful or innocent, after having obtained an immigrant visa or equivalent document, and is the spouse, parent, son or daughter of a United States citizen or lawful resident alien.
Once statutory eligibility is established, the waiver is granted in the exercise of the Attorney General’s discretion. For an alien in removal proceedings, the determinations of statutory eligibility and favorable exercise of discretion are made by an immigration judge. 8 C.F.R. §240.11(d). furthermore, unlike most other immigration petitions and applications, as well as most other forms of relief from removal or deportation, there is no formal application or fee required in order to request the §237(a)(1)(H) waiver.
It is well established that the §237(a)(1)(H) waiver is available to cure removability and deportability for an alien whose permanent residence was obtained by misrepresenting his/her marital status, despite the fact that s/he would not have qualified for the immigrant status accorded and never would have been accorded that status had the true facts been known. Casem v. INS, 8 F.3d 700 (9th Cir. 1993)
In exercising discretion over a § 237(a)(1)(H) request, the fraud or misrepresentation for which the alien seeks forgiveness is to be considered in the balancing of positive and negative factors when determining whether the waiver is merited in the Attorney General’s discretion. Matter of Tijam, Interim Decision 3372 (BIA 1998)
Adverse factors may include the nature and underlying circumstances of the fraud or misrepresentation involved; the nature, seriousness, and recency of any criminal record; and any other additional evidence of the alien's bad character or undesirability as a lawful permanent resident of the United States. Favorable considerations may include family ties in the United States; residence of a long duration in this country, particularly where it commenced when the alien was young; evidence of hardship to the alien or her family if deportation occurs; a stable employment history; the existence of property or business ties; evidence of value and service to the community; and other evidence of the alien's good character. Hernandez-Robledo v. INS, 777 F.2d 536 (9th Cir. 1985); see also Matter of Mendez-Moralez, Interim Decision 3272 (BIA 1996).
In addition, equities which were achieved as a result of the fraud or misrepresentation cannot be discounted despite the illegality of the immigrant status obtained. Discounting of lengthy residence and employment as favorable factors is improper: "the inquiry is not into the illegality of his or her presence in the United States but the reasons that an alien should be allowed to stay, despite the illegality. Discounting of child born in the United States as a result of having immigrated fraudulently also has been held impermissible. Casem v. INS, supra
In addition, the Supreme Court has recently held that repetitions or other instances of the fraud that was used to obtain entry in other immigration-related contexts which are "removed in time and circumstance from respondent's entry" can be considered as adverse discretionary factor(s). Yang v. INS, 96 Daily Journal D.A.R. at 13633. This means that the immigration judge must weigh such additional instances of fraud – as with any other adverse factors – against the equities, hardships and any other positive factors.
Should the immigration judge grant your waiver application, after balancing all the equities against the adverse factors discussed above, the immigration judge may terminate your removal case and let you keep your permanent resident status. The effect of your waiver would be retroactive to the time that you first obtained your permanent resident status.
Please note that this article is not legal advice and is not intended as legal advice. The article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article does not create any attorney-client relationship between you and the Law Offices of Kenneth U. Reyes, P.C. This article is not a solicitation.
Attorney Kenneth Ursua Reyes was President of the Philippine American Bar Association for 2005. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. Mr. Reyes is a Certified Family Law Specialist. He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail firstname.lastname@example.org; visit at www.kenreyeslaw.com