In re Lumen Berina TIJAM, Respondent
File 41 236 021 - Los Angeles
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided December 10, 1998
Interim Decision #3372
(2) The Board of Immigration Appeals declines to follow the policy set forth by the Commissioner of the Immigration and Naturalization Service in Matter of Alonzo, 17 I&N Dec. 292 (Comm‘r 1979), that the underlying fraud or misrepresentation for which the alien seeks a waiver should be disregarded.
Charles M. Miller, Esquire, Studio City, California, for respondent
A. Ashley Gambourian, Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, GUENDELSBERGER, JONES, GRANT, and SCIALABBA, Board Members, Concurring and Dissenting Opinions: VILLAGELIU, Board Member; ROSENBERG, Board Member.
GUENDELSBERGER, Board Member:
In a decision dated August 18, 1995, an Immigration Judge found the respondent deportable, denied her a waiver of deportability under section 241(a)(1)(H) of the Immigration and Nationality Act,
I. ISSUES ON APPEAL
The respondent conceded deportability on all the charges against her, including a charge of fraud. She claims, however, that the fraud was based on an innocent misrepresentation. On appeal the respondent has challenged the Immigration Judge‘s findings that she did not merit a section 241(a)(1)(H) waiver in the exercise of discretion and that she was statutorily ineligible for suspension of deportation and voluntary departure. In addition, she has filed a motion to reopen the proceedings and remand the record to the Immigration Judge to allow her to apply for adjustment of status pursuant to section 245 of the Act,
Addressing the respondent‘s request for a waiver under section 241(a)(1)(H) of the Act, we find it appropriate to remand the record to the Immigration Judge for further proceedings. Based on the recent decision from the United States Supreme Court in INS v. Yueh-Shaio Yang, 519 U.S. 26, 117 S. Ct. 350 (1996), we find it appropriate to revisit the issue of the relevant factors to consider in exercising discretion in section 241(a)(1)(H) cases. Specifically, for the reasons set forth below, we decline to limit the factors we may consider in the exercise of discretion, and therefore, we decline to follow the holding in Matter of Alonzo, 17 I&N Dec. 292 (Comm‘r 1979). In regard to the other forms of relief requested by the respondent, we find that upon remand to the Immigration Judge the respondent may pursue any relief available to her.
II. WAIVER OF DEPORTABILITY PURSUANT TO SECTION 241(a)(1)(H)
A. Factual Background
The record reveals that the respondent, a 43-year-old native and citizen of the Philippines, entered the United States as a lawful permanent resident on March 14, 1987, with an immigrant visa issued to her as the unmarried daughter of a United States citizen (her now deceased father). On December 23, 1989, the respondent visited the Philippines and was married in a religious ceremony.
At an interview conducted on September 15, 1993, as part of the respondent‘s application for naturalization, the respondent, under oath, informed the immigration examiner that she did not include her two eldest children on her visa application because they were born out of wedlock and she did not want the Immigration and Naturalization Service to investigate her. She also told the immigration examiner that she had only one marriage which occurred in 1989. The immigration examiner confronted the respondent with a marriage contract dated January 9, 1982, which indicated that the respondent and her husband were married in a civil ceremony on that date. The immigration examiner also stated that the Service found birth certificates for the respondent‘s eldest children, which indicated that they were legitimate. The respondent had submitted birth certificates for these children, which stated that they were illegitimate. According to the transcript of the naturalization interview contained in the record, the respondent failed to provide the immigration examiner with an explanation why she concealed her first marriage. On September 17, 1993, the respondent withdrew her naturalization application.2
On November 3, 1994, the respondent was served with an Order to Show Cause and Notice of Hearing (Form I-221), charging her with deportability. At her deportation hearing held on August 16 and 18, 1995, the respondent, her nursing supervisor, and an expert witness in the area of clinical social work testified on the respondent‘s behalf. Regarding the 1982 marriage contract, the respondent testified that she did, in fact, have a civil marriage ceremony on January 9, 1982. She reiterated, however, that she did not think that the first civil marriage of 1982 was valid because she and her husband asked the person who performed the civil ceremony not to record the marriage. She stated that she and her husband decided to get a marriage contract without actually getting married so that her Saudi Arabian employers would not fire her when they found out that she was pregnant. She again stated that she did not include her two eldest children on her immigrant visa application because she believed that they were ille-
Both the expert witness and the respondent testified that the respondent‘s United States citizen son, who is 10 years old, suffers from a learning disability. They both stated that it would be in the best interest of the child to remain in the United States, where special programs are available to him to deal with his disability. The respondent also stated that she did not think that her son could receive special assistance for his disability in the Philippines. She also testified that she was concerned about her children‘s health in the Philippines, especially since they would no longer have access to her health care coverage, and because her son has adverse reactions to mosquito bites.
