Federal Court Expands Fraud Waiver

By Attorneys Robert L. Reeves and Jeremiah Johnson

Last month Reeves & Associates won a significant case before the Ninth Circuit Court of Appeals expanding eligibility for immigrants who had committed marriage fraud to get their conditional green card and now face deportation for failing to remove their conditional permanent resident status.  The precedent case, Vasquez v. Holder, held that an immigrant is eligible to apply for a fraud waiver under Section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”) when their conditional permanent resident status was terminated because the Government found marriage fraud.  This expansion of the 237(a)(1)(H) waiver gives new relief and new hope to many immigrants who now face separation from their families here in the United States for a mistake they may have made in the past. 

Under immigration laws, a conditional green card is granted to spouses of U.S. citizens who have been married less than 2 years on the date of the approval which is usually the interview date. This conditional status can only be removed by a joint petition or by a waiver under INA § 216(c)(4) if the joint petition cannot be filed.  If the United States Citizen and Immigration Services (USCIS) determine that the qualifying marriage was entered into in good faith, it will approve the joint petition, remove the conditional status, and grant the permanent resident status. However, if the USCIS finds that the marriage was entered into to avoid immigration laws (i.e. a sham marriage) then the USCIS deny the joint petition, terminate the conditional status and place the immigrant in removal proceedings.   

Under Vasquez v. Holder, the courts have now recognized that a 237(a)(1)(H) waiver can waive the ground of deportation as a result of USCIS’s termination of an immigrant’s conditional resident status because of marriage fraud.  It is important to note that the Court recognized that the 237(a)(1)(H) waiver can only cure the ground of deportation “relating to the removal of aliens.”  As such, if an immigrant is removable for a separate ground, for example overstaying their original visitor visa, then the fraud waiver alone will not prevent the Government from removing them from the United States.  The Court went on to explain that where the basis for the termination of conditional permanent residence is that the marriage is not bona fide then the termination of status and corresponding ground of deportation is “related to” the ground that they were inadmissible at the time of admission for procuring their admission by fraud.  In other words, aliens subject to removal for such a termination are eligible for a 237(a)(1)(H) fraud waiver.

Pursuant to INA § 237(a)(1)(H), the Attorney General can waive certain misrepresentations (including marriage fraud) which will cure the invalid visa as a result of the misrepresentation made at the time of admission to the United States.  Moreover, the waiver is available whether the misrepresentation was innocent or not.  Looking at the language of INA § 237(a)(1)(H) and to the legislative history, Congress authorized a waiver for the “additional ‘grounds of inadmissibility directly resulting from such fraud or misrepresentation’ that are subject to the waiver.”  The waiver is available to immigrants who are the spouse, parent, son or daughter of a citizen of the United States or of an alien lawfully admitted for permanent residence. 

However, simply establishing the appropriate qualifying relationship will not ensure the waiver will be granted.  The immigrant will also need to establish he merits a favorable exercise of discretion based on such factors as family ties within the United States; residence of a long duration in this country; evidence of hardship to the immigrant or his family if deportation occurs; a stable employment history; the existence of property or business ties; evidence of value and service to the community; and other evidence of the immigrant’s good moral character.  As with any court case, it is necessary to present sufficient documentary evidence and oral testimony to convince the Immigration Judge that the alien is eligible and deserving for that relief.  The evidence must clearly convince the Immigration Judge that the alien meets all the elements for the relief as set forth in the Immigration and Nationality Act. The alien must also convince the court to exercise favorable discretion and grant the relief by presenting additional evidence to show the Judge why, despite having committed fraud, he or she should be given a second chance at a life in America. 

What makes a waiver under INA § 237(a)(1)(H) unique is that an immigrants can only apply for a waiver in removal proceedings before an Immigration Judge.  As such, the immigrant must be facing deportation, which not only can be scary, but is often complicate.  Fortunately, an immigrant has a right to an attorney in removal proceedings to assist them in preparing a well documented and approval waiver request.  It is also important to note that because the waiver cures the original ground of inadmissibility, if granted, the immigrant can proceed to naturalize and become a United States citizen and petition his family. 

Reeves & Associates has successfully represented hundreds of immigrants with INA § 237(a)(1)(H) waivers not only before the immigration courts, but also the Board of Immigration Appeals and the federal courts.  Vasquez v. Holder is an important case, and Reeves & Associates is proud to be leading the fight for immigrants to remain in the United States with their families.  For more information on waivers for misrepresentation and representation in immigration court you can make a visit online at www.immigrationexperts.tv.