Section 237 Deportability Statutes (237(a)(1): Aliens Inadmissible at the Time of Entry/AOS and Status Violators)

 

Introduction of Section 237 of the Immigration and Nationality Act

Section 237 Deportability StatutesSection 237 of the Immigration and Nationality Act (INA), codified as 8 U.S. Code 1227, is titled “Deportable aliens.” This section provisions for the deportability of aliens who have been admitted into the United States. In addition to listing the deportability provisions, section 237 also lists waivers applicable to many of these provisions. In this article, we will provide a brief overview of section 237(a)(1) relating to aliens “[i]nadmissible at time of entry or of adjustment of status or [who] [violate] status.” This section will cover both the deportability provisions and the associated waivers, where applicable. To learn about the other parts of section 237, please see our collection of articles:

  • Criminal Deportability Grounds [see article]
  • Document-Related Deportability Grounds [see article]
  • False Claim of U.S. Citizenship [see article]
  • Security and Related Grounds [see article]
  • Public Charge [see article]
  • Unlawful Voters [see article]
  • Special Cases for Diplomats, Special Immigrant Juveniles, and T and U Applicants [see article]

The forthcoming provisions apply to any alien “in and admitted to the United States.” The statute explicitly includes alien crewman within section 237.

Please see the following links for the text of section 8 U.S.C. 1227 [link; PDF version]. Please note that in this article, we will be using the INA numbering (237) instead of the U.S. Code numbering (1227). However, the subsections after the section number are identical in this article and in the U.S. Code (e.g., INA 237(a)(1)(A) refers to the same provision as 8 U.S.C. 1227(a)(1)(A)).

A. Inadmissible Aliens

Section 237(a)(1)(A) provides that an alien who was inadmissible at the time of entry or adjustment of status within at least one class of aliens inadmissible by the law existing at such time is deportable. The inadmissibility provisions are found broadly in section 212 of the INA. Because an inadmissible alien is ineligible for admission or for adjustment of status, a finding that an alien was inadmissible at the time of entry or adjustment of status will render the alien deportable and subject to removal.

B. Present in Violation of the Law

Section 237(a)(1)(B) provides that an alien who is present in the United States in violation of section 237 or any other provision is deportable. This provision also includes any alien whose nonimmigrant visa (or other document authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i). In general, this provision renders removable any alien who is present in the United States without authorization.

Please read our full article about section 221(i) to learn about visa revocations [see article]. To learn about how the Department of Homeland Security (DHS) currently exercises prosecutorial discretion with regard to aliens present in violation of the law, please see our full article on the current civil enforcement priorities [see article].

C. Aliens Who Have Violated Nonimmigrant Status or Condition of Entry

Section 237(a)(1)(C) has two parts providing for the removal of aliens who violate their nonimmigrant status or other conditions of entry.

First, section 237(a)(1)(C)(i) renders deportable any alien who is admitted as a nonimmigrant and who fails to maintain the nonimmigrant status in which he or she was admitted or to which it was changed under section 248 of the INA. An alien who in nonimmigrant status who fails to comply with the conditions of any such status is also removable.

Please see our full article on change of nomimmigrant status to learn more about the rules surrounding section 248 [see article].

Section 237(a)(1)(C)(ii) renders removable any alien who fails to comply with the terms, conditions, and controls that were imposed under section 212(g) of the INA, which provides for inadmissibility on health or related grounds. Such failure must be certified by the Secretary of Health and Human Services. Please see our full article to learn more about section 212(g).

D. Termination of Conditional Permanent Residence

Section 237(a)(1)(D)(i) provides that an alien who procured permanent resident status on a conditional basis and who then has such status terminated is deportable. There are two situations in which an alien becomes a conditional permanent resident rather than a lawful permanent resident without conditions. Firstly, under section 216, certain aliens procure conditional permanent resident status through marriage to a U.S. citizen or permanent resident. Section 216 also applies to any derivative children of the alien spouse who obtain status as a result of the parent's marriage. Secondly, under section 216A, an alien (and his or her spouse or children) who obtains status through the employment-based fifth preference category (EB5) for certain alien investors and entrepreneurs becomes a conditional permanent resident rather than a lawful permanent resident without conditions.