Both the respondent and the expert witness testified to the fact that the respondent‘s United States citizen mother suffers from a blood disorder called polycythemia. The respondent testified that, as a registered nurse, she is in a position to monitor her mother‘s blood and take her to the doctor. She stated that although she and her mother live with her other siblings, she cares for her mother because of her medical background.
The respondent‘s nursing supervisor testified that the respondent had been a clinical nurse at Holy Cross Medical Center since 1987. She stated that the respondent was in charge of a post-intensive care unit for trauma and cardiopulmonary patients and, at times, supervised other nurses in her unit. The supervisor testified that the respondent did “excellent work,” was “trustworthy,” and was an “industrious person.”
The record reveals that the respondent has been employed as a registered nurse at Holy Cross Medical Center since May 4, 1987, and at the All Saints Health Care Center since May 19, 1993. She makes a good salary and is able to contribute financially to her mother‘s care and to the rent of the condominium that she shares with her siblings and her mother. She also sends money to her husband and children in the Philippines. She has consistently paid her income taxes and has no criminal violations. The respondent also volunteers at her local church. According to the record before us, to date, the respondent has not filed a visa petition for her husband or her two children in the Philippines.
The respondent claims on appeal that the immigration examiner coerced her into withdrawing her naturalization application by threatening to deport her. She contends that he would not allow her to provide an explanation for the existence of the 1982 marriage contract. The respondent asserts that she and her husband never intended to record the civil marriage. In fact, she claims that they paid the preparer of the marriage contract extra money to prepare the contract, but to not file it. She states that they had the contract prepared because she was pregnant, and she feared that her Saudi
B. The Exercise of Discretion
In order to demonstrate eligibility for relief under section 241(a)(1)(H) of the Act, the respondent must establish that she is statutorily eligible and that she merits relief in the exercise of discretion.3 The Immigration Judge found, and we agree, that the respondent is statutorily eligible for a waiver. Thus, the only issue is whether the Immigration Judge properly denied the respondent‘s request for relief in the exercise of discretion.
The question whether to exercise discretion favorably necessitates a balancing of an alien‘s undesirability as a permanent resident with the social and humane considerations present to determine whether a grant of relief is in the best interests of this country. 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;
The record before us presents a complicated set of facts in which the respondent has presented significant equities, but in which there also exist serious adverse factors. In the respondent‘s favor, we find that she has substantial family ties in the United States. She has been in the United States for more than 10 years and has been steadily employed since her entry. Because of her steady employment history, the respondent is able to provide financially for her husband and her two children in the Philippines. The respondent‘s mother is also in need of financial and medical support and care, to which the respondent contributes. One of the respondent‘s United States citizen children has a learning disability and may have difficulty adjusting to life in the Philippines. Moreover, both of the respondent‘s United States citizen children have spent the formative years of their lives in the United States. Thus, the respondent‘s deportation may have a significant impact upon her United States citizen children.
There are, however, serious adverse factors in the record. The respondent concealed in her immigrant visa application that she was married and entered the United States as the unmarried daughter of a United States citizen, despite having been married in a civil ceremony on January 9, 1982. She also failed to disclose that she had two children in the Philippines when she filed her application for an immigrant visa.
Of particular significance to us are the discrepant documents in the record. The respondent, under oath, both at her naturalization interview and at her deportation hearing, contended that her 1982 civil marriage was invalid, although there is what appears to be a valid marriage contract in the record. The respondent continued to make this assertion on appeal without presenting any evidence to support her assertion. In addition, the Service alleges that the birth certificates submitted by the respondent for her two children in the Philippines are fraudulent, as they state the children are illegitimate, whereas the Service found birth certificates for the children showing them as legitimate. It is unclear from the record, however, whether the respondent‘s birth certificates are, in fact, fraudulent.
The Immigration Judge explicitly found that the respondent “lied to the Immigration Officer during her naturalization interview.” Making false statements under oath during the naturalization process is an extremely serious adverse factor. United States citizenship is a uniquely significant status, and the integrity of the naturalization process is a matter of profound importance, both to present United States citizens and to aliens who hope to become citizens of this country, as well as to the Government.
We remain uncertain, after examining the record before us, whether the Immigration Judge made a finding that the respondent testified falsely during the course of the deportation hearing, and, if so, whether appropriate weight was afforded such a finding. Because of the importance of a clear ruling on the issue of “false testimony” during the course of the deportation proceeding as to the birth certificates and the 1982 marriage, we find it appropriate to remand the record to the Immigration Judge for a determination of the authenticity of the birth certificate submitted by the respondent for her two eldest children and a finding as to credibility of the respondent‘s explanations regarding these documents. Upon remand, the parties may present any additional evidence as is appropriate.
