Vasquez v. Holder
602 F. Supp. 3d 1003, 2010 U.S. App. LEXIS 7970, 602 F.3d 1003 (2010)
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Rule of Law:
The fraud waiver under INA § 237(a)(1)(H) is available to an alien whose conditional permanent resident status was terminated due to a finding of marriage fraud, even if the government also charges removability based on the termination of status under INA § 237(a)(1)(D), because the termination directly "relates to" the initial inadmissibility at the time of admission due to fraud.
Facts:
- Renerose Vasquez, a native and citizen of the Philippines, married Wilfredo Vasquez, a U.S. citizen, in the Philippines in January 1994.
- On February 3, 1995, Vasquez was admitted to the United States as a conditional permanent resident based on her marriage to Wilfredo Vasquez.
- On May 20, 1998, Vasquez and Wilfredo Vasquez filed a joint petition to remove the conditions on residence and appeared for an interview with the INS.
- During the interview, Wilfredo Vasquez signed an affidavit stating Vasquez's grandmother promised him $3000 to marry Vasquez for immigration purposes, and Vasquez signed an affidavit admitting she knew her grandmother paid Wilfredo to help them.
- Vasquez divorced Wilfredo Vasquez on June 2, 2000.
- Vasquez married Frederick Villanueva, a U.S. citizen, on December 8, 2000, and they had a son, Eren Villanueva, on September 10, 1999, who suffers from mild persistent asthma and has required hospitalization.
Procedural Posture:
- The INS issued a written notice terminating Renerose Vasquez’s conditional resident status, citing Wilfredo Vasquez’s admission that the marriage was for immigration benefits.
- The INS served Vasquez with a Notice to Appear, charging her with removability under INA § 237(a)(1)(A) as an alien inadmissible at the time of admission because she sought to procure admission by fraud.
- While removal proceedings were pending, Vasquez filed a petition seeking an extreme hardship waiver under INA § 216(c)(4)(A).
- On December 9, 2002, the INS issued a written notice denying Vasquez’s extreme hardship waiver application, stating she was statutorily ineligible because she had met the joint petition requirement (which was denied on its merits for marriage fraud).
- On August 15, 2003, Immigration Judge (IJ) Smith held that the government had proven marriage fraud, justifying the termination of Vasquez’s status, and ruled that no extreme hardship waiver was available because the joint petition was filed but denied. IJ Smith continued proceedings to allow Vasquez to seek a fraud waiver under INA § 237(a)(1)(H).
- On October 24, 2003, the Department of Homeland Security (DHS) filed an additional charge of removability against Vasquez under INA § 237(a)(1)(D)(i), stating she was removable as an alien whose conditional permanent resident status was later terminated.
- On January 28, 2004, IJ Yam held that the fraud waiver did not apply to the additional charge, pretermitted Vasquez’s application for a fraud waiver, and alternatively denied the waiver in the exercise of discretion, ordering her removed to the Philippines.
- Vasquez timely appealed the IJs’ orders to the Board of Immigration Appeals (BIA).
- The BIA affirmed IJ Smith’s ruling that Vasquez was ineligible to apply for an extreme hardship waiver, IJ Yam’s ruling that the fraud waiver would not cover both grounds of removal, and, in the alternative, IJ Yam’s discretionary waiver denial. The BIA dismissed Vasquez's appeal from the removal order.
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Issue:
Does the fraud waiver under INA § 237(a)(1)(H) apply to an alien whose conditional permanent resident status was terminated upon a finding of marriage fraud, making them removable under INA § 237(a)(1)(D)(i) in addition to being inadmissible at the time of admission for fraud?
Opinions:
Majority - Berzon, Circuit Judge
Yes, the fraud waiver under INA § 237(a)(1)(H) applies to an alien whose conditional permanent resident status was terminated upon a finding of marriage fraud, even when the government also charges removability based on the termination of status under INA § 237(a)(1)(D). The Court affirmed the BIA's determination that Vasquez was ineligible for an extreme hardship waiver under § 216(c)(4) because she and her spouse did timely file a joint petition, which was subsequently denied on the merits due to marriage fraud, rather than failing to file it. However, the Court reversed the BIA's holding that Vasquez was ineligible for a fraud waiver. The fraud waiver provision, § 237(a)(1)(H), states it applies to "[t]he provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in [the fraud provision]." The Court emphasized the use of the plural "provisions" and the broad meaning of "relating to," which signifies a connection or bearing. It distinguished the present case from Matter of Gawaran, which involved termination of status for failure to file a joint petition, a ground not related to fraud at entry. In Vasquez's situation, the termination of her conditional status under § 237(a)(1)(D) was because of the Attorney General's determination of marriage fraud, which also rendered her inadmissible at the time of admission under § 212(a)(6)(C)(i). Therefore, both grounds of removability stem from the same initial act of fraud at the time of admission and are inextricably linked, or "relate to" one another. The Court reasoned that to hold otherwise would allow the agency to circumvent the humanitarian purpose of the fraud waiver by strategically choosing charging sections, a practice disapproved in precedents like INS v. Errico and Cacho v. INS. The Court noted that Congress intended the fraud waiver to apply to marriage fraud, and the system of conditional residence was established to better ascertain the bona fide nature of the marriage at the time of entry. Finally, the Court remanded the case for reconsideration of the discretionary denial of the fraud waiver, finding that Immigration Judge Yam had misunderstood the statutory eligibility requirements by erroneously believing that hardship was a prerequisite for the fraud waiver.
Analysis:
This case significantly clarifies the scope of the INA's fraud waiver, preventing the government from using alternative charging mechanisms to nullify a humanitarian waiver designed to preserve family unity. By distinguishing Gawaran, the Ninth Circuit establishes that the availability of the fraud waiver depends on the underlying reason for the termination of conditional resident status, not merely the fact of termination itself. This decision reinforces the principle that courts should interpret immigration statutes to prevent administrative circumvention of Congressional intent, particularly regarding waivers for aliens with close family ties to U.S. citizens or lawful permanent residents. It provides a critical safeguard for individuals who committed marriage fraud at entry but later developed qualifying family relationships in the U.S., ensuring they have an opportunity for discretionary relief.