Section 237(a)(1)(D) refers generally to the failure of an alien to have the conditions removed on his or her permanent residence within the two-year time frame from the date on which the alien became a permanent resident. The rules regarding the removal of conditions are found in sections 216 and 216A for spouses and entrepreneurs, respectively. Please see our article about the removal of conditions for status derived through marriage [see article]. For even more information, please see our category on the removal of conditions to learn more about issues involving this subject [see category].

Section 237(a)(1)(D)(ii) exempts from being subject to removal an alien who qualifies for a hardship waiver under section 216(c)(4). Section 216(c)(4) provides waivers to certain alien spouses and children who would otherwise be unable to have the conditions removed from permanent resident status. Please see our full article on section 216(c)(4) to learn about when an alien may be eligible to have the conditions removed from his or her status without meeting the joint-filing and interview requirements for the removal of conditions [see article]. Furthermore, our Victims of Violence section contains articles that will be instructive where the spouse or child was battered or subjected to extreme cruelty [see category].

E. Smuggling

Section 237(a)(1)(E)(i) provides for the deportability of any alien who, prior to the date of entry, at the time of the date of entry, or within five years of the date of any entry, knowingly encouraged, induced, assisted, abetted, or aided any other alien to enter the United States in violation of the law. Accordingly, an alien who tries to help other aliens enter the United States without legal authorization will be subject to removal.

Section 237(a)(1)(E)(iii) offers a limited waiver from the deportability provision in clause (i). This provision allows for the Attorney General, in his or her discretion for humanitarian purposes, to assure family unity, or because it is otherwise determined to be in the public interest, to waive deportability under section 237(a)(1)(E)(i) but only if, first, the deportable alien had been admitted for permanent residency and, second, the person the alien encouraged, induced, assisted, abetted, or aided to enter the United States without authorization was at that time of the act his or her own spouse, parent, son, or daughter. It is important to note that this waiver is purely discretionary, and it does not offer a generalized exception for a permanent resident to attempt to smuggle his or her spouse, parent, son, or daughter into the United States.

Finally, section 237(a)(1)(E)(ii) offers a limited but total exception to clause (i). Clause (ii) provides that clause (i) shall not apply to the spouse or unmarried child of a ” legalized alien” (meaning an alien who benefited from the old legalization provision in the Immigration Reform and Control Act of 1986) who was, first, physically present in the United States on May 5, 1988, and, second, who is seeking admission as an immediate relative under section 203(a)(2) of the INA if, the alien had before May 5, 1988, induced, assisted, abetted, or aided his or her own spouse, parent, son, or daughter to enter the United States without legal authorization. It is important to note that this exception is very limited, and any alien who is not covered by clause (ii) who has smuggled his or her own spouse, parent, son, or daughter into the United States will be subject to removal unless he or she is granted a waiver.

F. [Repealed]

Section 237(a)(1)(F) has been repealed, and is therefore inoperable.

G. Marriage Fraud

Section 237(a)(1)(G) provides for the deportability of an alien who is found to have procured his or her status through a fraudulent marriage, that is, a marriage that was entered into for purpose of circumventing the immigration laws to procure immigration benefits. The provision includes aliens who procured a visa or other documentation to be in the United States within the meaning of section 212(a)(6)(C)(i) (covering inadmissibility for fraud or misrepresentation of a material fact for purpose of procuring immigration benefits) who did so through a fraudulent marriage. The statute provides two clauses to describe aliens who are removable for marriage fraud.

Firstly, section 237(a)(1)(G)(i) provides for the deportability of an alien who enters procures an immigrant visa or other documentation to enter the United States on the basis of a marriage entered into less than two years prior to such admission where the marriage is judicially annulled or terminated within two years subsequent to such admission. However, an alien may establish that he or she is not subject to section 237(a)(1)(G)(i) by proving, to the satisfaction of the Attorney General, that the marriage was not entered into in order to evade the immigration laws.