C. INS v. Yueh-Shaio Yang
Subsequent to the Immigration Judge‘s decision in this case, the United States Supreme Court issued a decision in INS v. Yueh-Shaio Yang, supra. In Yang, the Supreme Court addressed the issue of the exercise of discretion in section 241(a)(1)(H) waivers, specifically, which factors could be considered in making such a determination. On January 16, 1997, we requested the parties to submit supplemental briefs in the instant case, addressing the question of the exercise of discretion regarding the respondent‘s section 241(a)(1)(H) application in light of the recent Supreme Court decision in Yang. In regard to this general question, we asked that the parties also address what impact, if any, the Yang decision had on the Service‘s policy, as set forth in Matter of Alonzo, supra, of disregarding the underlying fraud or misrepresentation for which the respondent is deportable, i.e., the initial fraud, in making the waiver determination. Both parties responded to our request by filing supplemental briefs.
Based on the Supreme Court‘s decision in Yang, we find it appropriate to revisit the issue of the relevant factors to be considered in exercising discretion in section 241(a)(1)(H) cases. Specifically, we will address the issue of considering the underlying, or initial, fraud or misrepresentation for which
D. Matter of Alonzo: Considering the Initial Fraud
In determining whether to favorably exercise discretion on a waiver request, the Service‘s stated policy has been to disregard the underlying fraud or misrepresentation for which the respondent is seeking the waiver—the initial fraud. See Matter of Alonzo, supra.
The United States Court of Appeals for the Ninth Circuit, within whose jurisdiction this matter arises, had ruled in a number of decisions that misrepresentations “arising from” the initial fraud should not constitute an adverse factor against the respondent in making a section 241(a)(1)(H) discretionary determination. See Delmundo v. INS, 43 F.3d 436 (9th Cir. 1994); see also Braun v. INS, 992 F.2d 1016 (9th Cir. 1993); Hernandez-Robledo v. INS, supra.
In INS v. Yueh-Shaio Yang, supra, at 352, however, the United States Supreme Court held that the language of section 241(a)(1)(H) of the Act “imposes no limitations on the factors that the Attorney General (or her delegate . . . ) may consider in determining who, among the class of eligible aliens, should be granted relief.” The Court stated that it is “rational, and therefore lawful, . . . to distinguish aliens . . . who engage in a pattern of immigration fraud from aliens who commit a single, isolated act of misrepresentation.” Id. at 354. The Court also noted that while it is not required by the Act that the entry fraud or misrepresentation be disregarded in making the waiver determination, it may be an “abuse of discretion” to make an irrational departure from the past policy of disregarding the initial fraud, Id. at 353.
Based on the Supreme Court‘s decision in Yang, we find it appropriate to revisit the issue raised in Matter of Alonzo, supra. Although erroneously attributed to this Board on various occasions, Matter of Alonzo is a decision by the Commissioner of the Immigration and Naturalization Service, in which the Commissioner held that in making the discretionary determination under section 212(i) of the Act,
We are not, however, bound by decisions of the Commissioner. See Matter of Fueyo, 20 I&N Dec. 84, 87 n.3 (BIA 1989); see also Matter of Udagawa, 14 I&N Dec. 578, 582 (BIA 1974). Compare
In her supplemental brief on appeal, the respondent argues that because the policy outlined in Matter of Alonzo was in effect when the respondent filed her application for a waiver under section 241(a)(1)(H) of the Act, a departure from the Alonzo holding would be “irrational and an abuse of discretion.” The respondent cites to the United States Supreme Court‘s language in INS v. Yueh-Shaio Yang, supra, to support her contention.5
We decline to limit the factors we may consider in the exercise of discretion. As noted by the Supreme Court in Yang, “[S]atisfaction of the requirements under § 241(a)(1)(H), including the requirement that the alien have been ‘otherwise admissible,’ establishes only the alien‘s eligibility for the waiver. Such eligibility in no way limits the considerations that may guide the Attorney General [or her delegate] in exercising her discretion to determine who, among those eligible, will be accorded grace.” INS v. Yueh-Shaio Yang, 117 S. Ct. at 353. We recognize that Congress’ intent in enact-
The respondent argues on appeal that if we fail to follow the policy outlined in Matter of Alonzo, it would be an abuse of discretion because the Alonzo ruling was in effect when she filed her application for a waiver under section 241(a)(1)(H) of the Act. Our “departure” from the Alonzo ruling is neither irrational nor an abuse of discretion. We have articulated a rational basis for deciding to “withdraw” from the Alonzo ruling, which, in fact, was never a ruling that this Board adopted as a precedent. See
III. CONCLUSION
Upon remand, the parties will be provided an opportunity to augment the record, and the Immigration Judge will enter a new decision, considering the equities in the respondent‘s favor as well as all of the adverse factors, including the respondent‘s initial fraud, in making a discretionary determination. We note that subsequent to filing the instant appeal, the respondent submitted a motion to reopen the proceedings and remand the record to the Immigration Judge to allow her to apply for adjustment of status pursuant to section 245 of the Act, based upon an approved employ-
ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion.
CONCURRING AND DISSENTING OPINION: Gustavo D. Villageliu, Board Member
I respectfully concur in part and dissent in part.
