Section 237 Deportability Statutes: Inadmissible at time of entry or of adjustment of status or violates status

 

Introduction

Section 237 of the Immigration and Nationality Act (INA) is titled “deportable aliens.” As the name suggests, section 237 contains deportability provisions for aliens who are in and have been admitted to the United States. In addition, section 237 also contains several waivers of deportability and exceptions from specific deportability grounds.

In this article, we will examine the deportability provisions found in section 237(a)(1) of the INA. This section, titled “Inadmissible at time of entry or of adjustment of status or violates status,” contains deportability provisions that relate to specific violations of the immigration laws. To learn about other categories of deportability provisions in section 237, please see the list below:

Fraud or Misrepresentation

Inadmissible at the Time of Entry or of Adjustment of Status or Violates Status

In the foregoing subsections, we will examine the deportability provisions of section 237(a)(1) of the INA. This article is generally intended to provide a summary of several broad deportability provisions. Where applicable, we will provide links to more detailed articles addressing aspects of specific sections of section 237(a)(1).

A. Inadmissible Aliens

Under section 237(a)(1)(A) of the INA, “[a]ny alien who at the time of entry or adjustment of status was within one or more classes of aliens inadmissible by the law existing at such time is deportable.”

Section 237(a)(1)(A) is one of the most common deportability provisions. In effect, if an alien is determined to have been inadmissible at the time he or she was admitted into the United States (or at the time the alien entered under previous laws) or adjustment of status, he or she is deportable under section 237(a)(1)(A). The primary limitation on section 237(a)(3)(A) is that the alien must have been inadmissible under the laws in effect at the time of his or her entry or adjustment of status. Furthermore, section 237(a)(1)(A) does not encompass conduct by an alien that would fall under an inadmissibility provision if the conduct occurred after his or her entry or adjustment of status.

Section 237(a)(1)(A) is prevalent in cases where an alien procures his or her admission or adjustment of status through fraud or misrepresentation (including marriage fraud). In some cases, it may be a secondary charge in removal proceedings. The following is a small selection of cases we have examined which reference section 237(a)(1)(A):

  • Matter of D-R-, 27 I&N Dec. 105 (BIA 2017) [see article] - 212(a)(6)(C)(i)
  • Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017) [see article] - 212(a)(6)(C)(i)
  • Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017) [see article] - 212(a)(6)(C)(i)
  • Matter of Tima, 26 I&N Dec. 839 (BIA 2016) [see article] - 212(a)(6)(C)(i)
  • Matter of Villalobos, 26 I&N Dec. 719 (BIA 2016) [see article] - 212(a)(2)(A)(i)(II)

The following are articles which specifically discuss section 237(a)(1)(A) in different contexts:

  • Discussion of when a returning lawful permanent resident is considered to be an applicant for admission [see section]
  • Public Charge and Naturalization [see section]

B. Present in Violation of the Law

Section 237(a)(1)(B) of the INA covers “[a]ny alien who is present in the United States in violation of [section 237] or any other law of the United States, or whose nonimmigrant visa (or other documentation authorizing admission into the United States as a nonimmigrant) has been revoked under section 221(i) of [the INA]…”

Section 237(a)(1)(B) applies broadly to any alien who is present in the United States in violation of the law. This provision is used often against individuals who enter without inspection or nonimmigrants who remain in the United States after their status expires. In Matter of Ruis, 18 I&N Dec. 320, 322 (BIA 1982) [PDF version], the Board of Immigration Appeals (BIA) held that the similar former section 241(a)(2) applied even if “an alien may have been admissible had he properly presented himself for inspection or that he was subsequently inspected and permitted to enter.”

Section 221(i) refers to visa revocations by the U.S. Department of State (DOS). An alien whose visa is revoked under section 221(i) is subject to removal under section 237(a)(1)(B). Please see our full article on visa revocations to learn more about this subject [see article].

