We consider whether an alien whose legal status as the spouse of a citizen is later terminated because the marriage was fraudulent is eligible for discretionary relief from removal. We conclude that she is. We grant the petition and remand to the Board of Immigration Appeals to determine whether petitioner Renerose Vasquez’s application for a fraud waiver should be denied in the exercise of discretion.
BACKGROUND
Renerose Vasquez 1 (Vasquez) is a 37-year-old native and citizen of the Philippines. She married Wilfredo Vasquez, a *1006 U.S. citizen, in the Philippines in January-1994. On February 3, 1995, Vasquez was admitted to the United States as a conditional permanent resident as the wife of a U.S. citizen.
A. Statutory Background
We refer to Vasquez as a conditional permanent resident because an alien admitted to the United States for permanent residence as a spouse of a U.S. citizen obtains that status only conditionally, pursuant to section 216 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1186a. 2 To remove the condition, the alien and her spouse must submit a joint petition to the Attorney General 3 within the 90-day period before the second anniversary of the alien’s admission as a permanent resident, stating, among other things, that the marriage was not entered into for immigration purposes. § 216(c)(1), (d)(1), (d)(2). The alien and her spouse must then appear together for an interview. If the Attorney General determines that the facts in the petition are true, including the representation that the marriage was bona fide, the condition is removed and the alien spouse remains a legal resident. § 216(c)(3), (d)(1).
There are three circumstances in which the Attorney General must terminate an alien’s conditional permanent resident status: First, if the Attorney General determines, before the second anniversary of admission, that the qualifying marriage is invalid as a basis for permanent resident status because it was entered into for immigration purposes, or has been judicially terminated, or a fee was paid for the filing of the petition for immediate relative status, then the Attorney General “shall terminate the permanent resident status of the alien ... involved as of the date of the determination.” § 216(b)(1). Second, if the alien and her spouse do not file a timely joint petition to remove the conditions on residence or do not appear for the required interview, then the Attorney General “shall terminate the permanent resident status of the alien as of the second anniversary of the alien’s lawful admission for permanent residence.” § 216(c)(2). Third, if the alien and her spouse file a petition at the proper time and appear for an interview but the Attorney General determines that the qualifying marriage was not “entered into in accordance with the laws of the place where the marriage took place,” has been judicially terminated, or was “entered into for the purpose of procuring an alien’s admission as an immigrant,” or a fee was paid for the filing of a petition for immediate relative status, § 216(d)(1)(A), then the Attorney General “shall terminate the permanent resident status of an alien spouse ... as of the date of the determination.” § 216(c)(3)(C).
Section 216(c)(4) allows the Attorney General to remove the conditions on residence for an alien who fails to meet the joint petition requirement. The alien must demonstrate that she meets one of three criteria, one of which is that “extreme hardship” would result if she were removed. § 216(c)(4)(A). 4
*1007 B. Factual Background
As required, Vasquez and Wilfredo Vasquez filed a joint petition to remove the conditions on residence and appeared for an interview on May 20, 1998, with the INS. Thenceforward, the case unwound in Byzantine fashion: It took seven years to reach a final agency conclusion, required the filing of several INS forms, triggered four hearings before immigration judges (IJs) reflecting seemingly contradictory arguments by each party, and resulted in seemingly contradictory rulings, by two different IJs.
First, at the INS interview on the joint petition, Wilfredo Vasquez signed an affidavit stating that Vasquez’s grandmother promised him $3000 (half of which he accepted, half of which he refused) to marry Vasquez for immigration purposes. Vasquez signed an affidavit stating that she knew she “did wrong” and that her grandmother “pa[id] Wilfredo Vasquez b[eeause] she’s trying to help us[because] that’s the one way.” The INS issued a written notice terminating Vasquez’s conditional resident status. The notice recounted Wilfredo Vasquez’s admission that the marriage was “entered into for the sole purpose of obtaining immigration benefits,” and cited
Matter of McKee,
17 I.
&
N. Dec. 332,
The INS then served Vasquez with a Notice to Appear, charging her with removability under INA § 237(a)(1)(A), 8 U.S.C. § 1227(a)(1)(A), as an alien inadmissible at the time of admission because she sought to procure admission by fraud. While removal proceedings were pending, Vasquez filed a second petition to remove the conditions on residence, this time seeking an extreme hardship waiver under § 216(c)(4)(A). After Vasquez appeared before an IJ and denied she had committed marriage fraud, the removal proceedings were continued to await the INS’s adjudication of Vasquez’s pending application for a waiver.
