On November 1, 2016, the Board of Immigration Appeals (BIA or Board) addressed the issue of whether an INA §237(a)(1)(H) waiver can waive removability under INA §237(a)(2)(i) for conviction of a crime involving moral turpitude (CIMT) where the conviction is based on the underlying fraud and also analyzed whether such a respondent is eligible for other waivers of inadmissibility under INA §212 The case arose out of a fairly complex factual background: respondent had adjust status through marriage to a U.S citizen but was subsequently convicted of making materially false statements regarding his marriage and placed into proceedings on the basis that the relationship was a sham. Before the Immigration Judge (IJ) he was charged as removable under INA §237(a)(1)(G)(ii) (marriage fraud) and §237(a)(2)(A)(i) (conviction of a CIMT) and his conditional residence terminated by the Department of Homeland Security (DHS). The government then lodged an added charge of removability per INA §237(a)(1)(D)(i) (conditional resident status terminated).
Initially, the IJ upheld all of DHS’ allegations but respondent filed a motion to terminate, then a brief arguing he was entitled to an INA §237 (a)(1)(H) marriage fraud waiver, then a second brief alleging that if this waiver was granted he could adjust again based on a new marriage to a U.S citizen. The IJ denied the motion, pretermitted the waiver application, found the materially false statements conviction to be a CIMT and held respondent removable, finding he was ineligible for the §237(a)(1)(H) waiver because he was not charged with removability per INA §237(a)(1)(A) as inadmissible at the time he adjusted.
However, the IJ then reopened her order sua sponte, finding that respondent could use the §237(a)(1)(H) application to waive removability under §237(a)(1)(G)(ii) but declined to adjudicate the waiver on the ground that, even if she granted it, respondent would remain removable because of the automatic termination of his conditional residence and his CIMT conviction. The Board dismissed his appeal, finding respondent ineligible for the marriage fraud waiver because his conditional residence had been terminated when he failed to file a form I-751 petition. He then filed a petition for review with The Third Circuit Court of Appeals.
The Third Circuit found that respondent had preserved the issue of whether the fraud waiver applied to the CIMT and status termination charges holding that, under the specific facts of this case, the BIA could not rely on his failure to file the I-751 as a basis for removal per INA §237(a)(1)(D)(i). The Court remanded the record to the Board with instructions to consider respondent’s eligibility for the fraud waiver under §237 (a)(2)(A)(i), along with his eligibility for a waiver of inadmissibility under INA §212(h).
In a lengthy analysis, the BIA first considered the §237(a)(1)(H) waiver, concluding respondent could not avail himself of this section because his CIMT conviction is a ground for removal under INA §237(a)(2), not (a)(1). Thus, his eligibility under §237(a)(1)(H) depended “not on whether that provision can waive the fraud underlying his conviction but on whether it can waive his removability under §237(a)(2)(A)(i)”, which rendered him removable for the CIMT conviction. That is, the waiver only reaches removability under §237(a)(1) and cannot address a charge under (a)(2), even one predicated on a conviction for the underlying fraud.
The Board next found respondent ineligible for a §212(h) waiver “because he is not an arriving alien seeking to waive a ground of inadmissibility or an alien in removal proceedings seeking to waive inadmissibility in conjunction with an application for adjustment of status”, citing Matter of Rivas, 26 I&N Dec. 130 (BIA 2013)(§212(h) waiver not available on a “stand-alone” basis to one in removal proceeding without a concurrently filed adjustment application). Finally, finding respondent ineligible for an INA §212(c) waiver, the BIA dismissed the appeal. Matter of Tima, 26 I&N Dec. 839(BIA 2016).
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