Maintaining Eligibility For The Misrepresentation Waiver

Over the years, I have counseled many immigrants regarding their eligibility for a waiver of “misrepresentation at entry” in deportation proceedings, which becomes necessary once an immigrant desires to bring his family to the United States. The waiver scenario typically arises when an immigrant misrepresented his or her marital status at entry into the United States, and later seeks to Naturalize, or petition a spouse and children still residing in his or her native country. The waiver is available to immigrants who are the spouse, parent, son or daughter of a U.S. citizen or green card holder, as a matter of discretion.

The waiver provision in the Immigration and Nationality Act, Section 241(a)(1)(H) has been the subject of considerable controversy. Due to favorable interpretations of the provision at the United States Court of Appeals for the Ninth Circuit, the Immigration Courts in California were instructed to consider any “repetitions” of the initial misrepresentation, e.g. statements in family petitions or Naturalization applications, as mere “extensions” of the misrepresentation at entry, such that these repetitions could not be held against the immigrant in determining eligibility for the waiver.

The United State Supreme Court, however, recently held that the Immigration Courts may hold these acts against an immigrant in deportation proceedings, to be weighed against the immigrant’s ties to the United States. In INS v. Yang, a very poorly drafted and logically inconsistent opinion, the Supreme Court appears to have reversed the Ninth Circuit’s extension rule, and raised the level of difficulty in obtaining the waiver. Nonetheless, there is much hope for many people who require a waiver, since the Supreme Court’s opinion leaves several avenues for argument open.

First, simply because any “repetitions” of a misrepresentation may be used against an immigrant, that factor alone should not be considered to outweigh the immigrants other ties to the United States. For instance, most people in this situation have extensive ties to the United States, including family, employment and community. My office has won many waiver cases over the past few years. While the rules have changed, I believe that the proper method for presenting the waiver case has not. Now, more than ever, the successful waiver applicant will require an exceptional case presentation including a fully briefed argument, and well-prepared supporting documents and witness testimony. I believe that cases will still be won if the attorney make the extra effort to overcome any arguments the INS raises against the waiver.

Secondly, I feel strongly that the Yang case contained many negative factors that are not normally present in the many of the cases I have encountered. The record in that case reflects that there were misrepresentations made up to and including the date of the hearing. An immigrant armed with an understanding of the case law on the subject is in a great position to structure the facts of his cases in the most favorable way, prior to the commencement of any hearing, such that the so-called rule of the Yang case is arguably inapplicable.

The bottom line for a person in need of a waiver is that the waiver is still available, but the rules have changed somewhat. In the face of a change in the law, an experienced and creative attorney can win your cases.