Vasquez divorced Wilfredo Vasquez on June 2, 2000, and married Frederick Villanueva, a U.S. citizen, on December 8, 2000. Vasquez and Villanueva had a son, Eren *1008 Villanueva, on September 10, 1999. Eren has “mild persistent asthma,” which has required his hospitalization at least twice. Villanueva filed an immediate relative petition on Vasquez’s behalf. To facilitate that petition, Vasquez filed a second request for waiver of the joint petition requirement, this time on the basis that her marriage to Wilfredo had been terminated but was entered into in good faith. Finally, in 2003 Vasquez supplemented her application for an extreme hardship waiver with documentation of hardship to her U.S. citizen husband and child.
C. Immigration Proceedings
1. Hearing of August 15, 2003
On December 9, 2002, the INS issued a written notice denying Vasquez’s application for an extreme hardship waiver. The notice stated, inter alia, that Vasquez was not statutorily eligible to apply for the waiver because she had met the joint petition requirement. Her petition had been denied on its merits, the INS ruled, for marriage fraud.
The removal proceedings were then renewed, and Vasquez appeared before a visiting immigration judge, IJ Smith, on August 15, 2003. Vasquez testified that her marriage to Wilfredo Vasquez was in good faith but she did not move in with him because she was afraid that his ex-wife — her aunt — would be jealous. IJ Smith held that the government had justified its decision to terminate Vasquez’s status by a preponderance of the evidence, because it had shown that “the marriage [to Wilfredo Vasquez] was entered into for the purpose of immigrating to the United States and no other basis.” Ruling that no extreme hardship waiver was available because the joint petition had been filed but denied, IJ Smith continued the proceedings so that Vasquez could seek a waiver under § 237(a)(1)(H) (the “fraud waiver”). The fraud waiver provision allows the Attorney General to waive removal for an alien who sought to procure admission by fraud and is the spouse or parent of a U.S. citizen.
2. Hearing of January 28, 2004
The DHS responded to this suggestion by filing an additional charge of removability against Vasquez on October 24, 2003: It now charged that she was removable not only for fraudulent admission but also, pursuant to § 237(a)(l)(D)(i), as an alien who was lawfully admitted for conditional permanent resident status but whose status was later terminated.
Vasquez appeared before IJ Yam on January 28, 2004. IJ Yam held that the fraud waiver did not apply to the additional charge filed against Vasquez. She therefore pretermitted Vasquez’s application for a fraud waiver and, in the alternative, denied the waiver “in the exercise of discretion.” Finding Vasquez ineligible for relief, the IJ ordered her removed to the Philippines.
3. BIA Appeal
Vasquez timely appealed the IJs’ orders to the Board of Immigration Appeals (BIA). The BIA addressed both IJ rulings in a single decision, affirming IJ Smith’s ruling that Vasquez was ineligible to apply for an extreme hardship waiver, IJ Yam’s ruling that the fraud waiver would not cover both grounds of removal, and, in the alternative, IJ Yam’s discretionary waiver denial. 5 Premised on these rulings, the BIA dismissed Vasquez’s appeal from the removal order.
*1009 ANALYSIS
Because the BIA conducted a de novo review and issued its own decision, our review is limited to the BIA’s decision except to the extent that the BIA expressly adopted the opinions of the IJs.
See Hosseini v. Gonzales,
A. Extreme Hardship Waiver
We begin our journey through this maze of a case by considering whether, as the BIA determined, Vasquez is ineligible to seek an extreme hardship waiver. We conclude that the BIA’s determination on this issue was correct.
The opportunity to apply for an extreme hardship waiver is available only to those who “fail[] to meet the [joint petition] requirements” to remove the conditions on residence. § 216(c)(4). Vasquez and her U.S. citizen spouse, Wilfredo Vasquez, timely filed a joint petition and appeared together for an interview. The BIA held that Wilfredo Vasquez’s admission during the interview that the marriage was for immigration purposes did not result in a withdrawal of the petition.
