BIA Holds That A Fraud Waiver Under INA§237(a)(1)(H) Does Not Waive A Respondent’s Removability Under INA §(a)(1)(D)(i), Where Conditional Permanent Residence Was Terminated For Failure To File A Joint Petition, A Reason Separate And Independent From Fraud. Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995), AFF’d Gawaran v INS, 91 F. 3d 1332 (9th Cir 1996), Reaffirmed. A §237(a)(1)(H) Fraud Waiver Cannot Be Used In Place Of, Or In Conjunction With, A “Good Faith” Waiver Under INA §216(c)(4)(B) To Waive The Requirement To File A Joint Petition To Remove Conditions On Residence Under INA §216.
On October 6, 2022, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of an order of the Immigration Judge (IJ) which denied Respondent’s request to waive the requirement to file a joint petition to remove the conditions on his permanent residence under INA §216. The IJ also deemed Respondent ineligible for a waiver of removability under INA §237(a)(1)(H); Respondent was ordered removed.
Respondent obtained conditional residence through marriage to a U.S. citizen. The couple initially filed a Form I-751 Joint Petition To Remove Conditions on Residence but his spouse “later withdrew her support from this joint petition.” USCIS deemed the petition withdrawn. Respondent subsequently filed a second Form I-751 based on the same marriage, requesting that the joint petition requirement be waived, contending his marriage was entered into a “good faith”, per INA §216(c)(4)(B). USCIS denied the 751, finding the marriage had not been entered into in good faith, and terminated Respondent’s conditional residence.
Respondent was then placed into removal proceedings and conceded removability as charged under INA §237(a)(1)(D)(i) for being a conditional resident whose status had been terminated. He initially sought review of the decision to deny his “good faith” waiver request, “again contending that his marriage had been entered into in good faith.” At his individual hearing, Respondent insisted that his marriage had been bona fide, even after being provided with evidence from a USCIS field investigation showing the marriage was fraudulent. He subsequently withdrew his request that the IJ review the “good faith” waiver denial and requested a fraud waiver under INA §237(a)(1)(H).
At a second hearing, Respondent refused to call his former wife as a witness and admitted that the marriage was not bona fide but had been entered into for immigration purposes. He then reinstated his request that the IJ review the denial of his “good faith” waiver of the joint filing requirement and sought a §237(a)(1)(H) waiver in conjunction with the “good faith” waiver. The IJ denied both waivers finding first that the fraud waiver could not waive Respondent’s removability under INA §237(a)(1)(A); she then denied the “good faith” waiver-based I-751 because he did not establish his marriage was entered into in good faith. Respondent appealed.
The BIA began its analysis by noting that there were 2 “main interrelated issues in this case.” The first was whether Respondent could use §237(a)(1)(H) to waive removability under §237(a)(1)(D)(i), which was based on the termination of his conditional residence for failure to file a joint petition; the second was whether Respondent could use a 237(a)(1)(H) waiver in place of, or in conjunction with, a §216(c)(4)(B) “good faith” waiver.
There followed a lengthy explication of §237(a)(1)(H), a provision which authorizes a waiver of removability under §237(a)(1)(A) based on charges of inadmissibility at the time of admission per INA §221(a)(6)(C)(i) for fraud or willful misrepresentation of a material fact or §212(a)(7)(A)(i)(I) for lack of valid immigration documents. The decision explained that INA §216 had created a 2-year conditional residence period for those attempting to obtain lawful residence through marriage. During the last 3 months of those 2 years, the U.S. citizen and his or her spouse have the burden of proving “that their marriage was bona fide and entered into in good faith” via a joint petition. If they meet their burden, the conditions on residence are lifted and permanent residence granted. However, stated the decision, if DHS finds that the marriage was “not bona fide and entered into for the purpose of circumventing the immigration laws”, the Government may terminate conditional resident status and initiate removal proceedings.
