It Will Be Harder To Get 237(a)(1)(H) Fraud Waiver After BIA Decision
Some people believe that the easiest way to get a green card in the United States is through marriage to a US citizen. In reality, this is not the case. Why? It is so because if one does not have enough evidence, or made some mistakes during the process, if the marriage falls apart in the process, a person may be accused of marriage fraud with very severe consequences. It is important to remember that one who is filing for a green card based on marriage, will receive only a conditional green card if their marriage is less than 2 years old at the time of the immigration visa/green card adjudication under INA 216(b). Within 90 days of the second anniversary of such a green card, the couple needs to submit a petition to remove the conditions on the non-citizen status. This is another step in the process when the US Immigration authorities will be checking if the couple’s marriage was done only for immigration purposes, or it is real or “bona fide.”
Once a person accused by the US Immigration authorities of entering into a marriage to avoid Immigration laws, or in other words of a fraudulent marriage, the person is subject to 204 (c) INA preclusion of being sponsored by another family member, employer, self-sponsorship. There are very few solutions to such a situation, including a 237(a)(1)(H) waiver that a person may file if he/she is placed in removal proceedings. In such a case, a conditional green card holder who got the green card based on marriage, would have a chance to file for this fraud waiver if placed in removal proceedings due to the fact that he/she could not remove the condition on the green card. However, the waiver can be granted only if a person is charged with removability based on fraud.
The Ninth Circuit looked at the plain language of the waiver statute, in particular that it applies to the “provisions of this paragraph [237(a)(1)] relating to the removal of non-citizens…,” to hold that the waiver may be used to waive § 237(a)(1)(D)(i) when termination of status is based on fraud or misrepresentation (as opposed to termination upon failure to file a joint petition). Since the statute referred to “provisions of this paragraph” in the plural, the Ninth Circuit held that INA § 237(a)(1)(H) could be applied to waive any ground under § 237(a)(1). The Court found that a contrary interpretation would render the § 237(a)(1)(H) waiver inapplicable to marriage fraud cases involving conditional residents, because otherwise DHS could always charge removability under the additional ground for termination of conditional resident status, thereby preventing a conditional resident from seeking a 237(a)(1)(H) waiver simply by including 237(a)(1)(D) as a charge in addition to, or in place of, 237(a)(1)(A).
Recently, however, the Board of Immigration Appeals held that “a fraud waiver under section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(1)(H) (2018), does not waive a respondent’s removability under section 237(a)(1)(D)(i) of the INA, 8 U.S.C. § 1227(a)(1)(D)(i), where conditional permanent residence was terminated for failure to file a joint petition, a reason separate and independent from fraud. Matter of Gawaran, 20 I&N Dec. 938 (BIA 1995), aff’d Gawaran v. INS, 91 F.3d 1332 (9th Cir. 1996), reaffirmed.” Matter of Shlomo BADOR, 28 I&N Dec. 638 (BIA 2022). In Sholomo case, the respondent was placed in removal proceedings because he could not successfully remove conditions on his green card. In April 2009, the respondent was accorded conditional permanent residency on the grounds of his marriage to a United States citizen. The couple filed a joint petition to remove the conditions for residence on March 21, 2011. However, his wife later withdrew her support and the United States Citizenship and Immigration Services (“USCIS”) deemed the joint petition withdrawn in 2014.
The respondent proceeded to file a second Form I-751 with USCIS based on his marriage and sought to waive the joint petition. He argued that the marriage was entered into in good faith. The USCIS discovered that the marriage was not entered into in good faith and denied his request. His conditional permanent residency was also terminated as he was placed in a removal proceedings.
He filed before an Immigration Judge, an application for the review of the USCIS’s decision while still contending that his marriage was entered into in good faith. When evidence established that the marriage was a fraud, he requested a fraud waiver under section 237(a)(1)(H) of the INA, 8 U.S.C. § 1227(a)witness.
The respondent during the hearing also admitted that the marriage was a sham intended to fix his green card, and he could not call his wife as a witness. He reinstated his request that the Immigration Judge review the denial of a “good faith” waiver of the joint filing requirement and also sought a section 237(a)(1)(H) fraud waiver in conjunction with the “good faith” waiver. The Immigration Judge denied both waivers and ordered his removal from the United States.
The appeal was dismissed as evidence proved that the respondent’s marriage was not “bona fide” but rather entered into to “fix his green card”. But what’s more important, is tat the BIA held that the 237(a)(1)(H) waiver did not waive the removability charge based on failure to file a joint petition to remove the conditions on the green card, and if the respondent is not charged with fraud ground of removability only, the waiver will not help!
This decision puts marriage based filers in a “pickle”. Basically, if one is accused of marriage fraud at the stage of the removal of the conditional residency, he/she will never be able to receive status in the United States, or almost never (apart from a possible U visa, T visa, etc.) Removability based on fraud may be waived for non-citizens who are spouses, parents, sons or daughters of a United States Citizen, or an alien lawfully admitted to the United States. The non-citizen must be in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission, expect for the grounds of inadmissibility resulting from fraud or misrepresentation of material fact, or the lack of valid immigration documents. Section 237(a)(1)(A) of the INA provides for the waiver of removability based on fraud.
In 1986, Congress added section 216 to the INA through section 2 of the Immigration Marriage Fraud Amendments Act of 1986. This law was aimed at uncovering and deterring marriage fraud in immigration proceedings. It formed the bedrock for the 2-year conditional permanent resident status upon marriage to a United States Citizen as well as the requirement of subsequent joint petition filing to remove the conditions on residency. The Government grants the petition when it is proven that the marriage was entered into bona fide.
Can the government waive the joint petition filing?
If the marriage is found to not be bona fide, Section 216 empowers the government to terminate the conditional permanent resident status and initiate removal proceeding under Section 240 of the INA. Notwithstanding, the discretionary waiver of joint petition requirement was enshrined in Section 21(c)(4) of the INA to accommodate marriages that are entered into in good faith but fail before the end of the 2-year conditional residency period for reasons other than fraud.
In filing for a waiver of the joint petition requirement, the respondent bears the burden to establish that he or she is not at fault for failing to meet the filing requirement and that extreme hardship will result if he or she is removed from the United States. The respond also has to prove that the marriage was entered into in good faith, but has been terminated; or the marriage was entered in good faith, but he or she was subjected to battery or extreme cruelty by his spouse.
The “good faith” waiver under section 216(c)(4)(B), requires that the respondent establishes that at the time of marriage, they intended to establish a life together. However, in this case, it was proven that the marriage was the respondent’s strategy to get a green card while circumventing immigration laws.
So, as one can see the recent BIA decision closed any possible door for those who cannot establish that their marriage was in fact real.