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

Section 237(a)(1)(C) contains two clauses outlining distinct deportability provisions for aliens who have violated nonimmigrant status or conditions of entry.

i. Nonimmigrant status violators

First, section 237(a)(1)(C)(i) renders removable “[a]ny alien who was admitted or who has failed to maintain the nonimmigrant status in which the alien was admitted or to which it was changed under section 248 [of the INA], or to comply with the conditions of any such laws…”

In short, if an alien violates his or her nonimmigrant status, he or she is subject to removal from the United States. For this reason, it is crucial for any nonimmigrant to fully understand the rules of his or her status. For example, categories that are not employment authorized (e.g., B1, B2, and Visa Waiver Program visitors) must refrain from engaging in unauthorized employment. A nonimmigrant with specific questions about the rules of his or her status should always seek the counsel of an experienced immigration attorney. To learn about change of nonimmigrant status as outlined in section 248 of the INA, please see our full article on the subject [see article].

To learn about maintaining status in the most common nonimmigrant visa categories, please see our categories on travel [see category], work [see category], and student [see category] nonimmigrant visas. Our sections on victims of violence immigration [see category] and investment immigration [see category] also contain information about certain nonimmigrant visa categories. We will add further links to this section as we publish more articles on the subject.

ii. Violators of conditions of entry

Section 237(a)(1)(C)(ii) renders deportable “[a]ny alien whom the Secretary of Health and Human Services certifies has failed to comply with terms, conditions, and controls that were imposed under section 212(g)…”

Section 212(g) of the INA provides for “[b]onds and conditions for admission of alien inadmissible on health-related grounds” under section 212(a)(1)(A) of the INA. Section 212(g)(1) may cover the spouse and/or unmarried child(ren) of a U.S. citizen, lawful permanent resident, or alien who has not yet been issued an immigrant visa; the parent of a U.S. citizen, lawful permanent resident, or alien who has not yet been issued an immigrant visa; or a VAWA self-petitioner.

Section 212(g)(2) includes the bonds and conditions for admission involving vaccines. Please see our full article on the section 212(g)(2) to learn more about this subject [see article].

Finally, section 212(g)(3) provides for a discretionary bond and conditions for admission for certain aliens inadmissible under section 212(a)(1)(A)(iii) (certain physical and mental disorders).

D. Termination of Conditional Permanent Residence

Section 212(a)(1)(D)(i) provides for the removability of an alien whose conditional permanent resident status is terminated. Section 216 of the INA provides for conditional permanent resident status for certain alien spouses, sons, and daughters. Section 216A provides for conditional permanent resident status for certain alien entrepreneurs, spouses, and children. In general, holders of conditional permanent resident status must apply for the removal of conditions from status within two years of admission. Please see our website's full section on the removal of conditions for more information on this subject [see category]. We cover immigration for souses in Family Immigration [see category] and immigration for entrepreneurs in Investment Immigration [see category]. In the case of an alien spouse, he or she must establish that the marriage was bona fide at the time it was entered into in order to be eligible for the removal of conditions.

Section 212(a)(1)(D)(ii) provides for a limited exception from section 212(a)(1)(D)(i) deportability. An alien who is eligible for a “hardship waiver” under section 216(c)(4) is not subject to deportability. Section 216(c)(4) hardship waivers apply only to those who received conditional permanent resident status through marriage. It covers the following situations: (A) aliens who would incur extreme hardship if removed; (B) aliens whose marriage was terminated (other than through the death of the spouse) and the alien was not at fault for failing to meet the requirements for the removal of conditions; or (C) aliens who entered into a marriage in good faith and the alien and/or his or her child were then battered or subjected to extreme cruelty by the U.S. citizen or permanent resident spouse.

To learn about waivers of the joint interview requirement for the removal of conditions for an alien spouse, please see our full article on the issue [see article]. We discuss the meaning of “battery” and “extreme cruelty” in our selection of articles on the Violence Against Women Act (VAWA) in immigration law [see category].

