Matter of Tima, 26 I&N Dec. 839 (BIA 2016): Inapplicability of Fraud Waiver to CIMT Conviction for Immigration Fraud
Introduction: Matter of Tima, 26 I&N Dec. 839 (BIA 2016)
On November 1, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Tima, 26 I&N Dec. 839 (BIA 2016) [PDF version]. In the Matter of Tima, the Board held that section 237(a)(1)(H) of the Immigration and Nationality Act (INA), which provides a waiver from removal for aliens charged with deportability on the grounds of having been inadmissible at the time of admission under section 212(a)(6)(C)(i) (fraud or misrepresentation of a material fact to procure immigration benefits), cannot waive an alien's deportability under section 237(a)(2)(A)(i) for having been convicted of a crime involving moral turpitude (CIMT), even where the CIMT conviction is based on the underlying fraud.
In this article, we will review the case history, the Board's decision, and what the precedent may mean going forward.
Facts of the Case: 26 I&N Dec. at 839-43
The respondent, a native and citizen of Cameroon, adjusted from nonimmigrant status to conditional permanent resident status in 1994 on the basis of his marriage to a U.S. citizen.
On September 23, 1996, the respondent was convicted of making materially false statements regarding his marriage, in violation of 18 U.S.C. 1001 (1994).
In 1997, the respondent's 1994 fraudulent marriage upon which his conditional permanent resident status had been based was terminated by divorce. Later that same year, he entered into a second marriage with a U.S. citizen.
In January of 2008, the Department of Homeland Security (DHS) commenced removal proceedings against the respondent. The DHS alleged that the respondent had entered into the 1994 marriage solely for the purpose of procuring immigration benefits, with reference to his conviction for making materially false statements regarding the marriage. Furthermore, the charges were brought because the respondent had adjusted status on the basis of the sham marriage.
The DHS charged the respondent as removable under sections 237(a)(1)(G)(ii) and (2)(A)(i) of the INA. The first charge was that the respondent was removable as an alien who had committed marriage fraud, namely, misrepresentation of a material fact concerning his first marriage to procure immigration benefits. The second charge was that the respondent was removable as an alien who had been convicted of a CIMT, namely, making materially false statements about his first marriage. Both charges of deportability thus related to the same underlying fraudulent conduct for which the respondent had been convicted of in 1996. The DHS subsequently terminated the respondent's conditional permanent resident status as of September 23, 1996, and it added an additional charge under section 237(a)(1)(D)(i) relating to the respondent's failure to apply for the removal of conditions.
In proceedings, the respondent admitted that he had adjusted to the status of conditional permanent resident in 1994. However, he denied that he had been found to have committed immigration fraud and he denied that he had fraudulently entered into the first marriage for the purpose of procuring immigration benefits. Accordingly, the respondent denied the charges of deportability. However, the Immigration Judge found that the record supported the allegations against the respondent.
Later in April of 2010, the respondent filed a motion to terminate proceedings. Furthermore, the respondent argued that he was entitled to a waiver of his marriage fraud — misrepresentation of a material fact to procure immigration benefits under section 237(a)(1)(H) (which provides relief from deportability stemming from inadmissibility at the time of admission or adjustment of status for fraud or misrepresentation of a material fact to procure immigration benefits). Accordingly, the respondent argued, if he was granted a marriage fraud waiver, he would be eligible for adjustment of status based upon his current and second marriage to a U.S. citizen.
In October of 2010, the Immigration Judge denied the respondent's motion to terminate proceedings. The Immigration Judge pretermitted (omitted without mention) the respondent's application for section 237(a)(1)(H) relief because the respondent's conditional permanent resident status had been terminated and he did not have permanent resident status (which is required in order to seek section 237(a)(1)(H) relief). The Immigration Judge also held that the respondent's 1996 federal conviction for making materially false statements about his first marriage was a CIMT, and it sustained the charge that he was removable under section 237(a)(2)(A)(i) for having been convicted of that CIMT, Finally, the Immigration Judge found that the respondent was ineligible for a section 237(a)(1)(H) waiver in any case because he had not been charged with deportability under section 237(a)(1)(A) as being inadmissible at the time of adjustment of status.
In June of 2012, the Immigration Judge sua sponte (of her own accord) reopened her October 2010 order and determined that the respondent was technically entitled to waiver of the marriage fraud charge under section 237(a)(1)(G)(ii) through the waiver provision in section 237(a)(1)(H). However, the Immigration Judge did not reach the issue of whether the respondent merited the waiver because she concluded that, even if he were to be granted the waiver, he would still be removable under section 237(a)(1)(D)(i),for failure to remove conditions from permanent residency, and under section 237(a)(2)(A)(i) (for a conviction of a CIMT, namely, making materially false statements (regarding his marriage.
