In a new published decision on November 1, 2016 the BIA attempted to clarify the possible scope of the waiver found at INA 237(a)(1)(H) but in doing so ignored the plain language of the statute. Matter of Tima, 26 I&N Dec. 839 (BIA 2016).
The Board’s decision resulted from a Third Circuit remand asking for the Board to clarify whether a waiver based on an immigrant’s inadmissibility for having committed fraud would also cure inadmissibility under INA 212(a)(2) for a “crime involving moral turpitude” involving the same fraud. Tima v. Att’y Gen. of U.S., 603 F. App’x 99 (3d Cir. 2015). But rather than read the waiver statute as it is written, to encompass both removability for the “inadmissibility” arising from the fraud as well as other grounds of inadmissibility related to the fraud, the BIA has read a limitation into the scope of 237(a)(1)(H) that is not consistent with the statute.
I. History of the Fraud Waiver
Before getting into why the Board’s decision is so problematic it helps to know a bit about the history of the “fraud waiver” found at INA 237(a)(1)(H). The “fraud waiver” was originally created by Congress in 1957 which required a waiver of deportation for immigrants who had committed fraud but had significant family ties to the United States. In 1961, Congress made the fraud waiver discretionary, which then remained undisturbed for twenty five years at previous section 241(f) of the INA, 8 U.S.C. § 1251(f) (1964).
In interpreting the purpose of the fraud waiver the Supreme Court has explained that Congress intended with this legislation “to unite families.” INS v. Errico, 385 U.S. 214, 224 (1966). In essence, this waiver allowed that even if your mother had committed fraud in the past in trying to enter the United States, it would be devastating for you and your siblings to grow up without a mother, so the law allowed immigration authorities to forgive her fraud.
In 1990 Congress passed the Immigration Act of 1990 (IMMACT 90). In doing so, Congress repealed INA 241(f) and created in its place a new section 241(a)(1)(H) entitled “Waiver authorized for certain misrepresentations.” 104 Stat. at 5079, 5081. In 1996 Congress again amended the statute, moving the “fraud waiver” to INA 237(a)(1)(H), which created the waiver that exists today.
In its current form, the “Fraud Waiver” reads as follows:
The 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 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)) 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 1182(a) of this title which were a direct result of that fraud or misrepresentation.
(ii) is a VAWA self-petitioner.
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.
The scope of the “fraud waiver” is determined by the first sentence and the last sentence of this section, which make clear that this section waives two separate things. In the first sentence it explicitly waives the ground of removability under INA 237(a)(1)(A) which says an immigrant who has already been admitted but was not admissible (i.e. not eligible to have been admitted) at the time of admission because of some fraud or deceit. Second, the final sentence of this subparagraph says it also waives “removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation.”
The Problem in Matter of Tima
In Matter of Tima the immigrant had admitted to engaging in marriage fraud, which resulted in two separate grounds of removability: (1) inadmissibility at the time of his admission (i.e. he was admitted based on a marriage that was later deemed fraudulent); and (2) removability under INA 237(a)(2) for having committed a crime that involved “moral turpitude” for making a false statement to federal authorities about his fake marriage (the false statement was his claim that the marriage was bona fide). Thus, he did one thing but there are two different provisions of the law that trigger removability as a consequence of his fraud.
Represented by highly competent immigration counsel Mr. Tima argued that he was eligible for a fraud waiver under INA 237(a)(1)(H) because he was charged as being inadmissible at the time of his admission for fraud, and that such a waiver would waive both the fraud ground of removability (under INA 237(a)(1)(A)) and the “moral turpitude” ground of removability resulting from his fraud under INA 237(a)(2)(A).
After losing at the BIA, Mr. Tima sought review at the Third Circuit. The Third Circuit sent the case back to the BIA to address whether Mr. Tima might be eligible for a 212(h) waiver but also asked the Board to consider, if he wasn’t eligible for a 212(h) waiver, whether the 237(a)(1)(H) waiver would be broad enough to waive the “crime involving moral turpitude” ground.
The BIA’s 212(h) analysis was strained, but in rejecting eligibility for the 237(a)(1)(H) waiver the Board basically ignored the last sentence of 237(a)(1)(H).
The Board focused on the first sentence of 237(a)(1)(H), which reads “[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 section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived . . . .” The Board concluded that the “this paragraph” language meant that the only ground of removability which could be waived was removability arising under INA 237(a)(1) and nothing else.
That analysis is fine until you read the rest of INA 237(a)(1)(H), the final sentence of which says “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.”
