Zimmer's Books

by William K. Zimmer, in Immigration Matters

The procedural history, facts of record, holding and rationale in Rangel Perez v. Garland (May 2, 2023) No. 22-60074 are as follows:
 

Case History

The Department of Homeland Security (“DHS”) charged that the Petitioner is subject to removal from the United States.

 

The Petitioners conceded that they were subject to removal States.

 

The Petitioners filed applications for two different waivers to avoid removal.

 

The Immigration Judge denied one waiver, but refused to consider the second waiver application.

 

The Petitioners appealed to the Board of Immigration Review (“BIA”).

 

The BIA dismissed the Petitioners’ appeal.

 

The Petitioners then filed a petition for review with the Fifth Circuit Court of Appeal.

 

 

Facts

• The Petitioners are citizens of Cambodia who entered the United States with visitor visas.
• The Petitioners then entered into fraudulent marriages with United States citizens and resided together as common law spouses in the United States.
• Both Petitioners were convicted for fraud and misuse of a visa, permits, and other documents in violation of 18 U.S.C. § 1546(a).
• In addition, the Petitioners were convicted for conspiracy to commit marriage fraud and benefit fraud under 18 U.S.C. § 371, 1546(a) and section 275(c) of the Immigration and Nationality Act, as amended (the Act), as well as aiding and abetting marriage fraud under 18 U.S.C. § 2 in conjunction with section 275(c) of the Act.
• The Department of Homeland Security (“DHS”) charged that the Petitioners are subject to removal from the United States under section 237(a)(1)(D)(i) of the Act based on termination of conditional permanent resident status and section 237(a)(3)(B)(iii) of the Act for violation of 18 U.S.C. § 1546 (relating to fraud and misuse of a visa, permits, and other documents).
• The Petitioners conceded that they were subject to removal from the United States as charged and filed applications under section 216(c)(4) of the Act (relating to hardship waivers to avoid removal arising from termination of conditional permanent resident status) and section 237(a)(1)(H) of the Act (which provides a waiver of inadmissibility for misrepresentation or fraud).
• The Immigration Judge addressed only the fraud waiver, reasoning that ineligibility for that waiver obviated the need to consider the hardship waiver because Petitioners would remain deportable for fraud regardless.
• In particular, the Immigration Judge concluded that an applicant for a waiver under section 237(a)(1)(H) of the Act must be “otherwise admissible” to the United States, and because the Petitioners had been convicted for marriage fraud under 18 U.S.C. § 1546 the Petitioners would remain inadmissible under section 237(a)(3)(B)(iii) of the Act, even if a waiver under section 237(a)(1)(H) of the Act is granted.
• In short, the Immigration Judge granted the DHS motion to pretermit the Petitioners’ waiver applications.
• The Petitioners appealed to the Board of Immigration Appeals (“BIA”).
• The BIA determined that an application under section 237(a)(1)(H) of the Act cannot waive Petitioners’ removability under section 237(a)(3)(B)(iii) of the Act, because the subparagraph waives only grounds for deportability listed in section 237(a)(1) of the Act.
• The BIA adopted the Immigration Judge’s reasoning by finding “no good purpose” to adjudicate Petitioners’ hardship waivers because they would remain subject to removal based on fraud convictions and ultimately dismissed the Petitioners’ appeal.
• The Petitioners then filed a petition for review.

 

Held

Petition for Review DISMISSED in Part for lack of jurisdiction and DENIED in part

 

Rationale

The Petitioners raised five arguments to the BIA’s denial of their applications for relief from removal as follows:

1. An application under section 237(a)(1)(H) of the Act can waive removability under section 237(a)(3)(B)(iii) of the Act;
2. the Petitioners are eligible for hardship waivers under section 216(c)(4) of the Act;
3. the Immigration Judge erred by finding that Petitioners would be ineligible for a fraud waiver under section 237(a)(1)(H) of the Act;
4. the Immigration Judge erred in finding that Petitioners could not “stack” waivers; and
5. denial of due process.

 

The Fifth Circuit Court of Appeal reasoned as follows:

 

Waiver of The Charge Under Section 237(a)(3)(B)(iii) of the Act

• The waiver under section 237(a)(1)(H) of the Act applies, by its plain text, only to aliens inadmissible due to use of fraud or misrepresentation to procure a visa or other documentation under section 212(a)(6)(C)(i) of the Act.
• Section 212(a)(6)(C)(i) of the Act does not refer to convictions.
• The waiver under section 237(a)(1)(H) of the Act also applies to “[t]he provisions of this paragraph,” limiting it explicitly to the section 237(a)(1) of the Act.
• Where Congress includes waivers within other paragraphs, they generally apply to those subsections or paragraphs alone.
• The text of section 237(a)(1)(H) of the Act contains no indication that it applies to the entire section or to any other paragraph within that section.  Therefore, the 237(a)(1)(H) waiver only applies to specific instances of fraud within section 237(a)(1) of the Act; not fraud at large.
• The Petitioners are subject to removal under section 237(a)(3)(B)(iii) of the Act because they have been convicted under 18 U.S.C. § 1546; not because they are inadmissible based on the grounds of inadmissibility directly resulting from fraud or misrepresentation.
• The statute creates this distinction by providing separate charges for fraud and fraud convictions.
• Although the United States Supreme Court in Judulang v. Holder 565 U.S. 42, at 53 (2011) criticized the government’s comparable-grounds approach because it afforded aliens within the country access to relief only if those outside the country had similar access under federal law, the Petitioners’ case is dissimilar and the BIA’s conclusion is far from arbitrary.  The government charged that the Petitioners are subject to removal for fraud convictions under a provision intended to make aliens removable for specifically committing that crime.  In other words, the BIA simply applied the law as Congress wrote it.