Compare Matter of Mendes,
20 I.
&
N. Dec. 833, 838,
Although the INS ruling is somewhat confusing, there is no indication in the record that Wilfredo Vasquez withdrew his signature from the petition, as opposed to making statements at the interview indicating that the marriage was fraudulent. The termination notice focused almost exclusively on marriage fraud; the 2002 INS denial of the extreme hardship waiver interpreted the termination as premised on marriage fraud; and the initial Notice to Appear charged Vasquez with removability under § 237(a)(1)(A), for procuring admission into the United States by fraud. Moreover, at the August 15, 2003, hearing before IJ Smith, everyone involved in the case — Vasquez, the government, and the IJ — treated the termination of status as resulting from an adjudication on the merits of the joint petition. After a lengthy hearing, IJ Smith held that the government had carried its burden of proving by a preponderance of the evidence that Vasquez had committed marriage fraud, thus justifying termination of her conditional legal status. Had the petition been withdrawn, the burden of proof would have been on Vasquez to demonstrate that she warranted a waiver under § 216(c)(4). See Mendes, 20 I. & N. Dec. at 838.
Vasquez argued for the first time in her opening brief before this court that rather than failing to establish the substantive requirements for a successful petition, she had failed to file the joint petition necessary to remove the conditions on residence. But Vasquez and her husband did file a joint petition and appeared for an interview, and, as noted, there is no indication that Wilfredo Vasquez at that interview expressly withdrew his signature from the petition. We therefore cannot disagree with the BIA that Vasquez was terminated for engaging in marriage fraud, not for failing to file a joint petition, and so is ineligible to apply for an extreme hardship waiver under § 216(c)(4).
*1010 B. Fraud Waiver
1. Eligibility
The next question we encounter as we proceed through this labyrinthine case is whether Vasquez is eligible for an entirely different form of immigration relief under § 237(a)(1)(H), available to aliens inadmissible on grounds of fraud.
6
The BIA held that she is not, because the fraud waiver would not eliminate the additional charge the DHS lodged against Vasquez midway in her removal proceedings — that she is removable as an alien lawfully admitted for conditional permanent resident status but whose status was later terminated. § 237(a)(1)(D)®. In support of its holding, the BIA cited
Matter of Gawaran,
20 I. & N. Dec. 938,
We begin with a brief discussion of the INA provisions that most directly concern us here, provisions that, unlike the ones discussed previously, apply beyond the marriage context. First, § 212 of the INA, 8 U.S.C. § 1182, describes classes of aliens ineligible for admission into the United States. In particular, § 212(a)(6)(C)® (the “fraud provision”) makes inadmissible “[a]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure ... a visa, other documentation, or admission into the United States or other benefit provided under this chapter.”
Section 237 of the INA describes classes of deportable aliens. Two of these categories are relevant here: First, § 237(a)(1)(A) makes deportable “[a]ny 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.” Second, § 237(a)(1)(D) provides in relevant part that “[a]ny alien with permanent resident status on a conditional basis ... who has had such status terminated ... is deportable.”
Finally, § 237(a)(1)(H) (the “fraud waiver”) allows the Attorney General to waive “[t]he 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 [the fraud provision]” for any alien who is the spouse, parent, or child of a U.S. citizen or permanent resident and who was “otherwise admissible” at the time of admission.
7
*1011
“ ‘[Otherwise admissible’ means not ex-cludable on some ground other than the entry fraud.”
Corona-Mendez v. Holder,
The question that concerns us here, then, is whether the fraud waiver applies to removal based on the termination of conditional permanent residence, where the reason the alien’s status was terminated was that the Attorney General found the qualifying marriage was “entered into for the purpose of procuring an alien’s admission as an immigrant.” § 216(d)(1)(A).
We note at the outset that the fraud waiver provision does not limit its coverage to the ground of removal contained in subparagraph 237(a)(1)(A)(mak-ing deportable aliens who were inadmissible at the time of admission). We so conclude for two reasons:
First, § 237(a)(1)(H) provides that “[t]he 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 [the fraud provision] ... may ... be waived .... ” (emphasis added). “[T]his paragraph” refers to § 237(a)(1), which sets out six grounds of removal under the heading “Inadmissible at time of entry or of adjustment of status or violates status.” If relief under the fraud waiver were limited to subparagraph 237(a)(l)(A)(the only provision that explicitly makes deportable aliens inadmissible at the time of admission), then Congress would not have used the plural form, “provisions,” and it likely would have specified the single subparagraph to which it was referring.
Second, in addition to referring to “provisions” in the plural, Congress used the words “relating to” — “provisions ...
relating to
the removal of aliens ... on the ground that they were inadmissible at the time of admission” on fraud grounds.