While I agree with most of the majority‘s reasoning, I also agree with the concurring and dissenting opinion of Board Member Rosenberg that the focus of the discretionary determination should emphasize family ties and take into account the fact that the waiver is meant to excuse fraud or willful misrepresentation at entry.
We should not indiscriminately apply the test prescribed in Matter of Marin, 16 I&N Dec. 591 (BIA 1978), for post-entry misbehavior by resident aliens to a situation where the adverse factor being considered is a misrepresentation at entry. The requirement in section 241(a)(1)(H) of the Act,
CONCURRING AND DISSENTING OPINION: Lory Diana Rosenberg, Board Member
I respectfully concur in part and dissent in part.
The issues before us do not involve merely the effect of the Supreme Court‘s ruling in INS v. Yueh-Shaio Yang, 519 U.S. 26, 117 S. Ct. 350 (1996), or, whether the Immigration Judge‘s exercise of discretion over the respondent‘s waiver application under section 241(a)(1)(H) of the Immigration and Nationality Act,
This raises two fundamental questions: First, what constitutes fraud or willful misrepresentation, or false testimony, in the context of deportability and excludability? And, second, if a misrepresentation did occur, what weight should it be given as an adverse factor and how does it effect our cumulative evaluation of the many factors that must be considered in adjudicating the respondent‘s request for a discretionary waiver under section 241(a)(1)(H) of the Act?
While I agree with the majority that the decision of the Immigration Judge is wanting and impedes a proper review of his denial of the respondent‘s request for a waiver under section 241(a)(1)(H) of the Act. I also find his conclusion that the respondent engaged in fraud or willful misrepresentation under section 212(a)(6)(C)(i) of the Act,
I. DEPORTABILITY ON GROUNDS OF BEING EXCLUDABLE AT ENTRY FOR FRAUD OR WILLFUL MISREPRESENTATION OF A MATERIAL FACT
The evidence reflects that in November 1986, the respondent filed an application for an immigrant visa indicating that she was not married and omitting any mention that she had two children (whom she believed to be illegitimate because she did not consider herself to have been married when they were born). She immigrated to the United States in March 1987 and married her husband in a full civil and religious ceremony in 1989. Subsequently, in 1992, the respondent filed an application for naturalization, indicating that she was married, and revealing that she had two children born in the Philippines and two children born in the United States.
The respondent reported that she was told she had to withdraw the application or be deported. When she complied, her permanent resident alien card was returned to her. She then obtained counsel, filed a second naturalization application, and was interviewed again. While that application was pending, she was served with an Order to Show Cause and Notice of Hearing (Form I-221), which alleged that she had committed fraud or willful misrepresentation of a material fact, that she lacked a valid immigrant visa, and that she had no valid labor certification. She was charged with being deportable on the basis that she was excludable at entry on those grounds. At a deportation hearing before the Immigration Judge, she reiterated the same explanation that she had provided to the naturalization examiner pertaining to her good faith belief that the “marriage contract” had not been recorded, and that even if recorded, it did not constitute a valid marriage under the laws of the Philippines. She elaborated on her explanation, stating further that the contract was obtained after she had become pregnant while unmarried, in order to give the appearance that she was married and to preserve her position in Saudi Arabia where an unwed pregnancy would not be tolerated.
In my view, the first matter to be resolved is whether the respondent has been properly found to be deportable on the basis of fraud or a willful misrepresentation that renders her excludable at entry as charged.1 As the respondent is deportable on the two additional underlying grounds of inadmissibility on which the Immigration and Naturalization Service bases its “excludable at entry” charge, it may appear that whether or not the respondent was properly determined to be excludable at entry under section
A. Absence of Clear, Unequivocal, and Convincing Evidence of Fraud or Willful Misrepresentation
The respondent did not concede being deportable on the ground that she was excludable at entry on the fraud or willful misrepresentation grounds contained in section 212(a)(6)(C)(i) of the Act.2 Instead, she was found to be deportable by the Immigration Judge on each of the three grounds underlying the charge that she was excludable at entry.
The transcript reflects quite clearly that on April 18, 1995, the respondent‘s attorney stated on her behalf that she (1) admitted to having entered the United States in 1987 as the unmarried son or daughter of a United States citizen; (2) admitted to having been married on the date she entered the United States, and therefore, to being ineligible to receive a visa; (3) denied that she was asked whether she was married or unmarried by the consular officer who issued the immigrant visa; and (4) denied having come to the United States to perform skilled or unskilled labor without a valid labor certification. She also denied each of the three grounds of inadmissibility referred to in the Order to Show Cause, on which the Service relied to establish deportability based on excludability at entry.
The Service acts as the prosecutor in deportation and removal cases, and has authority to determine the grounds of deportability that are charged, to issue the former Order To Show Cause or the current Notice to Appear (Form I-862) and serve it on the named respondent, and finally, to file the charging document with the Immigration Court. See
In light of the respondent‘s denial that she was asked by the consular officer whether or not she was married, as well as the respondent‘s denial of the charge that she was excludable at entry for having procured a visa or admission to the United States by fraud or willful misrepresentation of a material fact, the trial attorney representing the Service questioned the respondent as follows:
Q. Why did you not tell the consular officer that you were married?
A. In the first place, they didn‘t ask me anything about marital status, And in the second (indiscernible) that I should present while I worked in Saudi Arabia.