 

Due Process

• The Immigration Judge held, as a matter of law, that the Petitioners would remain subject to removal from the United States and ultimately removed following their concession of removability under § 1227(a)(3)(B)(iii).  Therefore, the Immigration Judge and the BIA found no need to consider Petitioners’ other arguments.
• The Petitioners were afforded multiple oral hearings to present their case, and were afforded the opportunity to argue their theory of the law.
• Although the Petitioners argued that it is unfair to find them ineligible for the fraud waiver merely because the government charged them with removability under section 237(a)(3)(B)(iii) of the Act rather than section 212(a)(6)(C)(i) of the Act, the government did not act unfairly by charging Petitioners under a provision designed for convicted individuals rather than a provision relating to unprosecuted fraud.
• Finally, the Petitioners failed to show substantial prejudice resulting from any error.  In other words, they failed to make a prima facie (i.e. on the face or surface of the record) showing that they would be entitled to relief in the absence of any error.

 

Petitioners’ Remaining Arguments

• The BIA did not reach the Petitioners’ remaining arguments that:  (2) they are eligible for hardship waivers under section 216(c)(4) of the Act; (3) the Immigration Judge erred in finding that Petitioners would be ineligible for a section 237(a)(1)(H) waiver; and (4) the Immigration Judge erred in finding that Petitioners could not “stack” waivers.
• Since the BIA did not consider these remaining issues, an appellate court lacks jurisdiction to review them.
• Remand of the record of proceedings to allow the BIA to consider these arguments is not appropriate because the Petitioners are subject to removal from the United States based on section 237(a)(3)(B)(iii) of the Act.  Thus, there is no realistic possibility the BIA would reach a different conclusion.  See Lopez-Perez v. Garland, 35 F.4th 953, at 956 (5th Cir. 2022); Luna-Garcia v. Barr, 932 F.3d 285, at 291 (5th Cir. 2019).

 

Commentary

Perhaps, a brief review of the waiver under section 237(a)(1)(H) of the Act outside the context of Leaphiny Reese; Thou Samphear v. Garland (April 24, 2023) No.  22-60111 might be helpful to some readers.

A waiver under section 237(a)(1)(H) of the Act is available for aliens who are deportable under section 237(a)(1)(A) of the Act (inadmissible at time of admission) based on fraud or misrepresentation at the time of admission to the United States under section 212(a)(6)(C)(i) of the Act (fraud or willful misrepresentation of a material fact).  Congress provided this waiver to prevent the breakup of families.  See INS v. Errico, 385 U.S. 214 (1966).

An applicant for the 237(a)(1)(H) waiver must establish:

1. the applicant is a spouse, parent, son or daughter of a United States citizen or lawful permanent resident; and
2. was in possession of an immigrant visa or equivalent document; and
3. was otherwise admissible at the time of entry, except for lack of a labor certificate under section 212(a)(5)(A) of the Act or lack of a proper immigrant document under section 212(a)(7)(A) of the Act which was a direct result of the fraud or misrepresentation.  Matter of Roman, 19 I&N Dec. 855 (BIA 1988); or
4. the applicant is an abused spouse who is a self-petitioner.

A waiver under section 237(a)(1)(H) of the Act will waive deportation based on any ground of inadmissibility arising from the fraud or misrepresentation that occurred at the time of admission.  Matter of Anabo, 18 I&N Dec. 87 (BIA 1981).  Even where the DHS does not allege fraud, the BIA has held that a waiver under section 237(a)(1)(H) can be applied to waive inadmissibility under section 212(a)(7)(A)(i)(I) for lack of a valid immigrant visa or entry document.  Matter of Fu, 23 I&N Dec. 985 (BIA 2006).  In Matter of Fu, the respondent became ineligible for his immigrant visa due to the demise of his father (the visa petitioner) before the respondent was admitted with the immigrant visa.

A waiver under section 237(a)(1)(H) of the Act is not available:   

1. to waive fraud committed to procure adjustment of status.  Matter of Connelly, 19 I&N Dec. 156 (BIA 1984);
2. to waive inadmissibility arising from a fraudulent marriage.  Matter of Matti, 19 I&N Dec. 43 (BIA 1984);
3. to waive a removal ground based on Nazi persecution described under section 237(a)(4)(D) of the Act;
4. in rescission proceedings.  Matter of Pereira, 19 I&N Dec. 169 (BIA 1984).

Once an applicant establishes statutory eligibility for this waiver, the waiver application may be granted or denied in the exercise of discretion.   See Matter of Tijam, 22 I&N Dec. 408, at 412-14 (BIA 1998).

The late Justice, Antonin Scalia, delivering a unanimous decision for the United States Supreme Court, addressed the contention that the portion of section 237(a)(1)(H)(i)(II) of the Act “requiring the alien to be ’otherwise admissible’—that is, not excludable on some ground other than the entry fraud—precludes the Attorney General from considering the alien's fraudulent entry at all.”  INS v. Yueh-Shaio Yang, 519 U.S. 26, at 30 (1996).  

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