Eleventh Circuit Precedent On 212(a)(7)(A)(i)(I) at Time of AOS and When Misrepresentation is "Willful"

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Introduction: Ortiz-Bouchet v. U.S. Atty Gen., 714 F.3d 1453 (11th Cir. 2013)

On April 23, 2013, the United States Court of Appeals for the Eleventh Circuit published a precedent decision in Ortiz-Bouchet v. U.S. Atty Gen., 714 F.3d 1353 (11th Cir. 2013) [PDF version]. The Eleventh Circuit had granted a petition for review filed by an alien who, having filed for adjustment of status, had been found to be inadmissible (I) under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA) for having not had a valid unexpired immigrant visa or other entry document at the time of admission, and (II) under section 212(a)(6)(C)(i) for fraud or willful misrepresentation of a material fact to procure any benefit under the INA.

The Eleventh Circuit held that the petitioner was not inadmissible under section 212(a)(7)(A)(i)(I) because he had not been an “applicant for admission.” This conclusion was based on the Eleventh Circuit's position that an individual who applies for adjustment of status is not covered by section 212(a)(7)(A)(i)(I).

Likewise, the Eleventh Circuit held that the petitioner was not inadmissible under section 212(a)(6)(C)(i). The Eleventh Circuit assessed the case record and determined that the petitioner was not aware of and did not authorize fraudulent documents that had been submitted on his behalf in connection with his adjustment of status application.

Both points of the Eleventh Circuit's decision in Ortiz-Bouchet are significant. First, the Eleventh Circuit reaffirmed its narrow view of the applicability of section 212(a)(7)(A)(i)(I), which constitutes an important rule for cases arising in its jurisdiction. Second, the BIA deferred to the Eleventh Circuit's reasoning on the 212(a)(6)(C)(i) point in its later precedent decision in Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec. 496 (BIA 2018) [see article], while distinguishing the facts of the case before it from those in Ortiz-Bouchet.

In this article, we will review the Eleventh Circuit's decision in Ortiz-Bouchet and how it remains relevant today on both of its main points.

Case Background

The petitioners, Kevin Ortiz-Bouchet (“Ortiz”) and Edith Malpica-Zapita (“Malpica”) had been ordered removed by an immigration judge on three grounds. First, the immigration judge determined that the petitioners (note: they were the respondents in removal proceedings, petitioners before the Eleventh Circuit) were inadmissible for not having been in possession of valid entry documents at the time of their adjustment of status. Second, the immigration judge had held that the petitioners were removable under section 237(a)(1)(A) for having been inadmissible at the time of their adjustment of status. Specifically, the immigration judge concluded that they had been inadmissible under section 212(a)(6)(C)(i) of the INA at the time of adjustment for fraud or willful misrepresentation of a material fact in order to obtain their adjustment of status. Third and finally, the immigration judge found that Malpica alone was inadmissible under section 212(a)(9)(B)(i)(II) for having sought admission into the United States within ten years of departing the United States after having been unlawfully present in the United States for one year or more (commonly known as the “ten-year bar of inadmissibility” [see article]).

The Board of Immigration Appeals (BIA) summarily affirmed the immigration judge's removal order. Subsequently, Ortiz and Malpica appealed from the BIA's decision to the Eleventh Circuit.

Eleventh Circuit Concludes That INA 212(a)(7)(A)(i)(I) Does Not Apply to Applicants for Adjustment of Status

Section 212(a)(7)(A)(i)(I) of the INA renders inadmissible any alien at the time of the application of admission “who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 211(a) of this Act [8 U.S.C 1181(a)]…”

The Eleventh Circuit concluded “that the [immigration judge] erred as a matter of law in finding Ortiz and Malpica inadmissible pursuant to [INA 212(a)(7)(A)(i)(I)].

In Lanier v. U.S. Atty. Gen., 631 F.3d 1363, 1366 (11th Cir. 2011) [PDF version], the Eleventh Circuit defined the term “admission” as not extending to applications for adjustment of status in the context of the section 212(h) waiver. There, the Eleventh Circuit reasoned that the term “admission” only covers applicants for admission into the United States, not applicants for post-entry adjustment.

