BIA HOLDS THAT ADJUSTMENT OF STATUS CONSTITUTES AN ADMISSION FOR PURPOSES OF DETERMINING A RESPONDENT’S ELIGIBILITY TO APPLY FOR AN INA § 237(a)(1)(H) WAIVER.
In a lengthy opinion accompanied by a sharp dissent, the Board of Immigration Appeals (BIA or Board), on May 18, 2015, held that an INA § 237(a)(1(H) waiver for certain fraud or misrepresentation at the time of admission is available to those who commit fraud in the adjustment of status process, distinguishing its prior precedent, Matter of Connelly, 19 I & N Dec. 156 (BIA 1984). The respondent had sought to file the waiver after admitting to filing fraudulent documents with her I-751 petition, but the Immigration Judge (IJ) found that she was statutorily ineligible, relying mostly on Matter of Connelly, which held that the predecessor waiver to § 237(a)(1(H) – INA § 241(f) – was limited to fraud in connection with one’s entry, not in relation to one’s adjustment. On appeal respondent argued that because the waiver required that she be in possession of an immigrant visa (IV) or equivalent document at admission, and adjustment has been recognized as serving the same procedural function as an “admission”, her adjustment of status was the same as being granted an IV.
The Board analyzed the issue of whether INA § 237(a)(1(H) waives fraud that occurs after one’s initial entry as a nonimmigrant, phrasing the question as whether adjustment is equivalent to an admission for purposes of that waiver. Discussing INA § 101(a), the BIA discoursed on the concepts of “entry” vs. “admission”; INA §§ 245(a) and (b); §§ 237(a)(1)(A) and (H); that section’s legislative history; and, the 1990 and 1996 (IIRIRA) Amendments to the Act, to find that those deportable for inadmissibility at the time of adjustment are among “the aliens who are ‘in and admitted’ to the United States” and therefore eligible for the waiver. The Board found that amendments to the removal sections of the Act focus on “admissions” rather than “entries”, such that INA § 237(a) now contemplates that immigrants who were inadmissible at the time of adjustment are “in and admitted” to the U.S., and as a result, subject to removal under INA § 237(a)(1)(A), thus distinguishing Matter of Connelly. Finally, because limiting the waiver to the time of entry with an IV would mean that those who are inadmissible at entry or adjustment would qualify for the § 237(a)(1(H) waiver but the waiver for fraud at admission would only apply to one’s initial entry – which it found to be “an incongruous application” of the law — the BIA construed the phrase “at the time of admission” to include adjustment of status. The Board thus sustained the appeal and remanded the record to the IJ. Matter of Agour, 26 I & N Dec. 566 (BIA 2015).
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