Q. Do you know if you told the consular authorities that you were married that you would have been denied a visa?
A. They didn‘t tell me anything about that.
Q. That wasn‘t the question ma‘am. The question was did you know that if you withheld the fact of your marriage, that you would not be given a visa?
A. Yes.
(Emphasis added.) As I believe the majority has erred in glossing over this aspect of the proceedings, I shall spell out the state of the record before us in relation to the governing standard requiring that deportability be established by evidence that is “clear, unequivocal, and convincing.” Woodby v. INS, supra; see also Matter of Bosuego, 17 I&N Dec. 125 (BIA 1979).
First, although the respondent admitted having entered on an immigrant visa assigned to her as the unmarried daughter of a United States citizen, she denied having committed fraud or a willful misrepresentation of a material fact. Second, in the above-quoted colloquy with the Service attorney, the respondent denied having stated affirmatively during her immigrant visa interview either that she was married or unmarried; she attempted to explain something about the circumstances under which she got “married,” but this explanation was cut off as “indiscernible” during the transcription process. Third, the respondent stated she was not informed that if she told the consular authorities that she was married her visa would have been denied. And fourth, she answered “yes” to the rephrased question posed by the trial attorney for the Service, inquiring not whether she knew that by providing
The “indiscernible” portion of the respondent‘s response in the course of this colloquy, and her affirmative “yes” response to the question whether she knew she would be denied a visa if she did not reveal her marriage, leaves us with a muddled record in which the respondent‘s testimony is equivocal at best. The supposed evidence of deportability (on the ground of excludability at entry for fraud or willful misrepresentation) based on such interrupted and abbreviated testimony is not clear, much less convincing, Cf, Woodby v. INS, supra;
B. Elements of Fraud or Willful Misrepresentation of a Material Fact
Fraud or willful misrepresentation of a material fact, the statutory section on which the charge that the respondent was excludable at entry is based, was enacted by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, replacing former section 212(a)(19) of the Act,
Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry into the United States or other benefit provided under this Act is excludable.
Section 212(a)(6)(C)(i) of the Act,
Fraud or a willful misrepresentation is not limited to “false testimony,” which requires that the actor have made a false statement under oath with the subjective intent of obtaining an immigration benefit.4 Kungys v. United States, 485 U.S. 759, 780 (1988); see also Bernal v. INS, 154 F.3d 1020 (9th Cir. 1998) (holding that an applicant‘s false oral statements made under oath in a question-and-answer statement before a Service officer in connection with any stage of the processing of a visa or in a naturalization examination constitutes “false testimony” within the meaning of
The respondent‘s first interaction with an official of the United States Government involved the consideration of her application for an immigrant visa. The respondent has testified consistently that at the time she initially provided the information that she was not married on her visa application, she did not believe she was legally married, as she understood the marriage contract she entered into in 1982 to be lacking in regularity and therefore ineffective under the law of the Philippines. She also has stated consistently that she was not asked whether or not she was married or unmarried, and she did not testify under oath that she was married or
Both Board precedent and Ninth Circuit law require that a statement constituting a misrepresentation must be made with knowledge of its falsity for it to be considered “willful.” See Forbes v. INS, 48 F.3d 439, 432 (9th Cir. 1995); Matter of Healy and Goodchild, 17 I&N Dec. 22 (BIA 1979) (recognizing that the alien must know that the statements he or she is making are false); see also Espinoza-Espinoza v. INS, 554 F.2d 921, 925 (9th Cir. 1977) (requiring that the statement must be made with knowledge of its falsity). Although a specific intent to deceive is not necessary, an accidental statement or one that is the product of honest mistake is not considered to be a “willful” misrepresentation. See Sullivan, supra (citing Foreign Affairs Manual, section 40.63, note 5.1). Moreover, a misrepresentation refers to some degree of affirmative conduct. Silence is not a misrepresentation, and does not “shut off a line of inquiry.” Matter of D-L- & A-M-, 20 I&N Dec. 409 (BIA 1991); Matter of G-, 6 I&N Dec. 9 (BIA 1953).5
The concept of “materiality” presents a mixed question of law and fact, United States v. Gaudin, 515 U.S. 506, 521 (1995); Kungys v. United States, supra, at 770 (addressing the specific intent to obtain an immigration or naturalization benefit, and whether misrepresentation or concealment was predictably capable of affecting, or had a natural tendency to affect, the official decision under section 340 of the Act,
The respondent admits to having participated in obtaining a marriage contract that was pre-dated and not based on what she believed was a valid license, not entered into before witnesses as required, not signed by the necessary witnesses, and, to the best of the respondent‘s understanding, not registered at the time it was obtained. Nonetheless, while neither the respondent‘s testimony nor the marriage contract obtained in 1982 constitutes clear, unequivocal, and convincing evidence of fraud or a willful misrepresentation, the evidence of the marriage contract‘s eventually having been recorded may establish that the respondent was, in fact, married prior to her immigrant visa interview and her entry to the United States. It cannot be disputed that the fact of the respondent‘s having been married, if indeed she was married under the law of the Philippines, was material to her eligibility for an immigrant visa at the time she presented her immigrant visa application to the consular officer. Matter of Anabo, 18 I&N Dec. 87 (BIA 1981) (finding an affirmative misrepresentation made by a visa applicant who claims to be single, when he actually is married, to be material).
