Matter of Bouchra AGOUR, Respondent
Interim Decision #3837
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided May 18, 2015
26 I&N Dec. 566
COLE, Board Member
Adjustment of status constitutes an “admission” for purposes of determining an alien‘s eligibility to apply for a waiver under section 237(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(H) (2012). Matter of Connelly, 19 I&N Dec. 156 (BIA 1984), distinguished.
FOR THE DEPARTMENT OF HOMELAND SECURITY: Eric Bakken, Senior Attorney
BEFORE: Board Panel: COLE and GREER, Board Members. Dissenting Opinion: PAULEY, Board Member.
COLE, Board Member:
In a decision dated June 15, 2010, an Immigration Judge found the respondent removable on her own admissions and ineligible to apply for a waiver under
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Morocco who was admitted to the United States on a nonimmigrant visitor visa in 1999. In July 2001, she married a United States citizen who then filed a visa petition on her behalf.
The Department of Homeland Security (“DHS“) filed a notice to appear with the Immigration Court on September 5, 2008, charging the respondent with being removable under
On June 18, 2009, the DHS filed a Form I-261 (Additional Charges of Inadmissibility/Deportability), withdrawing the section 212(a)(7)(A)(i)(I) charge, withdrawing the general allegations related to marriage fraud, and adding a new allegation that the respondent submitted a fraudulent lease agreement in support of her Form I-751 petition in order to establish the bona fides of her marriage. The respondent admitted this allegation, conceded removability, and as relief from removal, sought a discretionary waiver for fraud pursuant to
The Immigration Judge did not consider the nature of the respondent‘s fraud associated with the submission of a fraudulent lease as it relates to her adjustment to lawful permanent resident status because he concluded that she was not statutorily eligible for the section 237(a)(1)(H) waiver.7 He found that the statute‘s plain language rеgarding the “time of admission” refers to the respondent‘s initial entry into the United States as a nonimmigrant in 1999. He relied on decisions issued by the Board in Matter of Connelly, 19 I&N Dec. 156 (BIA 1984), and the United States Court of Appeals for the Ninth Circuit in Khadjenouri v. INS, 460 F.2d 461 (9th Cir. 1972), interpreting the predecessor waiver to section 237(a)(1)(H) and finding that it was limited to waiving fraud and misrepresentation committed in connection with an alien‘s entry into the United States, not fraud in connection to the alien‘s adjustment of status. The Immigration Judge also relied on the Ninth Circuit‘s decision in Shivaraman v. Ashcroft, 360 F.3d 1142 (9th Cir. 2004), which held that for purposes of removability under
The Immigration Judge examined the statutory language and other court and Board cases finding that an adjustment of status constitutes an admission. However, the Immigration Judge found that adjustment of status is deemed an admission only to avoid “absurd results.”
On appeal, the respondent does not contest her removability but contends that the section 237(a)(1)(H) waiver applies to аny fraud she committed in the process of procuring lawful permanent resident status. She argues that the definition of the term “admission” in
Additionally, the respondent argues that
II. ISSUE
At issue in this case is whether a section 237(a)(1)(H) waiver for certain fraud or misrepresentation at the time of admission is available to aliens who commit fraud in the process of adjusting their status within the United States. The respondent seeks to waive fraud that occurred after her initial entry into the United States as a nonimmigrant. Therefore, the question is whether an adjustment of status can be an admission for purposes of the section 237(a)(1)(H) waiver.
We have not previously published a decision regarding whether a section 237(a)(1)(H) waiver is available to aliens who adjust their status within the United States. To our knowledge, nor has any other Federal court of appeals, including the Ninth Circuit, in whose jurisdiction this case arises.9 Our prior decisions discussing the section 237(a)(1)(H) waiver involved aliens admitted to the United States with immigrant visas who were then charged with being removable for fraud or misrepresentation in that initial entry. See, e.g., Matter of Federiso, 24 I&N Dec. 661 (BIA 2008), overruled on other grounds, Federiso v. Holder, 605 F.3d 695 (9th Cir. 2010); Matter of Fu, 23 I&N Dec. 985 (BIA 2006).
We conclude that an alien‘s adjustment of status within the United States constitutes an admission for purposes of the waiver at section 237(a)(1)(H) of the Act. The waiver is not limited only to those aliens 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 waive removal 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.
