In the last month, the BIA has published several new decisions that continue to tweak the definition of “admission” and, in the meantime, have seemingly changed the rules related to eligibility for relief for individuals accused of obtaining the residency by fraud.

The problem is simple, but it has plagued the BIA and the courts for years.

Matter of Koloamatangi – Adjustment of Status By Fraud Means Ineligibility for a Fraud Waiver

When a person is accused of having obtained the permanent residence through fraud, the BIA has for more than a decade held that the person has not been “lawfully admitted for permanent residence” and thus is not eligible for cancellation of removal as a permanent resident or for a waiver under INA 237(a)(1)(H).  See Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003).

Matter of Koloamatangi has since been cited by the BIA hundreds of times to hold that immigrants who the court believes got their residence through fraud can’t obtain either a fraud waiver or cancellation of removal, because both forms of relief require the immigrant to have been “lawfully admitted for permanent residence.”

Matter of Agour – Opening the Door to Eligibility For Relief Even if Adjustment Included Fraud

Last month the BIA signaled a change to this body of law. It issued its precedential decision in Matter of Agour, 26 I&N Dec. 566 (BIA 2015), holding that an immigrant who had been accused of adjusting his status through a fraudulent marriage was nevertheless lawfully admitted for permanent residence and could apply for a waiver under INA 237(a)(1)(H).

The Board in Matter of Agour did not mention Koloamatangi.  However, Board member Roger Pauley observed in his dissent that the majority had, in essence, decided that waivers under INA 237(a)(1)(H) were available to excuse “not only fraud at the time of entry, but also fraud at the time of adjustment.”

Matter of Pena – Closing the Door to Eligibility For Relief if Adjustment Included Fraud

Less than a month after it issued its decision in Agour the BIA published a new decision Matter of Pena, 26 I&N Dec. 613 (BIA 2015). Matter of Pena addressed the issue of how lawful permanent residents returning from a trip abroad are to be charged. However, in its final paragraph, the majority seemed to reaffirm Koloamatangi, writing that

“If the DHS can meet its burden of proving that the respondent is deportable as an alien who acquired lawful permanent resident status through fraud, then in terms of available relief from removal, the respondent will be in the same position he would have been in if he had never obtained such status.”

However, the Board did not overrule Matter of Agour. On its face, this looks like a conflict.  How can the Board hold in Matter of Agour that an immigrant charged with fraud is eligible for a waiver under INA 237(a)(1)(H) but only a month later hold that he is not?  Neither decision references the other and neither is well-explained.

These issues will have to be litigated in immigration court and likely will be challenged in appeals to the Courts of Appeal. But these cases are a good reminder not to give up on eligibility for relief solely based on Matter of Koloamatangi, because the issue is far from settled.