E. Smuggling

Section 237(a)(1)(E) contains the deportability provision for alien smuggling. This statute contains three clauses with one covering the deportability provision, one providing for an exception, and one authorizing a limited waiver of removability. We will examine each clause in turn in the following subsections.

i. In general

Section 237(a)(1)(E)(i) renders deportable “[a]ny alien who (prior to the date of entry, at the time of entry, or within 5 years of the date of entry) knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or try to enter the United States in violation of the law…”

Section 237(a)(1)(E)(i) thus reaches an alien who engaged in alien smuggling both prior to entry and at the time of entry. In addition, it also renders an alien removable if he or she engages in alien smuggling within 5 years of the date of entry. Interestingly, the 5-year limitation after the date of entry makes section 237(a)(1)(E)(i) narrower than its corresponding inadmissibility provision, section 212(a)(6)(E)(i), which covers alien smuggling occurring at any time. For purpose of section 237(a)(1)(E)(i), alien smuggling involves “knowingly” encouraging, inducing, assisting, abetting or aiding any other alien to enter the United States in violation of the laws.

In Matter of Martinez-Serrano, 25 I&N Dec. 151, 153 (BIA 2009) [PDF version], the Board recognized that section 237(a)(1)(E) does not require a conviction. However, the government may rely upon a conviction in order to establish that an alien is removable for alien smuggling. Id. The INA itself contains several criminal (as opposed to civil immigration) provisions for alien smuggling. For example, Matter of Martinez-Serrano involved section 275 of the INA. Id. at 152 n.1. The Board held that a conviction for aiding and abetting another alien to try to enter the United States is sufficient to establish by “clear and convincing evidence” that an alien is removable under section 237(a)(1)(E)(i). Id. at 154. We briefly discussed another criminal provision for alien smuggling, section 274(a)(2)(A), in our article on Iqbal v. Bryson, 604 F.Supp. 2d 822 (E.D. Va. 2009) [see article].

ii. Special rule in the case of family reunification

Section 237(a)(1)(E)(ii) provides for a limited waiver for those eligible for family reunification benefits under section 301(b)(1) of the Immigration Act of 1990. This waiver applies to an alien eligible for such benefits who, “before May 5, 1988, has encouraged, induced, assisted, abetted, or aided only the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of the law” and who:

  • Was physically present in the United States on May 5, 1988; and
  • Is seeking admission as an immediate relative or under section 203(a)(2) of the INA, section 112 of the Immigration Act of 1990, or benefits under section 301(a) of the Immigration Act of 1990.

It is important to note that this provision was limited to cover only certain family members of legalization beneficiaries.

iii. Waiver authorized

Section 237(a)(1)(E)(iii) provides for a discretionary waiver of section 237(a)(1)(E)(i) in limited circumstances.

First, an alien may only be eligible for the waiver if he or she is a lawful permanent resident. Furthermore, the alien smuggling described in section 237(a)(1)(E)(i) must have been related to the alien's “spouse, parent, son, or daughter (and no other individual)…”

However, it is important to note that this discretionary waiver may only be granted for one of the three following reasons:

  • Humanitarian purposes;
  • To assure family unity; or
  • If it is otherwise in the public interest.

This means that section 237(a)(1)(E)(iii) does not waive every instance of a lawful permanent resident smuggling his or her spouse, parent, son, or daughter” into the United States (“smuggling” as defined in section 237(a)(1)(E)(i)”). Rather, the alien would still have to establish that he or she merits the favorable exercise of discretion for a waiver. Nonimmigrants are not eligible for the section 237(a)(1)(E)(iii) waiver.

F. [Repealed]

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

G. Marriage Fraud

Section 237(a)(1)(G) contains two separate clauses providing for the deportability of aliens who engage in marriage fraud. In both cases, the alien is considered to have “procured a visa or other documentation by fraud (within the meaning of section 212(a)(6)(C)(i)…” In the following two sections, we will examine the separate deportability clauses:

i. Determination that marriage was fraudulent within two years of admission

Section 237(a)(1)(G)(i) applies in the case of an alien who is admitted into the United States with a visa or other documentation based on marriage to a U.S. citizen or lawful permanent resident, and whose marriage is “judicially annulled or terminated” within two years of admission. There is an exception, however, to section 237(a)(1)(G)(i) for an alien who establishes to the satisfaction of the Secretary of Homeland Security “that such marriage was not contracted for the purpose of evading any provisions of the immigration laws.”