III. ANALYSIS
With questions of statutory interpretation, we look first to the plain and sensible meaning of the statute and give effect to that meaning when possible. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 340–41 (1997);
A. Statutory Framework
1. Section 101(a) of the Act
Because we do not derive statutory meaning in a vacuum, we find that the language of
Prior to 1996, section 101(a)(13) defined the term “entry” as the “coming of an alien into the United States, from a foreign port or place or from an outlying possession.” In 1996, that term was eliminated, and the terms “admission” and “admitted” were first defined by section 301 of the Illegal Immigration Reform and Immigrant Responsibility Act, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-575 (“IIRIRA“), which was entitled “Treating persons present in the United States without authorization as not admitted.” See IIRIRA § 301(a), 110 Stat. at 3009-575. Aliens who have adjusted status in the United States are not “persons present in the United States without authorization,” suggesting that Congress did not intend for section 101(a)(13)(A) of the Act to preclude a finding that aliens who adjust their status have been admitted. The new terms were codified with three provisions in a new section 101(a)(13).10 The conference report for the IIRIRA states that in creating
Moreover, under
Finally,
2. Section 245 of the Act
We agree with the respondent that section 245(b) treats adjustment of status as substantially equivalent to an admission pursuant to an immigrant visa, or a “lawful admission for permanent residence.” See
3. Sections 237(a)(1)(A) and (H) of the Act
B. Legislative History of Section 237(a)(1) of the Act
1. Precursor Statutes to the Fraud Deportation Ground and Waiver
Former section 241(a)(1) of the Act, 8 U.S.C. § 1251(a)(1) (1952), was parallel to the current section 237(a)(1)(A), in that it referred to classes of aliens excludable by law at the time of entry, as provided in former section 212(a) of the Act, 8 U.S.C. § 1182(a) (1952). See Immigration and Nationality Aсt, Pub. L. No. 82-414, § 241(a)(1), 66 Stat. 163, 204 (1952).13 In turn, section 212(a) generally referenced “classes of aliens ineligible to receive visas and excluded from admission.” See 66 Stat. at 182 (emphasis added). Although the term “admission” was used in section 212(a) and other parts of the 1952 Act, the term was not then defined in the statute.
In 1957, Congress created an exception from deportation under section 241(a)(1) for aliens who were “excludable at the time of entry” on account of fraud or misrepresentation, as described in former section 212(a)(19) of the Act.14 Act of Sept. 11, 1957, Pub. L. No. 85-316, § 7, 71 Stat. 639,
In comparing the language of the deportability ground at former section 241(a)(1) of the Act and the section 7 exception, we note that the provisions contained corresponding language providing that an alien was deportable if he was “excludable . . . at the time of . . . entry” and that this deportation ground was waivable for aliens who were “excludable at the time of entry” on account of fraud or misrepresentation.
In 1961, Congress codified the fraud waiver provisions of section 7 at former section 241(f) of the Act, 8 U.S.C. § 1251(f) (1964), but it did not include the language regarding the Attorney General‘s discretion. See Act of Sept. 26, 1961, Pub. L. No. 87-301, § 16, 75 Stat. 650, 655–56. Consequently, the fraud waiver was interpreted to be availablе to any qualifying alien who used fraud to gain admission. In 1981, Congress made clarifying amendments to former section 241(f) to address confusion in Board and circuit court case law. These amendments (1) reinstated the discretionary nature of the waiver; (2) provided that it related to fraud or misrepresentation, “whether willful or innocent“; and (3) clarified that it was only intended to apply to immigrants. See Immigration and Nationality
2. 1990 Amendments
In 1990, Congress amended the language of both the deportation ground at former section 241(a)(1) of the Act and the waiver at former section 241(f). Immigration Act of 1990, § 602(a), Pub. L. No. 101-649, 104 Stat. 4978, 5077–79. First, Congress created new headings, including the following for section 241(a)(1)(A): “(a) Classes of deportable aliens,” “(1) Excludable at the time of entry or of adjustment of status or violates status,” and “(A) Excludable aliens.” (Emphasis added.) In addition, the text of section 241(a)(1)(A) provided for the deportability of an alien who “at the time of entry or adjustment of status was within one or more of the classes of aliens excludable by the law existing at such time.” (Emphasis added.)
The waiver at former section 241(f) was repealed, and a new section 241(a)(1)(H) was added, entitled “Waiver authorized for certain misrepresentations.” §§ 602(a), (b), 104 Stat. at 5079, 5081. The waiver applied to “the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens described in section 212(a)(6)(C)(i)” of the Act. Furthermore, the text of the waiver was amended to include eligibility for the sons and daughters of United States citizens and lawful permanent residents, not just those who qualified as their “children” under the Act. See
Although the amendments expanded the ground of deportability for aliens excludable based on fraud at the time of entry to include those who were excludable at the time of their adjustment of status, the related fraud waiver remained limited to aliens excludable “at the time of entry.” As a result, after the Immigration Act of 1990, certain aliens found deportable for being excludable at the time of entry as a result of fraud or misrepresentation could seek a waiver under former section 241(a)(1)(H), but similarly situated aliens whose fraud or misrepresentation at the time of adjustment of status rendered them excludable could not.