*1012
§ 237(a)(1)(H) (emphasis added). “The phrase ‘relating to,’ as defined by the Supreme Court, means ‘to stand in some relation to; to have bearing or concern; to pertain; refer; to bring into association with or connection with.’ ”
United States v. Sinerius,
With that background, the issue we must address becomes more focused: whether removal for termination of an alien’s status upon a finding of marriage fraud under subparagraph 237(a)(1)(D) relates to, or bears on, “the removal of aliens ... on the ground that they were inadmissible at the time of admission as aliens described in [the fraud provision],” as provided by § 237(a)(1)(H).
The BIA did not frame the pivotal question in this manner. Instead, in holding that the fraud waiver was not available to Vasquez, the BIA relied on Matter of Gawaran for the broad proposition that “a section 237(a)(1)(H) waiver for inadmissibility due to fraud or misrepresentation is unavailable to waive a separate charge of removability based on the termination of the alien’s conditional resident status.” The BIA read Gawaran too broadly, as that case, properly understood, does not apply to the circumstances of this case, for reasons we now explain. 8
We begin by looking closely at
Gawaran.
The petitioner in
Gawaran,
Josefina Gawaran, was married to a citizen of the Philippines. She later married a U.S. citizen but had never divorced her first husband. On the basis of the second, invalid marriage, she entered this country as a conditional permanent resident and soon gave birth to a child. A year after her arrival, her U.S. citizen husband filed to annul their marriage. The INS discovered Gawaran’s bigamous marriage and charged her as deportable because “ex-cludable by the law existing at the time of ... entry,” as an individual who entered without a valid immigrant visa or a valid labor certification.
As it turned out, Gawaran also failed to file a joint petition to remove the conditions of residence before the second anniversary of her admission. 9 As a result, the INS terminated her status and lodged an *1013 additional charge of deportability against her, stating that she “was deportable as an alien whose conditional permanent resident status was terminated because Gawaran did not file a petition to remove the conditional nature of her permanent resident status before ... the second anniversary of her admission for permanent residence.” Id. at 1334.
At the time of Gawaran’s case, the fraud waiver, then § 241(f), allowed the Attorney General to waive “[t]he provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure or have procured visas or other documentation ... by fraud or misrepresentation,” where the alien was the spouse, parent, or child of a U.S. citizen or permanent resident and was “otherwise admissible” at the time of entry. INA § 241(f), 8 U.S.C. § 1251(f) (1988). 10 In a precedential opinion, the BIA considered whether the fraud waiver, if granted, would waive both charges of deportability against Gawaran — that is, not only the charge that she was excludable at the time of entry because she entered with invalid documents but also the charge that she was deportable because her conditional permanent resident status had been terminated. Concluding that it would not, the BIA noted that “the Service did not allege any fraud or misrepresentation in connection with the [termination of status] charge, nor was proof of fraud or misrepresentation required in order to sustain the charge of deportability.” Gawaran, 20 I. & N. Dec. at 941.
On a petition for review, we agreed with the BIA. We observed that the fraud waiver at that time applied “to aliens who were ‘excludable upon entry.’ ”
Although the language of the pertinent statutory provisions has changed slightly since we decided Gawaran, none of those changes are material to the issue there decided, so the holding of Gawaran remains binding precedent. But this case presents altogether different circumstances from those we confronted in Gawaran — the very circumstances, indeed, expressly excepted by the BIA in its Gawaran opinion. 20 I. & N. Dec. at 941. Vasquez’s conditional permanent resident status was terminated not because she failed to file a joint petition but because the Attorney General determined that her marriage to Wilfredo Vasquez — which occurred before Vasquez left the Philip *1014 pines — was entered into for immigration purposes. Thus, unlike in Gaivaran, “the Service did ... allege ... fraud or misrepresentation in connection with [its termination of Vasquez’s status], [and] proof of fraud or misrepresentation [was] required in order to sustain the charge of deportability.” Id. Also, unlike the Attorney General’s determination that Gawaran had failed to file a petition at the proper time, the determination that Vasquez had committed marriage fraud did go directly to the question whether she was admissible at the time of admission: it meant that she was not, by operation of the fraud provision. 11 § 212(a)(6)(C)(i).
