107 F.4th 75
2d Cir.2024Background
- Shlomo Bador, an Israeli national, married a U.S. citizen and received conditional permanent resident status based on this marriage.
- Two years after his adjustment, Bador and his U.S. citizen wife filed a joint petition to remove the conditions, but the U.S. Citizenship and Immigration Services (USCIS) suspected marriage fraud.
- After being interviewed, Bador's wife admitted to not living with him, withdrew her support for the petition, and he failed to submit a valid joint petition.
- Bador’s conditional permanent resident status was automatically terminated due to the failure to submit the required joint petition.
- The Department of Homeland Security sought to remove Bador; he conceded removability but claimed eligibility for a "fraud waiver" under § 1227(a)(1)(H).
- Both the Immigration Judge and the Board of Immigration Appeals ruled Bador ineligible for the fraud waiver, and Bador petitioned for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Eligibility for fraud waiver under § 1227(a)(1)(H) | Bador argued he should qualify for the fraud waiver because the removal was related to his fraudulent marriage. | The government argued Bador’s removal was for failure to file a joint petition, not fraud, so fraud waiver does not apply. | The fraud waiver is unavailable because Bador was removed due to failure to file a joint petition, not "inadmissibility at the time of admission" for fraud. |
| Whether the ground of removal is sufficiently related to fraud to trigger the fraud waiver | Bador claimed the removal basis was intertwined with fraud. | The government asserted the removal was solely procedural, not on fraud grounds. | The court found no sufficient relationship between the termination and Bador's fraud for waiver eligibility. |
| Applicability of Vasquez and Acquaah interpretations to this case | Bador relied on these circuits to argue that any relation to fraud suffices. | The government distinguished these cases, noting Bador’s termination was for procedural reasons. | The court distinguished these cases, noting Bador failed to file a joint petition, unlike those cases. |
| Use of fraud waiver to excuse failure to file joint petition | Bador asserted the fraud waiver could allow excusal of the failure. | The government argued the fraud waiver applies only to removability provisions, not procedural waivers. | The court agreed the text limits the waiver; only § 1186a(c)(4) provides a waiver for joint-petition requirements. |
Key Cases Cited
- Vasquez v. Holder, 602 F.3d 1003 (9th Cir. 2010) (fraud waiver may apply where termination of residency status is based on marriage fraud)
- Acquaah v. Sessions, 874 F.3d 1010 (7th Cir. 2017) (fraud waiver applies if removal relates to fraud at admission)