3. 1996 IIRIRA Amendments
In 1996, Congress replaced the definition of the term “entry” at
With regard to the section 237(a)(1)(H) waiver, its language was modified through conforming amendments that struck the words “excludable” and “entry” and replaced them with “inadmissible” and “admission.” IIRIRA § 308(d)(2)(A), (f)(1)(M), 110 Stat. at 3009-617, 3009-621. Congress left the waiver provision within section 237(a)(1) of the Act but did not modify the language of section 237(a)(1)(H) to conform to the language of section 237(a)(1)(A), which included adjustment of status. A tension therefore exists between these two provisions because an alien remains removable for being inadmissible at the time of entry or adjustment of status pursuant to section 237(a)(1) of the Act, but the waiver covers only an alien‘s inadmissibility at the time of admission. Given our overall statutory interpretation and case law, however, this tension does not preclude us from finding that aliens deportable for inadmissibility at the time of adjustment of status are among the aliens who are “in and admitted” to the United States and are therefore eligible for a section 237(a)(1)(H) waiver.
C. Statutory Language and Relevant Case Law
The statutory language and relevant case law also support our conclusion that section 237(a)(1)(H) of the Act waives the ground of removal for misrepresentation at the time of adjustment of status, just as it serves to waive the same grounds of removal linked to inadmissibility arising at the time of entry on an immigrant visa.
1. Language of Section 237(a)(1)(H) of the Act
In 1984, we held that the former section 241(f) waiver was limited and could only be used where fraud was committed at the time of entry. Matter of Connelly, 19 I&N Dec. at 156. However, that waiver provision specifically applied to fraud at the time of “entry.” Congress has since
The legislative history of the IIRIRA is not specific as to why Congress replaced the word “entry” with “admission” at section 237(a)(1)(H) of the Act. However, it is clear that it amended the removal provisions as a whole to focus on “admissions” rather than “entries” and that the plain language of section 237(a) contemplates that aliens who were inadmissible at the time of adjustment of status are “in and admitted” to the United States and are therefore subject to removal under section 237(a)(1)(A) of the Act.
Additionally, Congress’ purpose in enacting the waiver was to keep families united, as evidenced by the expansion of the class of aliens qualifying for the waiver tо include the sons and daughters of United States citizens and lawful permanent residents. See, e.g., Matter of Federiso, 24 I&N Dec. at 663–64. Therefore, by construing the amended language of section 237(a)(1)(H) of the Act regarding inadmissibility “at the time of admission” to include adjustment of status, we interpret the statute in keeping with Congress’ humanitarian goal of preventing the separation of families. Cf. Judulang v. Holder, 132 S. Ct. 476, 485 (2011) (stating that agency action must be based on “relevant factors,” meaning that the Board‘s approach must be tied to the purposes of the immigration laws or appropriate operation of the immigration system and that a method for disfavoring deportable aliens that bears no relation to an alien‘s fitness to remain in the country is arbitrary and capricious).
Limiting the waiver to the time of an alien‘s entry with an immigrant visa would lead to an incongruous application of section 237(a) of the Act. Aliens who are inadmissible at the time of entry or adjustment of status wоuld be subject to removal as aliens “in and admitted” to the United States, but the waiver for fraud or misrepresentation at the time of admission would only apply to the alien‘s initial entry, when the statutory language no longer explicitly states as much. As noted, the definition of the terms “admission” and “admitted” in section 101(a)(13)(A) of the Act is not exclusive and does not adequately address the scope of the section 237(a)(1)(H) waiver within the whole of section 237(a).
2. Adjustment of Status as an Admission in Other Contexts
Our holding comports with the well-established understanding that adjustment of status constitutes an admission, as the term is used in certain other parts of the Act. Additionally, we have recognized in certain instances that an alien who has adjusted status to that of a lawful permanent resident has been admitted to the United States. Specifically, we rely on our prior decisions as underscoring the fact that an admission may include adjustment of status in the United States depending on the context in which the term is used, because many of our cases have found that section 101(a)(13)(A) of the Act does not provide the exclusive definition for an admission.