We conclude that in Vasquez’s case, and in any other ease in which the Attorney General admits an alien into the United States as a conditional permanent resident based on her marriage to a U.S. citizen but later terminates that status upon a finding of marriage fraud, the termination of status ground of removal does “relat[e] to the removal of aliens ... on the ground that they were inadmissible at the time of admission” as aliens who sought to procure admission by fraud. Both the termination of status and the finding of inadmissibility result from a single determination by the Attorney General that the qualifying marriage was entered into for the purpose of obtaining admission as an immigrant. § 237(a)(1)(H). Thus, whenever the Department finds that a conditional permanent resident has committed marriage fraud and charges her with removability on the ground that she was inadmissible at the time of admission as an alien who sought to procure admission by fraud, it will also be able to charge her as removable because her status has been terminated, as it did here. The two grounds are thus essentially coterminous and certainly “relate to” one another.
That Vasquez’s status was terminated two years after her admission as a conditional permanent resident does not detract from this conclusion. The reason permanent residence based on marriage is conditional is that the passage of two years provides the INS with additional evidence useful in ascertaining whether the
original admission
was premised on a bona fide marriage. The “central question” in determining whether an alien “entered into her marriage in good faith, and not for the purpose of procuring an immigration benefit, ... [remains] whether she and [her spouse] intended to establish a life together
at the time they were married.'” Damon v. Ashcroft,
Thus, unlike termination of status upon failure to file a joint petition, termination of status upon a finding of marriage fraud is not “separate and independent” from inadmissibility at the time of admission.
Gawaran,
In sum, § 237(a)(1)(D), providing that aliens whose conditional permanent resident status has been terminated are deportable, is a “provision[ ] ... relating to the removal of aliens ... on the ground that they were inadmissible at the time of admission” where the termination is premised on fraud. Aliens removed for such a termination are therefore eligible for the fraud waiver provided for in § 237(a)(1)(H).
If the result were otherwise and the fraud waiver did not cover the termination of status ground of removal in this case, then the agency could effectively remove marriage fraud from the category of frauds covered by the waiver. The agency could do so by choosing always to charge removability under § 237(a)(1)(D), rather than, or, as here, in addition to, § 237(a)(1)(A), the other available charging section. The Supreme Court and this court have construed the fraud waiver in other circumstances to avoid similar results.
In
Errico,
We considered a similar question in
Cacho v. INS,
Following Errico, Reid, and Cacho, Congress has made clear through a series of amendments that the fraud waiver applies to removal based on grounds of inadmissibility directly resulting from the fraud or misrepresentation: First, Congress both (1) excluded particular categories of inadmissibility (regarding labor certifications, visas, and quota restrictions) from the requirement that an alien be “otherwise admissible”; and (2) specified that the fraud waiver operated to waive those grounds of inadmissibility as well. See Immigration & Nationality Act Amendments of 1981, Pub.L. No. 97-116, § 8, 95 Stat. 1611, 1616 (1981). Then, in 1990, Congress amended the waiver provision to provide that it covers not just the grounds of inadmissibility specifically excepted from the “otherwise admissible” requirement but also any “grounds of inadmissibility at entry directly resulting from such fraud or misrepresentation.” Immigration Act of 1990, Pub.L. No. 101-649, § 602, 104 Stat. 4978, 5079 (1990).
These amendments corrected the specific problem we perceived in
Cacho,
but the problem persists in another form: Here, by lodging an additional charge against Vasquez late in her removal proceedings, the DHS attempted to “write [the fraud waiver] off the books.”
Cacho,
Nor is there any reason to believe that when Congress passed the Immigration Marriage Fraud Amendments of 1986 and instituted the system of conditional permanent residence — including the new ground for removal based on termination of conditional permanent resident status— it intended to make the fraud waiver unavailable to immigrants who committed marriage fraud. 15 There was no need for Congress to create a new waiver for aliens whose joint petitions were denied on the merits because the general fraud waiver, setting forth its own particular requirements, already existed. The hardship waiver provision in section 216 therefore addressed only aliens who failed to file a joint petition, not those who filed a petition and had it adjudicated but denied on fraud grounds. In all likelihood, Congress assumed the existing fraud waiver would continue to apply to marriage fraud, as it applies to all other species of fraud by which admission is gained to the United States. Our analysis of the statutory “relating to” language so indicates, precluding the BIA’s conclusion that Congress singled out marriage fraud as the only kind of fraud not fully covered by the fraud waiver.