In the instant case, the Government urged the Eleventh Circuit to defer to the Government's position that the term “admission” in section 237(a)(1)(A)(i)(I) does extend to post-entry adjustment of status. In support of its reading, the Government relied on Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011) [PDF version], where the Board distinguished a Cuban Adjustment Act case from the point at issue in Lanier. The Eleventh Circuit, however, held that it held in Lanier that the statutory language defining the term “admission” was unambiguous. Thus, it extended its reasoning from Lanier to section 237(a)(1)(A)(i)(I) and declined to afford deference to the Government's reading of the term “admission” in the provision.

In conclusion, because the petitioners sought adjustment from within the United States, the Eleventh Circuit held that section 237(a)(1)(A)(i)(I) did not apply to them. For this reason, it vacated the Board's order of removal entered on the basis of section 237(a)(1)(A)(i)(I).

Subsequent History on Ortiz-Bouchet's 237(a)(1)(A)(i)(I) Conclusions

The Board later referenced this portion of Ortiz-Bouchet in Matter of Chavez-Alvarez, 26 I&N Dec. 274, 277 n.1 (BIA 2014) [PDF version], reversed on other grounds by Chavez-Alvarez v. Attorney General U.S., 783 F.3d 478 (3d Cir. 2015) [see article]. In Chavez-Alvarez, the Board cited to Ortiz-Bouchet as what was then the “sole” case in which a circuit court had held that the term admission does not encompass adjustment of status in the inadmissibility context (noting that most cases on the point involved section 212(h) waivers). However, the Board distinguished the issue in Chavez-Alvarez because it involved removal charges for an aggravated felony conviction.

In 2016, the United States Court of Appeals for the Fifth Circuit joined the Eleventh in concluding that section 212(a)(7)(A)(i)(I) applies only to applicants for admission and not to nonimmigrants. Marques v. Lynch, 834 F.3d 549, 561 (5th Cir. 2016) [PDF version].

To learn about which states are covered by the Eleventh and Fifth Circuit Courts as well as all of the other circuits, please see our full article on the subject [see article].

Eleventh Circuit Holds that Petitioners Did Not Make Willful Misrepresentation

Under section 212(a)(6)(C)(i), an alien who obtains a visa, documentation, or any other benefit under the INA is inadmissible if he or she does so “by fraud or willfully misrepresenting a material fact.” In the instant case, the petitioners were charged with having been inadmissible on this basis at the time of their adjustment of status.

In removal proceedings, the immigration judge found that Ortiz, based on a recommendation, had hired an individual named Marciel Cordero to solve his and his wife's status problem. Ortiz was advised that Cordero could solve his and his wife's status issues by filing a religious petition. Cordero filed an immigrant visa petition on Ortiz's behalf which falsely claimed that Ortiz was a religious minister and included several fraudulent documents.

The Eleventh Circuit explained that in removal proceedings “Ortiz presented an un-rebutted statement that he had never seen the documents that Cordero filed and that his signature on the documents was forged.” The immigration judge found, on that basis, that Ortiz had not personally misrepresented a material fact. However, the immigration judge nevertheless found that Ortiz was removable for willfully misrepresenting a material fact because there was a presumption that he had full knowledge of the fraudulent documentation submitted by Cordero on his behalf.

The Eleventh Circuit noted that the term “fraud” is not explicitly defined in the INA. In Matter of G-G-, 7 I&N Dec. 161, 164 (BIA 1956) [see article], the Board held that fraud “consist[s] of false representations of a material fact made with knowledge of its falsity and with intent to deceive the other party.” In that same decision, the Board held that fraud requires that “[t]he [relevant] representation must be believed and acted upon by the party deceived to his disadvantage.” In Matter of Kai Hing Hui, 15 I&N Dec. 288, 290 (BIA 1975) [PDF version] [see article], the Board crafted a similar definition of “willful misrepresentation.” However, the Board held that “willful misrepresentation” does not require proof that the person to whom the misrepresentation was made was motivated to take action because of the misrepresentation and that it also does not require the “intent to deceive.”

In the instant case, the Eleventh Circuit reasoned that “willful misrepresentation is an essential element of both fraud and willful misrepresentation…” Thus, because the immigration judge did not find that Ortiz had made a willful misrepresentation, it concluded that Ortiz was not inadmissible under section 212(a)(6)(C)(i)(I).