An example is Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014), in which we reaffirmed Matter of Rosas, 22 I&N Dec. 616. In each case, the alien initially entered the United States without inspection and later adjusted status to that of a lawful permanent resident. And in both we held that an alien who was convicted of an aggravated felony after he adjusted to lawful permanent resident status was subject to removal under section 237(a)(2)(A)(iii) of the Act as having been convicted of an aggravated felony “at any time after admission.”17
In Rosas, we noted that adjustment of status does not meet the literal definition of “admission” or “admitted” under section 101(a)(13)(A) of the Act because it is unclear that a change in status can be characterized as an “entry” into the United States. Matter of Rosas, 22 I&N Dec. at 617–18; accord Matter of Chavez-Alvarez, 26 I&N Dec. at 276. However, we found that section 101(a)(13)(A) does not adequately address the intended scope of the term “admitted” as it is used at section 237(a)(2)(A)(iii) and that the
In reaching this conclusion, we relied on the language in the adjustment provisions and section 101(a)(13)(C), which states the circumstances under which a lawful permanent resident is regarded as seeking admission to the United States.18 Id. at 618–20. The Ninth Circuit has also held that adjustment of status is an admission in the context of the removability provision at section 237(a)(2)(A)(iii) of the Act. See Ocampo-Duran v. Ashcroft, 254 F.3d 1133.19
With regard to deportability for a conviction of a crime involving moral turpitude within 5 year after the date of “admission” under
As for which date of “admission” should be аpplied in calculating whether the conviction occurred within the relevant 5-year period, we concluded that the date comes from the admission “by virtue of which the alien was present in the United States” when the offense was committed. Matter of Alyazji, 25 I&N Dec. at 406. In so finding, we overruled, in part, Matter of Shanu, 23 I&N Dec. 754 (BIA 2005), vacated sub nom. Aremu v. Department of Homeland Security, 450 F.3d 578 (4th Cir. 2006), which held that the date resets each time an alien is admitted to the United States. We determined that Shanu focused too much on historical practice and that the grammatical structure of section 237(a)(2)(A)(i) of the Act had changed. Matter of Alyazji, 25 I&N Dec. at 404–05.
Specifically, we found that the phrase “within five years after the date of admission” was one specific time “after entry,” such that the current text had been narrowed to connote a single date tethered to a pertinent offense. Id. at 405. Consequently, we reasoned that the date the 5-year period begins depends on whether the alien was already admitted and had not left the country prior to adjustment before commission of the crime. Id. at 406–08. We therefore concluded that although the respondent adjusted status in 2006 and committed his offense in 2007, he was not deportable because he was “admitted” to the United States as a nonimmigrant in 2001 without leaving. Id. at 408.
In Matter of Alyazji, we found that there was one relevant date of admission for purposes of section 237(a)(2)(A)(i)(I) of the Act. However, we have not altered our holding in Matter of Rosas to the extent that we found that aliens who adjust status from within the United States after entering without inspection are “admitted” for purposes of section 237(a) of the Act. Cf. Matter of Chavez-Alvarez, 26 I&N Dec. at 278 (stating that if adjustment of status is not treated as an admission, aliens convicted of an aggravated felony would not be subject to removal because they could not be alternatively charged under section 212(a) of the Act since lawful permanent resident aliens are not seeking admission).
D. Other Eligibility Considerations
Generally, to qualify for a section 237(a)(1)(H) waiver, an alien must not only be inadmissible to the United States at the time of admission but must also demonstrate that the inadmissibility is linked to fraud or misrepresentation, whether willful or innocent. In addition, the applicant must be the spouse, parent, son, or daughter of a United States citizen or
We have determined that a respondent‘s adjustment of status can be an admission for purposes of the 237(a)(1)(H) waiver. Where an alien adjusts status from within the United States under section 245 of the Act, no immigrant visa is issued or required. However, the alien must be eligible to receivе an immigrant visa and have one immediately available at the time the adjustment application is filed. See
However, because the Immigration Judge found that a waiver under section 237(a)(1)(H) was unavailable to the respondent, he did not determine whether she was otherwise eligible for the waiver. He did not make factual and other findings necessary to determine the nature of the fraud or misrepresentation. For example, given the fact that the DHS withdrew its factual allegation that the respondent сommitted fraud in the course of obtaining her initial adjustment to permanent resident status, what is the effect of her concession to the charge that she was inadmissible at the time of her adjustment? Was the respondent‘s admission to the submission of a fraudulent lease intended to acknowledge fraud at the time of adjustment of status? Further proceedings with regard to this issue and the question whether the respondent is otherwise admissible may be required on remand.
