INA 237(a)(1)(H) Waiver for Misrepresentation
This waiver is available to individuals who gained an immigrant visa or adjustment of status by fraud or misrepresentation. Only a person in removal proceedings could apply for it.
Section 237 reads:
"(a) Classes of Deportable Aliens.-Any alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
(1) Inadmissible at time of entry or of adjustment of status or violates status.-
(A) Inadmissible aliens.-Any alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time is deportable...
(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), 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) 5a/ (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) 5a/ 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) which were a direct result of that fraud or misrepresentation.
(ii) 5a/ 5aa/ is a VAWA self-petitioner.
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."
To qualify for 237(a)(1)(H) an applicant for this waiver
(1) must have a qualifying relative - the spouse, parent, a child who is US citizen or permanent resident;
(2) must have a possessed an immigrant visa or "equivalent document," - not available for non-immigrants and individuals who entered without an inspection;
(3)"otherwise " admissible "at the time of admission,"
(4) deserves favorable exercise of discretion.
Relevant inquiries for grant of discretionary relief"
- Age when the misrepresentation was committed
- Is the applicant genuinely remorseful
- Length of residence of the applicant in the United States;
- Applicant’s education and employment history;
- Property or business ties;
- Service and value of the applicant to the American community; and
- Good moral character,
- Criminal history.
Again, no need to demonstrate hardship!
237(a)(1)(H) waives not only the exclusion ground but also the underlying fraud and renders the waiver recipient an LPR status (green card) from the time of his initial entry.
Applicability of section 237(a)(1)(H) waiver
Inapplicability of Fraud Waiver to CIMT conviction for marriage fraud. Matter of Tima, 26 I&N Dec . 839 (BIA 2016).
On November 1, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Tima, 26 I&N Dec . 839 (BIA 2016). The court held that a fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act, cannot waive an alien’s removability under section 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude (CIMT), even if the CIMT conviction is based on the underlying fraud.
The respondent is a native and citizen of Cameroon who was admitted to the United States as a student on August 24, 1989. Subsequently, he married an U.S. citizen. On September 22, 1994, his status was adjusted to that of a conditional permanent resident based on his marriage to a United States citizen (conditional green card). However, the respondent’s first marriage to a United States citizen, which was the basis for his conditional permanent resident status, ended in divorce on January 17, 1997.
On March 21, 1997, the respondent entered into his second marriage with another United States citizen.
The DHS started removal proceedings, alleging that the respondent adjusted his status based on fraudulent marriage to a U.S. citizen, and he was convicted of making materially false statements regarding his marriage, and that his marriage was entered into solely for the purpose of obtaining immigration benefits.
The respondent was charged with removability under sections 237(a)(1)(G)(ii) and (2)(A)(i) of the Act as an alien who has committed marriage fraud and who has been convicted of a crime involving moral turpitude (CIMT), respectively.
On April 29, 2010, the DHS terminated the respondent’s conditional permanent resident status as of September 23, 1996. The DHS then lodged an additional charge of removability under section 237(a)(1)(D)(i) of the Act that the respondent’s conditional permanent resident status had been terminated.
During the proceedings, the respondent admitted, that he adjusted his status to that of a lawful permanent resident on a conditional basis. The respondent denied the allegations that he engaged in and was convicted of marriage fraud and that he married to obtain immigration benefits. He also denied the charges of removability. However, the Immigration Judge found that the respondent is removable.
On April 19, 2010, the respondent filed a motion to terminate proceedings, arguing that he was entitled to apply for a waiver of his marriage fraud under section 237(a)(1)(H) of the Act and eligible for adjustment of status based on his current marriage to a United States citizen.
On October 27, 2010, the Immigration Judge denied the motion to terminate the proceedings. The Immigration Judge found that the respondent’s conditional permanent resident status was automatically terminated, leaving him with no lawful permanent resident status. The Immigration Judge also determined that the respondent’s conviction for making materially false statements regarding his marriage is for a CIMT, and she sustained the charge under section 237(a)(2)(A)(i) of the Act. She also found the respondent ineligible for a fraud waiver under section 237(a)(1)(H) because he was not charged with removability under section 237(a)(1)(A) of the Act as being inadmissible at time of adjustment of status.
The respondent appealed from the Immigration Judge’s decision.
The Immigration Judge and the Board agreed that the respondent was eligible to have his deportability charge of misrepresentation of a material fact to procure immigration benefits waived by section 237(a)(1)(H) of the INA.
The question is whether section 237(a)(1)(H) could also waive the charge of deportability for having been convicted of CIMT under section 237(A)(2)(i), specifically where the CIMT conviction was the underlying fraud.
Is the respondent is eligible for a section 212(h) and 212(c) waivers.
- Section 237(A)(1)(H) does not wave deportability under section 237(A)(2)(i)
The court explained that section 237(a)(2)(A)(i) of the Act defines a ground of removability that is “legally distinct” from the grounds for removal contained in section 237(a)(1). Gourche v. Holder, 663 F.3d 882, 886 (7th Cir. 2011). In particular, the respondent’s eligibility for a section 237(a)(1)(H) waiver depends not on whether that provision can waive the fraud underlying his conviction but on whether it can waive his removability under section 237(a)(2)(A)(i), which renders an alien removable for having been convicted of a crime involving moral turpitude.
As a result, even though the respondent’s crime involving moral turpitude charge under section 237(a)(2)(A)(i) of the Act is based on his conviction for marriage fraud, this charge of removability cannot be waived by section 237(a)(1)(H) of the Act. See Fayzullina v. Holder, 777 F.3d 807, 815–16 (6th Cir. 2015)
2. Eligibility for §212(H) waiver
The Board held that the respondent is ineligible for a section 212(h) waiver of his removability under section 237(a)(2)(A)(i) of the Act for having been convicted of a crime involving moral turpitude because he is not an arriving alien seeking to waive a ground of inadmissibility or an alien in removal proceedings seeking to waive inadmissibility in conjunction with an application for adjustment of status. The Board referred to Matter of Rivas, 26 I&N Dec. 130, 132–33 (BIA 2013) that held that a waiver of inadmissibility under section 212(h) of the Act is not available on a “stand-alone” basis to an alien in removal proceedings without a concurrently filed application for adjustment of status.
The Board also cited 8 C.F.R. § 1245.1(f) (2016) providing that an adjustment of status application is “the sole method of requesting the exercise of discretion under [section 212(h)] of the Act, as [it relates] to the inadmissibility of an alien in the United States”
3. Eligibility for §212(c) waiver
The Board held that because the respondent conceded before the Third Circuit that his conditional permanent resident status terminated where Attorney General determined that he had committed marriage fraud he is not eligible for § 212(c) relief citing Matter of Lok, 18 I&N Dec. 101, 105–06 (BIA 1981) where the court recognized that an alien is no longer statutorily eligible for a section 212(c) waiver following the termination of his lawful permanent resident status.
BIA Holds An INA §237(a)(1)(H) Fraud Waiver Does Not Waive Removability Under INA §237(a)(2)(A)(i) For Conviction Of Crime Involving Moral Turpitude, Even Where Conviction Based On Underlying Fraud.
If you have been misrepresented and are interested in filing a waiver, contact Immigration Attorney Irina Vinogradsky for more information!
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