THE US Court of Appeals for the 9th Circuit granted a joint motion to dismiss a case in which it had previously ruled that a person who entered the US through the use of a fraudulent document had not been “admitted” to the US, such that the person was not eligible to seek adjustment of status to green card. The Court vacated its prior decision, as the parties agreed to reopening the case before the Board of Immigration Appeals (BIA) where they will re-argue whether a waiver of misrepresentation remains available in conjunction with an application for adjustment of status, as had long been the practice in the Immigration Courts and before the BIA.
In Orozco v. Mukasey. 521 F.3d 1068 (9th. Cir 2008) the court had evaluated whether a person who attained entry through the use of a green card issued in the name of another person, could apply for adjustment of status in the US. Generally, a person must establish that he was “admitted” to the US in order to seek adjustment of status. In making an application for adjustment of status, an applicant must also prove that he is not “inadmissible” to the US. Certain grounds of inadmissibility may be “waived” during the process, such as prior criminal convictions or immigration violations. For instance, a person who previously entered the US under an assumed name, as was the case in Orozco could be granted a waiver of inadmissibility due to fraud, if he could establish that his US Citizen or green card holding spouse or parent would suffer “extreme hardship” if he were not admitted to the US as a green card holder.
For years, the waiver application under INA §212(i) was used to waive application of inadmissibility due to fraud in conjunction with an application for adjustment of status. BIA and Federal Court jurisprudence acknowledged that a waiver, if granted, operates to “cure” the ground of inadmissibility due to fraud, such that the applicant for adjustment of status with a waiver would be deemed to have been legally admitted and thus eligible to seek adjustment of status.
Initially, the Court in Orozco held that even a waiver of a prior entry through fraud could not operate to render that entry an “admission” under the Immigration Act for the purposes of seeking adjustment of status. Each year, many people enter the US under an “assumed name” or through some other form of fraud. While this illegal conduct cannot be condoned, the Immigration & Nationality Act has long provided for certain waivers of illegal conduct based on a person’s after-acquired equities in the US, such as the existence of strong family ties and hardships to innocent family members due to the deportation of the offender. The Court’s decision in Orozco appeared to eviscerate the long-standing practice of allowing waiver applications to render a previous entry through representation an “admission.”
Since the Court has vacated its prior decision, waivers are available, as before, under similar circumstances. Of course, these waivers are not easy to obtain, as an applicant must establish “extreme hardship” to his qualifying relative spouse or parent to have any hopes of receiving a waiver. Applicants for adjustment of status facing obstacles due to prior misrepresentation should consult with competent counsel for a fair evaluation of their eligibility for a waiver and discussion of the associated risks.
* * *
Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon Law Group, PC, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; Tel. No. (626) 585-8005. Hanlon Law Group, PC is a “full-service Immigration Law firm.” E-mail: [email protected] and www.hanlonlawgroup.com.