Further, explained the Board, for those marriages that were entered into in good faith but failed prior to the end of the 2-year conditional residence period, “Congress provided a discretionary waiver of the joint petition requirement” under §216(c)(4). To obtain the waiver, an applicant must prove that he or she was not at fault for failing to meet the filing requirement and that 1) extreme hardship would result if he or she was removed; 2) the marriage was entered into in good faith but had been terminated; or, 3) the marriage was entered in good faith but the applicant was subjected to battery or extreme cruelty by either the petitioning spouse or intended spouse. The opinion then noted that where a request for a waiver of the joint petition requirement is denied and conditional residence terminated, the applicant becomes removable per INA §237(a)(1)(D)(i) “and he or she may seek review of the specific waiver USCIS denied before an Immigration Judge in removal proceedings.”
As applied to the instant matter, the BIA initially noted that, although Respondent first argued in proceedings that his marriage was bona fide, “he later admitted that he entered into this marriage for the express purpose of obtaining immigration benefits.” He also filed “numerous false documents” with his first I-751. Yet, he contended on appeal that the IJ erred in finding him ineligible for a 237(a)(1)(H) waiver, arguing that his fraudulent marriage was the underlying reason his conditional residence was terminated. Thus, he argued, he could use the 237(a)(7)(H) waiver “to cure the fraud underlying the termination of his conditional status and waive his removability” under §237(a)(1)(D)(i). The Board did not agree.
First, noted the opinion, the facts in the instant case were nearly identical to those in Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995) aff’d Gawaran v. INS, 91 F. 3d 1332 (9th Cir. 1996). There, the BIA had rejected the appellant’s contention “that her fraudulent behavior so thoroughly permeated all charges of deportability that she could use a fraud waiver to cure them all.” It also found that she had waived the opportunity to obtain an “extreme hardship” waiver of the joint filing requirement as she had not sought that waiver before the IJ. Similar to the Respondent in Gawaran, here Respondent sought to “circumvent the requirements” of §216 by using an unrelated statutory provision, which only applied to his removability, not the joint filing requirement. §237(a)(1)(H) did not supplant this requirement nor did it allow for Respondent’s failure to prove his marriage had been entered into in good faith. In effect, concluded the decision, Respondent was seeking “to create a fraud waiver for the joint petition requirement, which does not exist in the statutory scheme and is inconsistent with Congress’ aim in enacting section 216…”
Similarly, Respondent’s reliance on Vasquez v. Holder, 602 F.3d 1003 (9th Cir. 2010) was “inapposite and unpersuasive.” That case involved a respondent whose I-751 was denied on the merits, for marriage fraud, not – as here – a termination of conditional residence for failure to even file a 751. And, emphasized the Board, in Vasquez the Ninth Circuit had acknowledged that Matter of Gawaran and the appellate court’s decision affirming it remain good law.
Per Gawaran, Respondent had not established that a 237(a)(1)(H) fraud waiver eliminates his removability under §237(a)(1)(D)(i). The joint petition was deemed withdrawn because the U.S. citizen spouse had withdrawn her support and Respondent was unable to establish that the 751’s denial was based solely on a finding of marriage fraud. The BIA thus held that a 237(a)(1)(H) waiver does not waive one’s removability under 237(a)(1)(D)(i) where, as here, conditional residence was terminated for failure to file a joint petition, a reason “separate and independent” from fraud. Nor could Respondent use the fraud waiver, which “applies merely to grounds of removability”, in place of or in conjunction with a “good faith” waiver under §216(c)(4)(B); as Respondent’s I-751 was withdrawn by operation of law, he had the burden of proving his eligibility for a “good faith” waiver of the joint filing requirement. The Board agreed with the IJ that Respondent could not meet this burden because he had admitted his marriage was a sham.
The BIA also held that a §237(a)(1)(H) fraud waiver cannot be used in place of or in conjunction with a “good faith” waiver of the 751 filing requirement under 216(c)(4)(B) and that Respondent had not “persuasively argued that Congress intended the waivers [to] operate in this manner.” As the opinion agreed with the IJ that: Respondent had not met his burden as to the fraud waiver eliminating removability under §237(a)(1)(D)(i); a “good faith” waiver was not warranted per §216(c)(4)(B); and, Respondent could not use a fraud waiver instead of or with a “good faith” waiver, the appeal was dismissed. Matter of Bador, 28 I&N Dec. 638 (BIA 2022).
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