Fraud waiver under INA Section 237(a)(1)(H)
Thursday, 01 October 2009 22:48
Atty. Kenneth Ursua Reyes
3106
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Immigrants sometimes find themselves in immigration removal proceedings (deportation) because they have obtained their green cards through fraud and or misrepresentation. Acommon example would be married children of UScitizens who lie to the USEmbassy about their marital status by stating that they are single in order to obtain permanent residency. Another common example would be a married person who misrepresents her status as single to the USEmbassy or USCISin order to obtain a green through a petition from a new USCitizen spouse. These immigrants could have their green cards revoked and later on placed in removal proceeding by the USCISshould the government find out about the fraud or misrepresentation. The USCIS(formerly INS) usually discovers the fraud when the immigrant tries to petition another relative or when the immigrant tries to apply for USCitizenship.
However, there are certain relief available in immigration court for such immigrants who are the immediate relatives of either a USCitizen or Permanent
Resident. This is the fraud waiver under INA§237(a)(1)(H). The waiver of removal provision under INA§237(a)(1)(H), 8 USC 1227(a)(1)(H), specifically states:(H) Waiver authorized for certain misrepresentations. 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 212(a)(6)(C)(i) [8 USC §1182(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 admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) [8 USC §1182(a)(5)(A), (7)(A) ] which were a direct result of that fraud or misrepresentation. Awaiver 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.
Statutory eligibility for the §237(a)(1)(H) waiver is established by an alien who having entered the United States by fraud or misrepresentation, whether willful or innocent, after having obtained an immigrant visa or equivalent document, and is the spouse, parent, son or daughter of a United States citizen or lawful resident alien.Once statutory eligibility is established, the waiver is granted in the exercise of the
Attorney General’s discretion. For an alien in removal proceedings, the determinations of statutory eligibility and favorable exercise of discretion are made by an immigration judge. 8 C.F.R. §240.11(d). furthermore, unlike most other immigration petitions and applications, as well as most other forms of relief from removal or deportation, there is no formal application or fee required in order to request the §237(a)(1)(H) waiver. It is well established that the §237(a)(1)(H) waiver is available to cure removability and deportability for an alien whose permanent residence was obtained by misrepresenting his/her marital status, despite the fact that s/he would not have qualified for the immigrant status accorded and never would have been accorded that status had the true facts been known. Casem v. INS, 8 F.3d 700 (9th Cir. 1993)