The termination of a marriage within two years of entry creates a rebuttable presumption that the marriage was a sham. An alien may submit evidence establishing that the marriage was bona fide at the time it was entered into. The alien bears the burden of establishing that the marriage was bona fide [see article]. Please see our full article on marriage fraud generally to learn more [see article].

ii. Failure to fulfill marital agreement

Under section 237(a)(1)(G)(ii), an alien is deportable if “it appears to the satisfaction of the [Secretary of Homeland Security] that the alien has failed or refused to fulfill the alien's marital agreement which in the opinion of the [Secretary] was made for the purpose of procuring the alien's admission as an immigrant.”

Section 237(a)(1)(G)(ii) applies to situations where an alien procures status through marriage only to subsequently fail to fulfill his or her marital agreement. In Nakamoto v. Ashcroft, 363 F.3d 874 (1st Cir. 2004) [PDF version], the United States Court of Appeals for the First Circuit addressed a section 237(a)(1)(G)(ii) case. Here, the Board concluded that there was, in fact, “some evidence that [the couple] intended to establish a life together at the time of marriage…” Id. at 882. However, citing to extensive evidence in the record, the First Circuit found that the alien had entered into the marriage for fraudulent purposes, specifically, to gain entry of her parents and relatives who wanted to live in the United States. Id.

However, it is worth noting that marriages with different facts can be found to be bona fide. For example, in Matter of Peterson, 12 I&N Dec. 663, 664 (BIA 1968) [PDF version] [see article], the Board held that a marriage can be bona fide even if it is not consummated.

It is important to note that an alien who is found to be removable under section 237(a)(1)(G)(ii) is considered to have obtained his or her admission based on marriage through fraud.

H. Waiver Authorized for Certain Misrepresentations

Section 237(a)(1)(H) provides for a limited waiver of deportability for an alien who is otherwise removable for having been inadmissible at the time of admission for fraud or willful misrepresentation of a material fact under section 212(a)(6)(C)(i). Accordingly, section 237(a)(1)(H) may reach section 237(a)(1)(A) provided that the alien was inadmissible for fraud or willful misrepresentation and not on some other ground, or for violation of section 237(a)(1)(G) (marriage fraud). To learn about relief from marriage fraud, please see our full article on the subject [see article].

In addition to being removable on a specified ground, the alien must meet the following requirements in order to be eligible for a section 237(a)(1)(H) waiver.

First, under section 237(a)(1)(H)(i), the alien must be the “spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for lawful permanent residence…” If the alien is not the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident, he or she will be ineligible for a section 237(a)(1)(H) waiver.

Second, if the alien satisfies section 237(a)(1)(H)(i), he or she must then also satisfy section 237(a)(1)(H)(ii). The alien must have been in possession of an immigrant visa or equivalent document at the time of his or her admission. Furthermore, he or she must have been otherwise admissible to the United States but for the fraud or willful misrepresentation, save for section 212(a)(5)(A) (labor certification) or section 212(a)(7)(A) (certain documentary requirements), at the time of admission.

There is one special case. Under section 237(a)(1)(H)(ii), a VAWA self-petitioner may also seek a section 237(a)(1)(H) waiver.

An alien who is described by section 212(a)(4)(D) (“[p]articipated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing”) is categorically barred from being granted a section 237(a)(1)(H) waiver. We discussed this bar in our articles on Matter of M-B-C-, 27 I&N Dec. 31 (BIA 2017) [see article], and Maric v. Sessions, 854 F.3d 520 (8th Cir. 2017) [see article].

It is important to remember that section 237(a)(1)(H) only waives removability based on inadmissibility at the time of admission or adjustment for fraud or willful misrepresentation of a material fact, as described in section 212(a)(6)(C)(i). In Matter of Tima, 26 I&N Dec. 839 (BIA 2016) [see article], the Board held that the section 237(a)(1)(H) waiver cannot waive removability for a crime involving moral turpitude, even if the conviction for a crime involving moral turpitude involved the same fraud or willful misrepresentation conduct (in Matter of Tima, marriage fraud).

Section 212(i) of the INA contains a similar waiver provision for inadmissibility based in section 212(a)(6)(C)(i). Please see our full article on the subject to learn more [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.