The Board doesn’t even talk about this sentence or explain why it would not waive other grounds of removability “directly resulting from” the act of fraud that was Mr. Tima’s first marriage. What is more, the Board’s analysis renders this final sentence of INA 237(a)(1)(H) superfluous. If the waiver only covers the ground of removability under INA 237(a)(1)(A), then what other grounds of removability could the final sentence of 237(a)(1)(H) possibly be referring to? Why does the final sentence say “also”?
The Solution: Read INA 237(a)(1)(H) As It’s Written.
If you read the first sentence and the last sentence of INA 237(a)(1)(H) in concert, they clearly mean that a person who is charged with removability under INA 237(a)(1)(A) for having been inadmissible at the time of admission is eligible to waive that ground of removability as well as any other grounds of removability “directly resulting from such fraud or misrepresentation.”
That view is consistent with other BIA precedents – like Matter of K, which said fraudulently entering by claiming to be a US citizen could be waived under INA 241(f) (the old version of the fraud waiver) even if you’re also charged with a separate ground of removability arising from the fraud, because “the section of the law under which the deportation charge is laid is immaterial.” Id. p. 589.
This view is also consistent with the Supreme Court’s decision in Judulang v. Holder. In Judulang the Supreme Court considered whether a waiver under INA 212(c) could waive grounds of removability even if the statute itself only referred to grounds of inadmissibility. In what is perhaps Justice Kagan’s finest written opinion thus far for the court, the majority noted that the BIA’s application of the statute “does not rest on any factors relevant to whether an alien should be deported” but rather had turned waiver eligibility “into a ‘sport of chance.'”
Justice Kagan wrote that once it is determined that an immigrant is eligible for the waiver “the thing the Attorney General waives is not a particular exclusion ground but the simple denial of entry.” Although INA 212(c) and INA 237(a)(1)(H) differ slightly in their wording, the Supreme Court’s argument in Judulang is a helpful reminder that the statute’s language should be read faithfully – not absurdly. Applied here, Judulang seems to indicate that once a person is deemed eligible for a 237(a)(1)(H) waiver because he was inadmissible there is no earthly reason to deny a waiver simply because the prosecutor chose to lodge a separate charge for the same fraudulent conduct.
The Board in Matter of Tima cites several circuit court cases to support its view, but things aren’t exactly as the Board describes. Notably, in Taggar v. Holder, 736 F.3d 886, 890 (9th Cir. 2013) the immigrant was charged under INA 237(a)(3)(B)(iii) (which makes an immigrant who is convicted of falsifying documents deportable), not 237(a)(1)(A) as here. Although the BIA in Matter of Tima says Taggar supports its analysis, the Ninth Circuit in Taggar was very clear that the reason the immigrant wasn’t eligible for the 237(a)(1)(H) waiver was that she wasn’t charged as being inadmissible at the time of her admission. Mr. Tima was specifically charged with being inadmissible at the time of his admission (in addition to a separate fraud ground). Thus, the Taggar is marginally relevant.
To the Board’s credit, two circuits do seem to agree with its view. The Seventh Circuit’s decision in Gourche v. Holder, 663 F.3d 882, 886–87 (7th Cir. 2011) is consistent with the ruling in Tima, but there the Seventh Circuit commits the same error as the Board. Nowhere does the Seventh Circuit mention the last sentence of 237(a)(1)(H), which in fact says a waiver of inadmissibiltiy at the time of admission operates to also waiver other fraud-related grounds of inadmissibility.
The Sixth Circuit’s decision in Fayzullina v. Holder, 777 F.3d 807, 815 (6th Cir. 2015) repeated the analysis from Gourche and went on to hold that the last sentence of 237(a)(1)(H) still only applies to removability under INA 237(a)(1)(A). But as noted above, that tortured reading makes the final sentence of 237(a)(1)(H) superfluous and ignores the word “also.” If the final sentence of INA 237(a)(1)(H) only applies removability under 237(a)(1)(A), then there’s no need for the catch-all sentence at all (because removability under INA 237(a)(1)(A) is already waived by the first sentence of 237(a)(1)(H).
The decision in Matter of Tima will likely give the Third Circuit another opportunity to rule on this issue, and hopefully, if it does, the Third Circuit will resucitate the plain meaning of the last sentence in INA 237(a)(1)(H). Interpretive gymnastics are not necessary. Read in context, it is clear that the first sentence of INA 237(a)(1)(H) waives the ground of removability under INA 237(a)(1)(A) for being inadmissible at the time of admission for fraud, and the last sentence of 237(a)(1)(H) waives the remaining grounds of inadmissibility “directly resulting from such fraud or misrepresentation.”