Secondly, section 237(a)(1)(G)(ii) renders deportable any alien who has failed or refused to fulfill his or her marital agreement where the Attorney General determines that such agreement was entered into primarily for the purpose of procuring the alien's admission as an immigrant.

The deportability grounds for marriage fraud cover certain marriage fraud cases where a marriage that was entered into shortly before an alien procured status is terminated within two years, or where an alien fails to fulfill a marital agreement. Please see our general article on marriage fraud [see article] and our article about the the consequences of marriage fraud [see article] to learn general rules about marriage fraud and demonstrating the bona fides of a marriage.

H. Waiver Authorized for Certain Misrepresentations

Section 237(a)(1)(H) offers a limited waiver to certain aliens who are deportable for having been inadmissible at the time of entry or adjustment of status under section 237(a)(1)(A) [see section]. This waiver is limited because it only applies to aliens who were inadmissible for fraud or misrepresentation of a material fact to procure immigration benefits under section 212(a)(6)(C)(i). Accordingly, this means that section 237(a)(1)(H) can often also be applied to an alien subject to removal for marriage fraud under section 237(a)(1)(G)(i)-(ii). The section contains two clauses describing the situations in which the Attorney General, in his or her discretion, may waive deportation for an alien subject to removal for having been inadmissible at the time of entry or adjustment of status for fraud or misrepresentation of a material fact. The Attorney General has such discretion whether the fraud or misrepresentation as “willful or innocent.” If the waiver is granted, the waiver will not only waive the alien's removal but also the underlying inadmissibility resulting directly from the fraud or misrepresentation.

The first case in which an alien may be eligible for a waiver is found in section 237(a)(1)(H)(i). First, the alien must be the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident. Secondly, such alien must have been in possession of an immigrant visa or equivalent document at the time of entry or adjustment of status and must have been otherwise admissible at such time except for the inadmissibility grounds found in section 212(a)(5)(A) (relating to lack of labor certification) or (7)(A) (not in possession of valid immigration documents) where being subject to such grounds was a direct result of the fraud or misrepresentation.

The second case in which an alien may be eligible for a waiver is described in section 237(a)(1)(H)(ii). Under this provision, a Violence Against Women Act (VAWA) self-petitioner will be eligible for a section 237(a)(1)(H) waiver. Please see our articles on VAWA self-petitioning for battered spouses [see article], children [see article], and parents [see article].

However, section 237(a)(1)(H), excludes any alien who might otherwise be eligible for the waiver if the alien is also deportable under section 237(a)(4)(D), which describes certain aliens who are deportable for having participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing as described in section 212(a)(3)(E)(i)-(iii).

Please see our article about the Board of Immigration Appeals (BIA) precedent decision in the Matter of Tima, 26 I&N Dec. 839 (BIA 2016) [PDF version], to read about an important Board precedent on the section 237(a)(1)(H) waiver [see article]. In this decision, the Board held that section 237(a)(1)(H) cannot waive removability under section 237(a)(1)(A) for a conviction for a crime involving moral turpitude (CIMT) even where the CIMT conviction was for an offense involving fraud or misrepresentation of a material fact that rendered the alien inadmissible at the time of his or her entry or adjustment of status (in the Matter of Tima, the CIMT conviction was a conviction for marriage fraud).

Section 212(i) of the INA contains a related waiver of inadmissibility for fraud or misrepresentation of a material fact. Please see our full article to learn about the corresponding inadmissibility waiver [see article].

Conclusion

Section 237(a)(1) contains a variety of deportability provisions and waivers. In general, it is crucial for aliens, both at the time of entry or adjustment of status and while in the United States on status, to understand the rules for maintaining lawful status. Even if an alien may be eligible for a waiver of a provision of section 237(a)(1), such waivers are discretionary in nature, and the alien may have a difficult time establishing that he or she merits the favorable exercise of discretion. If an alien is charged as removable under any provision of section 237, he or she should consult with an experienced immigration attorney immediately for a full case evaluation.