Legally material and factually erroneous though the respondent‘s representation that she was not married may prove to be, however, I do not believe the record supports the conclusion that the respondent made a willful misrepresentation. The respondent‘s consistent testimony, which is uncontroverted and plausible in light of the documentary evidence, is that she did not believe the marriage contract she obtained constituted a valid, legal marriage. Until she was confronted at her first naturalization interview, she was unaware that the marriage contract actually had been recorded.
Furthermore, although the respondent testified that she now accepts that she is considered to have been married in 1982 as the result of the marriage contract, there is no evidence that the respondent‘s representation on her immigrant visa application that she was not married was made with
C. Erroneous Finding That the Respondent “Lied” in Relation to 212(a)(6)(C)(i) of the Act
The Immigration Judge not only found that the respondent was deportable due to being excludable at entry under section 212(a)(6)(C)(i) of the Act, but found that the respondent “lied.” In order to uphold these findings, we would have to reject the respondent‘s consistent testimony explaining her lack of knowledge and intent, without any affirmative evidence that the respondent knowingly engaged in a willful misrepresentation. We would have to draw the inference that she knew her 1982 marriage to be lawful and stated she was not married on her immigrant visa application knowing that representation to be false. We not only would have to reject her affirmative testimony that she understood the 1982 marriage contract into which she entered not to have been “registered,” but would have to overlook the fact that, as shown to the respondent at her naturalization interview, the document still does not appear to be properly executed and lacks the requisite witness signatures.
Such unsupported adverse inferences are simply unreasonable. In Matter of Bosuego, supra, at 128, the Board held that where the respondent had applied for a nonimmigrant visa, but failed to disclose that she was a college graduate with a sister residing in the United States, “the likelihood that knowledge of those facts would have led to a finding that the respondent was inadmissible” was “undeterminable from the record before us.” Citing Woodby v. INS, supra, we stated that “[t]he element of materiality is a fact crucial to a finding of deportability” on fraud or misrepresentation grounds, Matter of Bosuego, supra, at 131. Ah, one might counter, but in the instant case, the true facts do seem to indicate that the respondent was married, and therefore, by representing that she was not married and failing to mention the names of her first two children, she shut off a line of inquiry that might have resulted in her being excluded.
However, this is not consistent with Bosuego, in which the Board found that the record did not contain any reference to other pertinent factors that might have influenced the consular officer‘s decision. Similarly, in the instant case, the Service failed to develop any evidence concerning whether or not the marriage contract was either witnessed or recorded in 1982, at the time the respondent applied for her immigrant visa, or concerning the way
The Immigration Judge‘s finding that the respondent lied on her immigrant visa application is unsupported on the record and has been refuted by the respondent. In quoting the respondent‘s supposed “lie,” the Immigration Judge relies on the respondent‘s testimony that she was married one time in a religious ceremony in a church to her husband, and her repeated disclaimer that she was not previously married in a civil ceremony. The respondent‘s statement is only a “lie,” however, if she made it willfully, believing it to be a false statement, Forbes v. INS, supra. Clearly, as the respondent has insisted over a 10-year period from 1987 to the present—in the context of a visa application, a visa interview, two naturalization applications, two naturalization interviews, and one deportation hearing—she did not believe that her act of obtaining a “marriage contract” in 1982 created a valid marriage. Consequently, in her mind and to her understanding such a declaration was not false.
The Immigration Judge‘s conclusion that the Service had established deportability as to the respondent‘s being excludable at entry because of fraud or a willful misrepresentation of a material fact is erroneous, and does not constitute a valid decision. See section 242(b)(4) of the Act.6 Similarly, as the respondent‘s subsequent statements, including oral testimony under oath that she provided in either the naturalization interviews or at her deportation proceeding, restated her honest belief that, until confronted at the first naturalization interview, she believed that she was not married, there is
III. CONSIDERATION OF A WAIVER UNDER SECTION 241(a)(1)(H)OF THE ACT
The intent of Congress in enacting former section 241(f),
My conclusion that the record cannot support the finding that the respondent engaged in fraud or willful misrepresentation may appear to present a rather confounding situation, as the respondent is seeking a waiver under section 241(a)(1)(H) of the Act, which presupposes excludability under section 212(a)(6)(C)(i) of the Act. However, as discussed below, according to both the express language of the statute and administrative precedent, the waiver is available to overcome not only willful, but innocent, misrepresentations. In addition, it should be obvious that if there was no “initial fraud,” the scope of the Attorney General‘s discretion in adjudicating eligibility for such a discretionary waiver must take into account the nature of any affirmative misrepresentation, as well as any silence not amounting to a misrepresentation.
