Section 237(a)(1)(H) Waiver

The provisions of section 237(a)(1) of the Act relating to the removal of an alien on the ground that she was inadmissible at the time of admission as an alien described in INA Section 212(a)(6)(C)(i) for fraud or willful misrepresentation of a material fact at the time of admission, whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien who meets the requirements under section 237(a)(1)(H)(i) or (ii) of the Act. The Board of Immigration Appeals (“Board” or “BIA”) has also found that INA Section 237(a)(1)(H) authorizes a waiver for charges of inadmissibility under INA Section 212(a)(7)(A)(i)(I), for a lack of a valid visa or entry document. Matter of Fu, 23 I&N Dec. 985, 988 (BIA 2006). The Board has recognized that Congress’s intent in enacting INA Section 241(a)(1)(H) [now INA Section 237(a)(1)(H)] was to foster, in appropriate cases, the unity of families composed, in part, of U.S. citizens or LPRs. Matter of Tijam, 22 I&N Dec. 408, 416-17 (BIA 1998); Matter of Aldecoaotalora, 18 I&N Dec. 430, 431 (BIA 1983).

An alien meets the requirements of section 237(a)(1)(H)(i) of the Act if she is the spouse, parent, son, or daughter of a citizen of the U.S. or of an alien lawfully admitted to the U.S. for permanent residence. INA Section 237(a)(1)(H)(i)(I). However, the alien must also have been in possession of an immigrant visa or equivalent document and have been otherwise admissible at the time of such admission, except for the grounds of inadmissibility specified under INA Section 212(a)(5)(A) (not in possession of a labor certification) and (7)(A) (not in possession of a valid immigrant visa or other required documents or whose visa has was not issued in compliance with section 203 of the Act), which were a direct result of that fraud or misrepresentation. INA Section 237(a)(1)(H)(i)(II).

An alien meets the requirements of section 237(a)(1)(H)(ii) of the Act if she qualifies for classification under INA Section 204(a)(1)(A)(iii)-(iv) or (B)(ii)-(iii). An alien qualifies for classification under INA Section 204(a)(1)(A)(iii)-(iv) if the alien is a spouse, child, or parent of a U.S. citizen and the alien or her child was battered or subjected to extreme cruelty perpetrated by the alien’s spouse or intended spouse. An alien qualifies for classification under INA Section 204(a)(1)(B)(ii)-(iii) if the alien is the spouse or child of a lawful permanent resident of the U.S. and the alien or her child has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse. Other conditions also apply to the granting of a waiver under INA Section 237(a)(1)(H)(ii). See INA Section 204(a)(1)(A)(iii)-(iv) and (B)(ii)-(iii).

A waiver of removability for fraud or misrepresentation granted under section 237(a)(1)(H) operates to waive deportation based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation. INA Section 237(a)(1)(H); see also Matter of Sosa-Hernandez, 20 I&N Dec. 758, 760-761 (BIA 1993) (finding that a waiver of deportability under section 241 of the Act [now INA Section 237(a)(1)(H)] waives not only the exclusion ground but also the underlying fraud and renders the waiver recipient an LPR from the time of his initial entry).

Both sham marriages and sham divorces obtained for the purpose of qualifying for preference under section 203(a) of the Act do not automatically disqualify a respondent from relief under the waiver. See Matter of Koloamantagi, 23 I&N Dec. 548, 552 (BIA 2003) (holding that marriage fraud does not bar a respondent from 237(a)(1)(H) relief); Matter of Aldecoaotalora, 18 I&N Dec. at 431 (holding that a divorce that is obtained for the purpose of qualifying for preference status under section 203(a)(2) of the Act [now INA Section 203(a)(2)(B)], and in which the “former” husband and wife continue to live in what is, by all appearances, a marital relationship, is a sham divorce and should not be recognized for immigration purposes as qualifying the applicant under INA Section 203(a)(2)).

In order for an alien to demonstrate that she merits a waiver under INA Section 237(a)(1)(H), she must first establish that she is statutorily eligible. Matter of Tijam, 22 I&N Dec. at 412. Once her eligibility has been demonstrated, she must then show that she merits discretionary relief. Id. In exercising his discretion under section 237(a)(1)(H) of the Act, the Attorney General is not limited in the factors that he may consider in determining whether relief should be granted. INS v. Yueh-Shaio Yang, 519 U.S. 26, 30 (1996); Matter of Tijam, 22 I&N Dec. at 416. The Board has held that the Attorney General’s decision “whether to exercise discretion favorably necessitates a balancing of an alien’s undesirability as a permanent resident with the social and humane considerations present.” Matter of Tijam, 22 I&N Dec. at 412. Adverse factors that may be considered include the nature and underlying circumstances of the fraud or misrepresentation involved; the nature, seriousness, and recency of any criminal record; and any other additional evidence of the alien’s bad character or undesirability as an LPR. Id. at 412, 417 (holding that the statute was intended to afford relief to an alien whose equities outweighed both the initial fraud and other fraud arising from that initial fraud). Favorable factors include family ties in the U.S.; residence of a long duration in this country, particularly where it commenced when the alien was young; evidence of hardship to the alien 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 alien’s good character. Id. at 412-413.

A finding of false testimony given during the course of a hearing in which INA Section 237(a)(1)(H) relief is sought is an “extremely serious adverse factor.” Matter of Tijam, 22 I&N Dec. at 414. Moreover, the BIA has held that the alien’s initial fraud must be considered in determining whether to exercise discretion under section 237(a)(1)(H) of the Act. Id. at 417 (declining to follow Matter of Alonzo, 17 I&N Dec. 292 (Comm’r 1979), where the Commissioner found that obtaining a visa by fraud or misrepresentation should not be held as an adverse factor).


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