Last year, many of my readers watched with intense interest as the continued viability of the “misrepresentation waiver” of Section 241(a)(1)(H) of the Immigration and Nationality Act (INA) was called into question. I and my staff lawyers spent long hours researching and preparing for oral argument before the United States Supreme Court in Yang v. INS, a case concerning the U.S. Circuit Court of Appeals for the Ninth Circuit’s “continuing fraud doctrine.” That doctrine held that an immigrant’s repeated misrepresentation of the same facts that were misrepresented at entry, i.e. single status, could not be considered against the immigrant when an Immigration Judge is balancing the immigrant’s equities to consider eligibility for the waiver.
The Supreme Court’s decision, which went beyond the scope of the actual question presented in the case. Some people now believe that the Immigration Judge may consider repetitions of the initial misrepresentation against the immigrant, as well as the initial misrepresentation. However, The U.S. Supreme Court’s decision did not state that. First, the Court’s opinion, authored by Antonin Scalia, a second generation immigrant himself, states that the Attorney General — who supervises the INS and the Immigration Courts — may determine that the initial misrepresentation should not be considered.
Justice Scalia did not create new law in this respect, because the Attorney general, through her delegate the Board of Immigration Appeals, created a rule many years ago that the initial misrepresentation should not be considered against the immigrant when seeking a waiver of that misrepresentation. The obvious reason is that if a Judge were allowed to deny a waiver of the misrepresentation because the immigrant had committed a misrepresentation, there would be no waiver provision at all!
Furthermore, because the Immigration Judge may not consider the initial misrepresentation at entry, I believe that any repetition of that misrepresentation under usual circumstances, whether it be in relation to applications for government benefits, taxes, or even immigration forms, is much less significant. The immigrant in that position is merely repeating that he is “single” because once he has entered under such conditions, he is ‘stuck’ with that story. The problem in the Yang case was that the immigrant had committed other, unrelated misrepresentations, which caused the Supreme Court to reverse the Ninth Circuit, because the Court did not believe that the immigrant in that case should have been forgiven. Since most cases that come through my office are factually distinguishable from the Yang case, we can properly advise the Deportation Court that the Yang decision does not prevent Filipinos from obtaining a waiver.
Finally, many practitioners were concerned that Congress might preempt the Supreme Court decision and do away with the waiver provision altogether. This is not the case. When I reviewed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) signed into law by the President on September 30, 1996 I was pleased to discover that the only change to the waiver provision was its Section number. The new Section is 237(a)(1)(H) does not in any significant way change the waiver provision and it is still open to immigrants who obtained an immigrant visa by misrepresenting their marital status.