Over one dissent, a three-member BIA panel vacated a June 2010 ruling by an immigration judge that Bouchra Agour, a native of Morocco, was removable for fraud she committed in association with her change of status and ineligible to apply for a waiver from removal under section 237(a)(1)(H) of the Immigration and Nationality Act.
The panel majority concluded that an alien's adjustment of status within the United States qualifies an admission — meaning that an alien already in the U.S. may seek a waiver for any fraud committed in relation to the adjustment.
“The waiver is not limited only to those aliens who engage in fraud or misrepresentation at the time of entry into the U.S. with an immigrant visa,” the board majority said. “Therefore, an alien who commits fraud in the course of adjusting status in the United States may waive removal under [the statute] as an alien who was inadmissible at the time of adjustment of status.”
Agour was admitted to the United States on a nonimmigrant visitor visa in 1999. Two years later, she married a U.S. citizen who then filed a visa petition on her behalf. In 2002, Agour was granted conditional permanent resident status based on her marriage.
But in 2008, the U.S. Department of Homeland Security filed a notice that Agour appear in immigration court, charging that she was an alien who is inadmissible based on fraud or misrepresentations associated with her marriage. DHS also charged Agour with lacking a valid visa.
But a year after the notice, DHS withdrew several charges, including the general allegations related to marriage fraud, and added a new allegation that Agour submitted a fraudulent lease agreement in order to establish the legitimacy of her marriage.
Agour admitted this allegation, conceded removability, sought a discretionary waiver for fraud under the relevant INA statute, according to court documents.
The immigration judge, however, ultimately concluded that Agour was ineligible for the waiver because the fraud in question had no connection to her 1999 entry with a visitor visa.
The judge had concluded that the statute’s language regarding the “time of admission” referred to Agour’s initial entry into the U.S. in 1999 — meaning the waiver didn't apply to fraud committed in connection to the adjustment of status.
On appeal, Agour did not contest her removability but argued that the waiver applies to any fraud she committed in the process of procuring lawful permanent resident status. She also argued that denial of the waiver would result in hardship for her child, a U.S. citizen.
The BIA noted in its ruling that neither it nor any federal appellate court have never published a decision as to whether the section 237(a)(1)(H) waiver is available to aliens who adjust their status after they have already entered the United States.
Previous decisions concerning the waiver dealt only with aliens admitted to the U.S. with immigrant visas who were then charged with being removable for fraud or misrepresentation in that initial entry.
The board majority said that the language of the statute has undergone several modifications over the years as the law has been amended, but that, ultimately, the statutory language and relevant case law supports the majority's conclusion.
“We therefore construe the phrase 'at the time of admission' in section 237(a)(1)(H) of the [INA] to include adjustment of status from within the United States,” the board majority said. “Our holding comports with the well-established understanding that adjustment of status constitutes an admission, as the term is used in certain other parts of the [INA].”
But in a dissenting opinion, board member Roger A. Pauley said he could not agree with his colleagues' decision to broaden the waiver statute to embrace, not only fraud at the time of entry, but also fraud at the time of adjustment.
“It is true that the board has sometimes treated an adjustment of status as an 'admission,'” Pauley said. “But we have never declared that an adjustment of status is always to be so construed.”
“And there is good reason not do so here because there is no indication that Congress intended to overturn our prior construction of the waiver, and that of the courts of appeals, as limited to fraud at the time of entry,” Pauley said.
While the BIA ruled that Agour is eligible for the waiver, it instructed the immigration judge on remand to determine whether Agour meets all the criteria required for her application for a waiver of inadmissibility to be granted.
An attorney for the respondent did not immediately respond Monday to a request for comment.
The respondent was represented by Henry Cruz.
DHS was represented by Eric Bakken.
The case is Matter of Bouchra Agour, case number 26 I&N Dec. 566, in the Board of Immigration Appeals.
— Editing by Ben Guilfoy.