For all these reasons, we conclude that in the circumstances that obtain here— that is, where the basis for termination of conditional permanent residence is that the marriage was not bona fide — the termination of status ground of removal provided in § 237(a)(1)(D) is “relatfed] to” the removal of aliens on the ground that they were inadmissible at the time of admission as aliens who sought to procure admission by fraud. We reject the BIA’s contrary holding, based on an inaccurate reading of Gomaran, and hold that Vasquez was eligible for a fraud waiver under § 237(a)(1)(H).
2. Discretionary Denial
In addition to grounding its ruling on the extension of
Gomaran
we have disapproved, the BIA also affirmed the alternative IJ holding denying Vasquez’s application for a fraud waiver as a matter of discretion. Although we do not have jurisdiction to review the discretionary denial of a fraud waiver, we do “have jurisdiction ... to review the statutory eligibility elements under § 237(a)(1)(H),”
San Pedro v. Ashcroft,
IJ Yam, the last IJ who ruled in Vasquez’s case, addressed only Vasquez’s eligibility for a fraud waiver, not her eligibility for the extreme hardship waiver available where the joint petition requirement is not met. IJ Smith had already held that Vasquez “does not have the benefit of ... a hardship waiver” because “a joint petition was filed and it was denied.” The only issue before IJ Yam was whether to grant the fraud waiver, as IJ Yam recognized at the outset of her opinion, stating, under the heading “Statutory Eligibility for INA 237(a)(1) Waiver,” that “[Respondent seeks a waiver under Section 237(a)(l)(H)[ ] of the Act,” and then quoting that entire section.
*1018 Addressing that question, IJ Yam ruled, first, that Vasquez was no longer eligible for the fraud waiver because the INS had added to its charge the termination ground for removal; we have held that ruling erroneous. IJ Yam went on to hold, in the alternative, that she would deny the fraud waiver were Vasquez eligible for it. Nowhere in her opinion does IJ Yam cite to or quote § 216(c)(4), the waiver provision applicable to failure to file a joint petition for removal of conditional status, and, notably, nowhere does she use the term “extreme hardship” used in that provision (emphasis added).
IJ Yam’s oral decision does evidence confusion about the parameters of the fraud waiver, however, as she refers repeatedly to it — the only waiver before her — as a “hardship waiver.”
16
Although there are several statutory eligibility criteria for a fraud waiver — the alien must be the spouse, parent, son, or daughter of a U.S. citizen or permanent resident; must have been in possession of an immigrant visa or the equivalent at the time of admission; and must have been otherwise admissible, with certain exceptions — none requires that an alien show hardship. § 237(a)(1)(H). Although the IJ
may
consider hardship in exercising discretion regarding whether to grant a fraud waiver to an eligible alien, there is no requirement that she do so, or that the alien prove that a particular quantum of hardship would result from her removal.
See In re Tijam,
22 I.
&
N. Dec. 408, 412-13,
The BIA’s decision only compounded the confusion. It upheld IJ Smith’s ruling that Vasquez was ineligible for an extreme hardship waiver to remove the conditions on residence, rejecting IJ Yam’s suggestion that Vasquez’s joint petition had been withdrawn rather than adjudicated. Then, although only the fraud waiver was before IJ Yam, the BIA held that even if Vasquez had been eligible to seek an extreme hardship waiver, “as noted in the January 28, 2004, decision of the Immigration Judge [IJ Yam’s decision], she would not find extreme hardship and she would deny such petition as a matter of discretion.” In so stating, the BIA misunderstood which waiver application IJ Yam considered and discretionarily denied; as we have explained, IJ Yam referred to and considered only the fraud waiver, although she misunderstood its requirements. Later, the BIA opinion states, “We are not persuaded ... that the Immigration Judge abused her discretion in finding that the waivers under section 216(c)(4)(A) [the extreme hardship waiver] and 237(a)(1)(H) [the fraud waiver] should be denied.” (emphasis added). But — again—there were two IJs; IJ Smith held the extreme hardship waiver inapplicable and did not exercise her discretion, even in the alternative, regarding the extreme hardship waiver of the petition requirement, and only the fraud waiver was at issue before IJ Yam.
In sum, IJ Yam misunderstood the statutory requirements for a fraud waiver, and *1019 the BIA did not correct that error. We therefore remand to the agency to apply the correct legal standard in considering, in its discretion, Vasquez’s application for a fraud waiver.