The Government ventured two arguments against the Eleventh Circuit's ultimate conclusion. First, the Government argued that it must be presumed that Ortiz had knowledge of the fraudulent documents filed on his behalf. The Eleventh Circuit rejected this conclusion by relying on Matter of G-G-, wherein the Board held that fraud requires an actual misrepresentation. The Government also argued that defining fraud as requiring a willful misrepresentation renders the concept of fraud under section 212(a)(6)(C)(i) “superfluous.” However, the Eleventh Circuit held that where a term is “ambiguous,” such as “fraud” under INA 212(a)(6)(C)(i) — it was required to defer to the Board's interpretation.

Subsequent History in Matter of A.J. Valdez and Z. Valdez, 27 I&N Dec. 496 (BIA 2018)

The Board discussed Ortiz-Bouchet in a later precedent decision in Matter of A.J. Valdez and Z. Valdez. Like Ortiz-Bouchet, Matter of A.J. Valdez and Z. Valdez also involved a case where an individual was charged with removability for having been inadmissible at the time of entry on the basis of fraud or willful misrepresentation relating to a religious worker petition. However, the Board distinguished Matter of A.J. Valdez and Z. Valdez and Ortiz-Bouchet based on the fact that in the former case the alien had signed the pertinent documents and admitted that he was aware of other points therein. Matter of A.J. Valdez and Z. Valdez set rules for determining when an alien can rebut the presumption that he or she was aware of fraud or willful misrepresentation. To learn more, please see our article on the decision [see article] and the section of the article dealing with Ortiz-Bouchet [see section].

10-Year Bar Did Not Apply to Malpica

On the final point, the Eleventh Circuit held that the 10-year bar of inadmissibility under section 212(a)(9)(B)(i)(II) did not apply to Malpica. Its reasoning was based on an intervening change in the law. The immigration judge found that Malpica was removable under section 212(a)(9)(B)(i)(II) because she had left the United States under a grant of advance parole on July 18, 2003, after having been unlawfully present in the United States for one year or more. In between the immigration judge's decision and the Eleventh Circuit's filing of Ortiz-Bouchet, the Board published a decision in Matter of Arrabally and Yerrabally, 25 I&N Dec. 771, 779 (BIA 2012) [PDF version], wherein it held “that an alien who has left and returned to the United States under a grant of advance parole has not made a 'departure from the United States' within the meaning of [section 212(a)(9)(B)(i)(II)].”

Based on the change in law represented by Matter of Arrabally, the Eleventh Circuit vacated the immigration judge's inadmissibility finding under section 212(a)(9)(B)(i)(II).

Conclusion

Ortiz-Bouchet remains a noteworthy decision for its first two holdings.

Few circuits have directly addressed whether section 212(a)(7) applies to applicants for adjustment of status. However, in the Fifth and Eleventh Circuits, the inadmissibility provision applies only to applicants for admission and not to those who apply for post-entry adjustment of status.

The Eleventh Circuit's holding that the petitioners were not inadmissible at the time of adjustment for fraud or willful misrepresentation became more significant in light of the Board's decision in a similar case, Matter of A.J. Valdez and Z. Valdez. Although the Board distinguished the subsequent case from Ortiz-Bouchet, the wording of the decision indicates that Ortiz-Bouchet may still provide aliens with a blueprint outside of the Eleventh Circuit for rebutting the presumption of knowledge of misrepresentation or fraud in documents submitted on their behalf. However, it remains to be seen how immigration judges and the Board will apply the new BIA precedent in cases arising outside the jurisdiction of the Eleventh Circuit.

When seeking an immigrant visa or adjustment of status or fighting removal, it is crucial for an alien to work with an experienced and reputable immigration attorney. In applying for a visa, adjustment, or other benefits, it is essential to work with an attorney who both understands immigration law and is committed to ethical practice. While Ortiz was able to rebut the presumption that he was aware of the fraudulent documents submitted on his behalf, the fact that he initially lost in removal proceedings and before the BIA on appeal shows the difficulty of doing so. Furthermore, the Board's decision in Matter of A.J. Valdez and Z. Valdez highlights that there are only narrow circumstances in which an alien will be able to establish that he or she was unaware of fraudulent documents or documents otherwise containing misrepresentations submitted on his or her behalf. Other points of Ortiz-Bouchet regarding what constitutes an admission or a departure highlight the myriad complexities of immigration law and the benefits of working with an experienced immigration attorney in navigating complex immigration proceedings.

To learn more about removal and deportation defense, please see our growing selection of articles on the subject [see category].