The respondent appealed to the BIA, but in August of 2013 the Board issued an unpublished decision denying the appeal. The Board's reasoning was based on the respondent's having failed to have the conditions on his permanent residency waived.
The respondent appealed to the U.S. Court of Appeals for the Third Circuit. He argued that the 237(a)(1)(H) fraud waiver applied to the charge of deportability— misrepresentation of a material fact to procure immigration benefits — under section 237(a)(1)(D)(i) for failure to file to have the conditions removed on his permanent residency. The respondent based this claim on the fact that his federal conviction came before the two-year anniversary of his becoming a conditional permanent resident (when he was required to apply for the removal of conditions), and that he should not have been required to file a meritless application for the removal of conditions. Furthermore, the respondent argued that the waiver should apply to the deportability charge under section 237(a)(2)(A)(i) for a CIMT conviction for making materially false statements regarding his marriage because the CIMT conviction was related to the otherwise waivable underlying fraud The respondent also argued he was eligible for a section 212(h) waiver (a waiver that may apply to a CIMT in conjunction with certain adjustment of status applications). The Third Circuit declined to reach the merits of the respondent's claims. However, it found that the Board had erred in its application of Third Circuit precedent in that the Board could not rely on the failure to apply for the removal of conditions as a basis for removal under section 237(a)(2)(D)(i), and it remanded the record to the Board to consider the respondent's eligibility for a section 237(a)(1)(H) waiver of the CIMT charge, along with the respondent's eligibility for a section 212(h) waiver of the CIMT conviction.
Issues Presented: 26 I&N Dec. at 843
The Immigration Judge determined, and the Board agreed, that the respondent was eligible to have his deportability charge of misrepresentation of a material fact to procure immigration benefits waived by section 237(a)(1)(H) of the INA. The Third Circuit instructed the Board to consider whether section 237(a)(1)(H) could also waive the charge of deportability for having been convicted of a CIMT under 237(a)(2)(A)(i), specifically because the CIMT conviction was for the underlying fraud. Finally, the Board was instructed to consider whether the respondent was otherwise eligible for a section 212(h) waiver for the CIMT conviction.
The respondent also argued for the first time that he was eligible for a waiver of the CIMT charge under the former section 212(c) of the INA. The Board would address this issue as well.
Analysis: 26 I&N Dec. at 843-46
A. Section 237(a)(1)(H) does not waive deportability under section 237(a)(2)(A)(i)
First, the Board addressed whether the fraud waiver found in section 237(a)(1)(H) could waive deportability for a CIMT conviction where the CIMT conviction is based on the underlying fraud. The respondent argued that he was eligible to have the CIMT deportability charge under section 237(a)(2)(A)(i) waived under section 237(a)(1)(H) because his CIMT conviction was for the underlying fraud. For the forthcoming reasons, the Board found that section 237(a)(1)(H) cannot waive a deportability charge for a CIMT conviction.
The Board quoted from the relevant portion of the waiver provision in section 237(a)(1)(H):
[t]he provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived…
The Board explained that “this paragraph” refers only to section 237(a)(1) of the INA. The Board noted that section 237(a)(1) addresses when an individual was inadmissible at the time of admission or adjustment of status for fraud or misrepresentation of a material fact to procure immigration benefits, but not any other ground of removal. Most notably, the plain reading of the waiver provision excludes section 237(a)(2), which addresses deportability for CIMTs.
The Board explained that section 237(a)(2)(A)(i) of the INA, which contains the deportability provision for a CIMT conviction, is “legally distinct” from the removal grounds involving fraud or misrepresentation found in section 237(a)(1). To this effect, the Board cited to the Seventh Circuit decision in Gourche v. Holder, 663 F.3d 882, 886 (7th Cir. 2011) [PDF version]. The Board explained that the significance of this point is that the respondent's eligibility for a section 237(a)(1)(H) waiver depended not on whether it could waive the underlying fraud, but rather whether it could waive removability under section 237(a)(2)(A)(i) for a CIMT conviction. Therefore, the Board found that the fact the CIMT charge was based on the respondent's underlying fraud was not relevant to his eligibility for the waiver, and that the waiver explicitly did not the CIMT charge. The Board found support for its position in Goruche and the precedent decisions in Fayzullina v. Holder, 777 F.3d 807, 815-16 (6th Cir. 2015) [PDF version] and Taggar v. Holder, 736 F.3d 886, 890-91 (9th Cir. 2013) [PDF version].