A. Innocent Misrepresentations
Eligibility for a waiver under section 241(a)(1)(H) of the Act does not depend on the respondent having made a fraudulent or willful misrepresentation, In Matter of Ideis, 14 I&N Dec. 701 (BIA 1974), the Board held that despite the fact the respondent committed no fraud in connection with her admission for permanent residence as the unmarried daughter of a lawful
We concluded that although the record indicated that the respondent did not commit fraud, it was clear that she made an innocent misrepresentation, which was “sufficient to bring the respondent within the terms of section 241(f).” Matter of Ideis, supra, at 703; see Matter of Louie, 14 I&N Dec. 421 (BIA 1973) (finding that despite the absence of fraud, entry as a preference immigrant in reliance on the erroneous belief a sibling was a citizen is covered by section 241(f) of the Act, which encompasses innocent misrepresentations); Matter of Torbergsen, 13 I&N Dec. 432 (BIA 1969) (finding a section 241(f) waiver available, notwithstanding the fact that there was no fraud and the respondent was not in possession of a labor certification at time of entry); see also Castillo-Godoy v. Rosenberg, 415 F.2d 1266 (9th Cir. 1969); Matter of Lim, 13 I&N Dec. 169 (BIA 1969) (reversing a prior decision that had concluded, “anomalous as it might seem, the bounty of section 241(f) extended only to those guilty of fraud, and not to the innocent,” in favor of a more liberal construction).
B. Effect of the Supreme Court‘s Decision in INS v. Yueh-Shaio Yang
I agree with the majority that after INS v. Yueh-Shaio Yang, supra, it is clear that the Attorney General may consider a broad panoply of factors in determining whether a waiver under section 241(a)(1)(H) of the Act is warranted as a matter of discretion. I emphasize, however, as did the Supreme Court, that were the Attorney General to treat the fact of the initial fraud or willful misrepresentation as tipping the discretionary equation to require denial, such a result might constitute an abuse of discretion contrary to the express terms of the statute, 117 S. Ct. at 353.
Moreover, I strongly disagree that the proper discretionary standard involves a balancing of “an alien‘s undesirability as a permanent resident with the social and humane considerations” present in the case, in order to determine “whether a grant of relief is in the best interests of this country.” Matter of Tijam, Interim Decision 3372, at 6 (BIA 1998). Such language, casually imported by the majority from the discretionary standard we articulated in Matter of Marin, 16 I&N Dec. 591 (BIA 1978) (“Marin test“), involving a discretionary waiver of excludability under former section 212(c) of the Act,
By contrast, as uniformly interpreted by the Supreme Court and the Board alike, the statutory provision for a waiver under section 241(a)(1)(H) of the Act focuses primarily on maintaining families that have come into being after the respondent‘s willful or innocent violation of the Act. As opposed to focusing principally on after-acquired equities related to family ties and family unification, which, undisputedly, is the essential underlying purpose of a waiver under section 241(a)(1)(H) of the Act, the Marin test takes into account an alien‘s anti-social criminal activity, and any rehabilitation that he or she may have established, in addition to other factors such as length of residence in the United States, family ties, and any hardship to the respondent or family members that might result from deportation.
In the context of adjudicating a waiver for relief under section 212(h) or former section 212(c) of the Act, it is the fact of the anti-social conduct or criminal activity, such as prostitution or an actual criminal conviction in violation of the Act, that warrants assessing the respondent‘s “undesirability as a permanent resident,” and determining whether granting discretionary relief is “in the best interests of this country.”7 No such limitation should exist with respect to a waiver adjudication under section 241(a)(1)(H) of the Act. This waiver is premised upon the acceptance of an entry having been made on the basis of an invalid immigrant visa that could have been the result of nothing more than an innocent misrepresentation. As George Orwell said in his novel, Animal Farm, all animals are not equal, and similarly, all immigration violations are not equal, The Marin test is not, and should not be imposed as, the ultimate unified basis for discretionary adjudications.