CONCLUSION
The BIA did not err in holding that Vasquez is ineligible to apply for an extreme hardship waiver under § 216(c)(4). Vasquez is eligible to apply for a fraud waiver under § 237(a)(1)(H), as her conditional permanent resident status was terminated upon a finding of marriage fraud. In these circumstances, we conclude that the fraud waiver can waive removal based on the termination of status. Finally, we remand to the BIA to determine, applying the proper legal standard, whether Vasquez’s application for a fraud waiver should be denied in the exercise of discretion.
PETITION GRANTED; REMANDED for further proceedings.
Notes
. Petitioner's name appears variously in the record as Rene Rose Vasquez and Renerose Vasquez. We adopt the latter spelling here.
. We provide parallel citations to both the INA and the U.S. Code upon the first mention of a statutory section; subsequent citations refer only to the INA.
. Effective March 1, 2003, the Immigration and Naturalization Service (INS), under the direction of the Attorney General, ceased to exist and its functions were transferred to the Department of Homeland Security (DHS). See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Slat. 2135 (Nov. 25, 2002). Because Vasquez submitted a joint petition to the INS and had it adjudicated before 2003, we continue to refer to the Attorney General as the relevant decision maker.
. In relevant part, § 216(c)(4) provides:
(4) Hardship waiver
The Attorney General, in the Attorney General’s discretion, may remove the condition *1007 al basis of the permanent resident status for an alien who fails to meet the requirements of paragraph (1) if the alien demonstrates that—
(A) extreme hardship would result if such alien is removed,
(B) the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1), or
(C) the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent and the alien was not at fault in failing to meet the requirements of paragraph (1).
In determining extreme hardship, the Attorney General shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis. In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application. The determination of what evidence is credible and the weight to be given that evidence shall be within the sole discretion of the Attorney General....
. As we discuss later, although the BIA seems to have construed IJ Yam’s decision as alternatively denying both waivers as a matter of discretion, IJ Yam actually addressed only the fraud waiver.
. Vasquez exhausted this issue before the BIA: The parties fully briefed the issue before IJ Yam, and the BIA specifically addressed it.
See Ahmed v. Holder,
. The waiver provision provides in full:
(H) Waiver authorized for certain misrepresentations
The provisions of this paragraph relating to the removal of aliens within the United *1011 States on the ground that they were inadmissible at the time of admission as aliens described in section 1182(a)(6)(C)(i) of this title, 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) [participants in Nazi persecution, genocide, or torture]) 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 admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 1182(a) of this title which were a direct result of that fraud or misrepresentation.
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.
INA § 241(a)(1)(H), 8 U.S.C. § 1251(a)(1)(H) (1994), amended by Pub.L. No. 104-208, §§ 305, 308, 110 Stat. 3009 (1996) (redesignating INA § 241 as § 237 and making other amendments).
. Although unpublished decisions of the BIA are not entitled to deference under
Chevron USA, Inc. v. NRDC,
. Although Gawaran did not apply for a hardship waiver under § 216(c)(4), it appears she would have been eligible for one.
. The fraud waiver provision has been amended since we decided Gawaran, but its basic structure remains unchanged. In 1996, Congress substituted "removal'' for "deportation," "inadmissible” for "excludable,” and "admission” for "entry.” See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, Title III, § 308, 110 Stat. 3009-614.
. The BIA has long held that “[a] marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, [does not] enabl[e] an alien spouse to obtain immigration benefits.”
Matter of Soriano,
19 I. & N. Dec. 764, 765,
. We do not consider here cases in which the alien gained admission into the United States on some basis other than marriage but later married and then adjusted her status to that of a conditional permanent resident. We address only Vasquez's situation, in which the basis for admission was the fraudulent marriage, and the Service could have charged— or did charge — the alien with removability under § 237(a)(1)(A).
. At that time, the fraud waiver, then § 241(f), provided:
The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admis *1016 sible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.
8 U.S.C. § 1251(f) (1964).
. In
Reid,
the Supreme Court construed
Errico
narrowly and held that the fraud waiver did not apply to grounds of inadmissibility other than the fraud provision.
. In a case involving a sham marriage used to obtain permanent resident status before 1986, we held that "it is clear that [the fraud waiver] permits relief from a fraudulent marriage.” Virk v. INS, 295 F.3d 1055, 1059 (9th Cir.2002).
. The BIA states that IJ Yam said “she would not find extreme hardship.” That is incorrect. IJ Yam spoke only of “hardship,” not “extreme hardship.”