26 I. & N. Dec. 566
BIA2015Background
- Respondent, a Moroccan national, entered the U.S. on a visitor visa (1999), married a U.S. citizen, and adjusted to conditional LPR status in 2002; conditions were removed in 2005.
- DHS charged removability based on fraud/misrepresentation (alleging a fraudulent lease submitted with Form I-751) and lack of a valid visa; respondent conceded removability and sought a discretionary waiver under INA §237(a)(1)(H) for fraud.
- Immigration Judge held the waiver unavailable because he read “time of admission” to mean the respondent’s original 1999 nonimmigrant entry, not her later adjustment of status.
- Respondent argued adjustment of status should count as an "admission" for §237(a)(1)(H) waiver purposes, relying on statutory definitions and Board precedent treating adjustment as equivalent to admission in other contexts.
- The Board majority held that adjustment of status can constitute an "admission" for the §237(a)(1)(H) waiver and remanded for factual findings on whether the fraud occurred at adjustment and whether respondent otherwise qualifies.
- A dissent (Member Pauley) would have affirmed, reasoning Congress did not intend to expand the waiver from fraud at entry to fraud at adjustment; he viewed the IIRIRA changes as conforming, not substantive.
Issues
| Issue | Respondent's Argument | DHS/Immigration Judge's Argument | Held |
|---|---|---|---|
| Whether adjustment of status is an "admission" for §237(a)(1)(H) waiver | Adjustment of status is functionally an admission and thus fraud during adjustment is waivable | "Admission" means entry after inspection; waiver should be limited to fraud at original entry | Adjustment of status can constitute an admission for §237(a)(1)(H) waiver purposes |
| Whether §237(a)(1)(H) waiver is limited to fraud at entry | Statutory scheme, §101(a)(20), and §245 treat adjustment as equivalent to lawful admission | Prior Board and circuit precedent limited predecessor waivers to fraud at entry | Waiver not limited to initial entry; covers fraud at time of adjustment when statutory elements met |
| Whether statutory text ("admission" in §101(a)(13)(A)) precludes treating adjustment as admission | Definition not exclusive; other provisions treat adjustment as admission in context | Literal definition excludes adjustment; Congress did not expressly add adjustment | Board adopts contextual reading: "admission" may include adjustment depending on context |
| Remedy/procedure on conceded removability and waiver eligibility | Remand to determine whether the conceded fraud relates to adjustment and whether respondent is otherwise admissible and merits discretion | IJ declined to reach merits because he found statutory ineligibility | Case remanded for IJ to adjudicate factual eligibility and discretionary grant of waiver |
Key Cases Cited
- Khadjenouri v. INS, 460 F.2d 461 (9th Cir. 1972) (circuit precedent interpreting predecessor waiver as limited to fraud at entry)
- Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004) (discusses single "date of admission" concept in removability provisions)
- Ocampo-Duran v. Ashcroft, 254 F.3d 1133 (9th Cir. 2001) (recognizes adjustment of status may serve as an admission in removability context)
- INS v. Errico, 385 U.S. 214 (1966) (historical discussion of fraud-related exclusion/deportation and congressional intent to protect certain family unifications)
- Judulang v. Holder, 132 S. Ct. 476 (2011) (agency action must be tied to statutory purposes; used as interpretive guide to avoid arbitrary results)