A denial of a waiver is reviewed for an abuse of discretion, See Hernandez-Robledo v. INS, 777 F.2d 536 (9th Cir. 1985); Batoon v. INS, 707 F.2d 399, 401 (9th Cir. 1983). What the Yang decision clarifies is that, although the initial fraud may be waived, it still may be considered as one of several factors that the Attorney General takes into account in determining whether or not to grant a waiver of a misrepresentation that resulted in issuance of an immigrant visa. No more, no less, Cf. Delmundo v. INS, 43 F.3d 436 (9th Cir. 1994) (finding that although subsequent fraud may be an extension of an initial fraud, which may be excused, perpetuation of that fraud on the Immigration Court may be considered as a factor in assessing
Thus, despite my general agreement with the notion that any fraud committed by a waiver applicant may be taken into account in balancing the favorable and adverse factors. I disagree with certain aspects of the majority decision related to the treatment of the respondent‘s waiver application. Specifically, in the instant case it is significant that the record contains no evidence that the respondent‘s misrepresentation was other than innocent, based on her honest but mistaken belief that she was not married because the marriage contract into which she had entered was not valid, even if recorded. Although the majority talks in terms of “concealment,” asserting that the respondent “concealed” that she was married and “failed to disclose” that she had two children, concealment really is not an applicable concept in the context of determining either fraud or willful misrepresentation, or false testimony. See supra note 5. Moreover, just as the Supreme Court has construed the term “concealment” in the context of the naturalization provisions, “concealment,” no less than the misrepresentation, must be shown to have been willful. See Fedorenko v. United States, 449 U.S. 490, 508 n.28 (1981); Costello v. United States, 365 U.S. 265, 272 n.3 (1961). A reasonable evaluation of the favorable and adverse factors presented relevant to the respondent‘s eligibility for a discretionary waiver must take into account that there is no evidence of fraud or willful misrepresentation.
Furthermore, in Casem v. INS, 8 F.3d 700 (9th Cir. 1993), the Ninth Circuit held that hardship to children was a central issue in the adjudication of the waiver. The Ninth Circuit found that in a “statutory provision similar to section 1251(a)(1)(H), . . . [the Attorney General is allowed] at her discretion to suspend a deportation order if, among other things, ‘deportation would . . . result in extreme hardship to the alien or to his spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence . . . .‘” Id. at 703 (quoting section 244(a)(4) of the Act,
As the Ninth Circuit has emphasized, “Congressional intent was similar with regard to section 1251(a)(1)(H) . . . [which was] enacted . . . to prevent the break-up of families comprised in part of American citizens or lawful permanent residents. . . . Congress ‘was intent upon granting relief to limited classes of aliens whose fraud was of such a nature that it was more than counterbalanced by after-acquired family ties.‘” Casem v. INS, supra, at 703 (quoting Reid v. INS, supra, at 630). The Ninth Circuit explained, therefore, that “[a]lthough the statute does not set forth that factor for particular consideration . . . in making the epochal decision of whether to allow an alien to remain legally with her family . . . the BIA must consider hardship to the children of potential deportees along with all other relevant factors.” Id. The Ninth Circuit concluded that “[t]he inquiry into family ties, however, must not be limited to noting the benefits of living near one‘s immediate or extended family. The BIA also must examine the impact of ‘untying’ the family ties Congress sought to safeguard.” Id.
IV. CONCLUSION
On the record before us, I conclude that the respondent‘s misrepresentations have not been shown to be other than innocent ones. Not only must the innocence of these representations be taken into account on remand, but the weighing and balancing of favorable and adverse factors must be exercised, consistent with the purpose of the legislation underlying the repeated enactment of section 241(a)(1)(H) of the Act, which is maintaining families.
Notes
The provisions of this paragraph relating 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), 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 entry 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.
A waiver of deportation for fraud or misrepresentation granted under this subparagraph shall also operate to waive deportation based on the grounds of inadmissibility at entry directly resulting from such fraud or misrepresentation.
See section 601 of the Immigration Act of 1990, 104 Stat. at 5067, which recodified former section 212(a)(19) of the Act, as amended by section 6(a) of the Immigration Marriage Fraud Amendments of 1986, Pub. L. No. 99-639, 100 Stat. 3537, 3543-44 (adding the term “other benefit“); see also section 237(a)(1)(H) of the Act,In Alonzo the Commissioner relied on the fact that the version of section 212(i) then in effect did not include an extreme hardship requirement, thus distinguishing it from section 212(h), See Matter of Alonzo, supra, at 294. Notably, section 349 of the IIRIRA added an extreme hardship requirement to section 212(i), so this distinction no longer exists.
Our consideration of whether the respondent, at any point, provided false testimony is not only relevant to excludability, but to the exercise of discretion under section 241(a)(1)(H) of the Act, and to the respondent‘s eligibility for suspension of deportation and voluntary departure, which require a showing of “good moral character” as defined in section 101(f)(6) of the Act,Though the agency‘s discretion is unfettered at the outset, if it announces and follows—by rule or by settled course of adjudication—a general policy by which its exercise of discretion will be governed, an irrational departure from that policy (as opposed to an avowed alteration of it) could constitute action that must be overturned as “arbitrary, capricious, [or] an abuse of discretion” within the meaning of the Administrative Procedure Act,
INS v. Yueh-Shaio Yang, 117 S. Ct. at 353.
See also Kungys v. United States, supra, at 773 (distinguishing the “concealment or misrepresentation” clause of section 340(a) of the Act,