We note in particular that since the DHS no longer opposes the respondent‘s position that she is statutorily eligible to seek to waive the consequences of fraud at the time of procuring adjustment of status, the Immigration Judge should require the DHS to clarify its allegations with regard to the respondent‘s removability on remand. If the Immigration Judge concludes that the record indicates that the respondent has committed fraud in the course of securing her adjustment of status, and that she is otherwise admissible, the Immigration Judge should render factual and other findings necessary to decide whether she merits relief in the exercise of discretion. Making a discretionary determination requires a balancing of the respondent‘s undesirability as a permanent resident with social and
We will therefore remand the record for the Immigration Judge to make the necessary findings and to determine whether the respondent‘s application for a waiver of inadmissibility should be granted in the exercise of discretion. Accordingly, the respondent‘s appeal will be sustained and the recоrd will be remanded.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
Matter of Bouchra AGOUR, Respondent
Interim Decision #3837
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided May 18, 2015
26 I&N Dec. 566
PAULEY, Board Member
I would affirm the Immigration Judge. As the majority opinion observes, it was settled law, both under Federal court of appeals decisions (including in the United States Court of Appeals for the Ninth Circuit, in which this case arises) and Board precedent, that the predecessor statute to
The majority seize upon the change in language from “entry” to “admission” in the introductory language in section 237(a)(1), which
I cannot agree. Whatever the policy arguments for such an expansion, the change in language from “entry” to “admission” appears to be merely a conforming amendment, not one intended by Congress to have the substantive effect found by the majority. See Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA“), Div. C of Pub. L. No. 104-208, § 308(f)(1)(M), 110 Stat. 3009-546, 3009-614, 3009-621 (inserting “admission” in place of “entry” in former section 241(а)(1)(H) under a section entitled, in part, “additional conforming amendments“); see also Matter of Quilantan, 25 I&N Dec. 285 (BIA 2010) (similarly rejecting a claim that changes wrought by the IIRIRA were intended to, or had the effect of, altering the Board‘s longstanding view that “admission” required only procedural, not substantive, regularity).
The majority‘s reading of the language in section 237(a)(1)(H) permitting a fraud waiver “on the ground that [an alien was] inadmissible at the time of admission” is supportable only if the phrase “the time of admission” is construed to include adjustment of status. We have determined that there are instances where not deeming adjustment of status to be an admission leads to absurd or bizarre consequences, and we have accordingly found an adjustment of status to be such. E.g., Matter of Chavez-Alvarez, 26 I&N Dec. 274 (BIA 2014). But there is clearly no absurdity that results from giving the definition of “admission” its plain and natural meaning (that is, requiring an entry after inspection) if section 237(a)(1)(H) is still interpreted to permit a fraud waiver only for fraud committed at the timе of entry rather than adjustment of status. Such a limitation was indeed the law under Matter of Connelly and like cases for many years and was never found to result in bizarre or absurd consequences or to produce results so inequitable as to violate due process.
It is true that the Board has sometimes treated an adjustment of status as an “admission.” But we have never declared that an adjustment of status is always to be so construed. And there is good reason not do so here because there is no indication that Congress intended to overturn our prior construction of the waiver, and that of the courts of appeals, as limited to fraud at the time of entry. Congress could easily have included a reference to adjustment of status in the definition of an “admission” in
Moreover, even assuming that the respondent‘s adjustment of status in 1988 following her admission as a nonimmigrant in 1986 was a further “admission,” the majority‘s holding is at odds with Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011). In that decision, we construed the language in section 237(a)(2)(A)(i) of the Act, relating to crimes of moral turpitude committed within 5 years after “the date of admission,” to refer to only one date, namely the date pursuant to which the alien was in the United States. The language in section 237(a)(1)(H) is comparable, referring to waivers of certain grounds of inadmissibility for aliens who “were inadmissible at the time of admission.” The majority‘s decision fails to explain, in light of Alyazji, why it is appropriate to treat this language as encompassing multiple dates of admission where, prior to her adjustment of status, the respondent was already admitted and remained in the country pursuant thereto.2 I therefore respectfully dissent.
Notes
The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at thе 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 . . . who—
(i)(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) which were a direct result of that fraud or misrepresentation.
(continued . . .) (continued . . .)(A) The terms “admission” and “admitted” mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.
(B) An alien who is paroled under section 212(d)(5) or permitted to land temporarily as an alien crewman shall not be considered to have been admitted.
(C) An alien lawfully admitted for permanent residence in the United States shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien—
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after having departed the United States,
(iv) has departed from the United States while under legal process seeking removal of the alien from the United States, including removal proceedings under this Act and extradition proceedings,
(v) has committed an offense identified in section 212(a)(2), unless since such offense the alien has been granted relief under section 212(h) or 240A(a), or
(vi) is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer.
Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General, be deported who—
(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry . . . .
Any alien who—
(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.