The Board noted that the “respondent's argument is further undermined by the fact that section 237(a)(2)(A)(i) includes all convictions for” CIMTs. A CIMT conviction based on fraud or misrepresentation at the time of admission or adjustment of status is just one type of CIMT conviction of many. For this reason, accepting the respondent's argument would require Immigration Judges to look at evidence regarding the respondent's specific conduct that led to the CIMT conviction to determine whether it was of the type that could be waived under section 237(a)(1)(H) (had the respondent's argument been accepted). The Board found that such a decision would be “at tension” with Supreme Court precedent found in Mathis v. United States, 136 S.Ct. 2243, 2248, 2251 (2016) [PDF version], Descamps v. United States, 133 S.Ct. 2276, 2288 (2013) [PDF version], and Moncrieffe v. Holder, 133 S.Ct. 1676, 1684 (2013) [PDF version]. The Board explained that these three decisions require that “criminal convictions must be treated as relating to the least of the defendant's actions prohibited by the relevant statute without evaluating the defendant's underlying conduct.” We discuss both Descamps [see article] on Mathis [see article] in detail on this site.
B. Eligibility for section 212(h) waiver
The Board held that the respondent was not eligible for a section 212(h) waiver “because he is not an arriving alien seeking to waive a ground of inadmissibility or an alien in removal proceedings seeking to waive inadmissibility in conjunction with an application for adjustment of status.” The Board cited to its precedent decision in the Matter of Rivas, 26 I&N Dec. 130, 132-33 (BIA 2013) [PDF version], in holding that a section 212(h) waiver is not available on a “stand-alone” basis in removal proceedings, but rather is only available in conjunction with an application for adjustment of status. The Board also held, in accordance with Rivas, that the respondent was not eligible for a nunc pro tunc (retroactive) section 212(h) waiver because such a waiver may only be sought and granted in conjunction with an application for adjustment of status. Because the respondent was not seeking a waiver in conjunction with an application for adjustment of status, the Board found that he was ineligible for a section 212(h) waiver of inadmissibility.
Please see our article to learn more about section 212(h) waivers [see article].
C. Eligibility for section 212(c) waiver
The respondent also argued that he was entitled to waiver under the old section 212(c) of the INA. The provision may still be used by certain LPRs with criminal convictions that occurred before April 1, 1997. The Board first held that, because the respondent raised the issue for the first time on remand from the Third Circuit, it was not properly before the Board.
However, the Board noted that, even if the issue had been raised before the Board, the respondent's conditional permanent resident status was terminated when he was determined to have committed marriage fraud by the Attorney General. Therefore, the respondent was no longer eligible for section 212(c) relief because his permanent resident status had already been terminated. To this effect, the Board cited to its precedent decision in the Matter of Lok, 18 I&N Dec. 101, 105-106 (BIA 1981) [PDF version], wherein it held that an alien is no longer eligible for a section 212(c) waiver subsequent to the termination of his or her permanent resident status.
Please see our recent article about the new edition of the Form I-191, Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act [see article].
Decision: 26 I&N Dec. at 846
Because the Board found that section 237(a)(1)(H) cannot waive removability under section 237(a)(2)(A)(i) for a CIMT conviction even when the conviction is based on the alien's underlying fraud, and because the respondent was not eligible for relief under section 212(h) or 212(c), the Board dismissed the respondent's appeal.
Conclusion
The Board's decision as Tima establishes as precedent that when an alien is charged as removable for both having been inadmissible for fraud or misrepresentation at the time of admission under section 237(a)(1) and for a CIMT based on that same fraud or misrepresentation under section 237(a)(2), section 237(a)(1)(H) can only waive removability under section 237(a)(1). In short, this puts an alien who is charged as removable under section 237(a)(1) and (a)(2) in an extremely precarious situation even when both of the charges are based on the same underlying conduct. The reasoning is that the waiver provision specifically refers to specific provisions of section 237 rather than to specific conduct.
As we explained in our comprehensive article on marriage fraud, the best means by which to avoid the severe immigration and potential criminal consequences of marriage fraud is to not enter into a sham marriage [see article]. An alien who enters into a fraudulent marriage, or for that matter who commits any other time of fraud in order to procure immigration benefits, will likely have very limited, if not nonexistent, avenues for seeking immigration relief [see article on inadmissibility waiver provision. Nevertheless, an alien who is charged as inadmissible or deportable for fraud or misrepresentation or any other immigration offense should consult with an immigration attorney immediately for a full case evaluation.