FU

Cite as 

 (BIA 2006)                                  Interim Decision #3539




                        In re Guang Li FU, Respondent
                          File A44 413 769 - San Francisco
                             Decided September 6, 2006
                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

  Section 237(a)(1)(H) of the Immigration and Nationality Act, 

(a)(1)(H)
(2000), authorizes a waiver of removability under section 237(a)(1)(A) based on charges of
inadmissibility at the time of admission under section 212(a)(7)(A)(i)(I) of the Act, 

(a)(7)(A)(i)(I) (2000), for lack of a valid immigrant visa or entry document, as well
as under section 212(a)(6)(C)(i) for fraud or willful misrepresentation of a material fact,
where there was a misrepresentation made at the time of admission, whether innocent or not.
FOR RESPONDENT: Justin X. Wang, Esquire, San Francisco, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: Carolyn H. Kim, Assistant
Chief Counsel

BEFORE: Board Panel: HOLMES, HURWITZ, Board Members; ADKINS-BLANCH,
Temporary Board Member.

HOLMES, Board Member:

  The respondent has appealed from an Immigration Judge’s decision dated
March 23, 2005, denying his application for a waiver under section
237(a)(1)(H) of the Immigration and Nationality Act, 

(a)(1)(H) (2000), but granting his application for voluntary departure
under section 240B(b) of the Act, 8 U.S.C. § 1229c(b) (2000). The
Department of Homeland Security (“DHS”) filed an opposition to the appeal.
While the appeal was pending, the respondent also filed a motion to remand,
claiming that he is eligible for adjustment of status under section 245(a) of the
Act, 

(a) (2000). The DHS has also opposed the motion to
remand. The respondent’s appeal will be sustained in part and dismissed in
part, and the record will be remanded to the Immigration Judge for further
proceedings.
  With respect to the motion to remand, the respondent argues that he is
eligible for adjustment of status because the visa petition filed by his mother
was approved on February 1, 2005. However, the respondent has
acknowledged that his priority date is not current. The respondent has
therefore not established that he is prima facie eligible for adjustment of


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status, so we would not remand the case on this basis. See 

(c) (2006).
  With respect to the appeal, the respondent argues that the Immigration Judge
erred in finding him removable from the United States and in denying his
application for a waiver under section 237(a)(1)(H) of the Act. The record
reflects that on May 1, 1991, the respondent’s father, who was a lawful
permanent resident, filed a visa petition on behalf of the respondent as his
single unmarried son under section 203(a)(2) of the Act, 

(a)(2) (Supp. III 1991). The petition was approved on September 23,
1991, but the respondent’s immigrant visa was not issued until December 28,
1994. The respondent was admitted to the United States on January 6, 1995,
as the son of a lawful permanent resident.
  However, the record further reflects that the respondent’s father had died on
August 2, 1993, after the visa petition had been approved, but before the
immigrant visa had been issued. Consequently, the DHS alleged that the
respondent obtained his visa by fraud or misrepresentation and originally
charged him with being removable from the United States under section
237(a)(1)(A) of the Act because he was inadmissible at the time of entry under
section 212(a)(6)(C)(i) of the Act, 

(a)(6)(C)(i) (2000).
Subsequently, the DHS withdrew the fraud charge and substituted an
inadmissibility charge under section 212(a)(7)(A)(i)(I), alleging that the
respondent did not have a valid visa or entry document when he was admitted
into the United States.
  Relying on the fact that the respondent, through counsel, conceded the
charge against him, the Immigration Judge found the respondent removable
under section 237(a)(1)(A) of the Act for having been inadmissible under
section 212(a)(7)(A)(i)(I). The respondent sought to withdraw his plea on the
charges against him, but the Immigration Judge denied the motion. Further,
the Immigration Judge denied the respondent’s application for a waiver under
section 237(a)(1)(H) of the Act, finding that this waiver is only available to
aliens who are charged with being inadmissible under section 212(a)(6)(C)(i).
The respondent has appealed from this decision.
  As a preliminary matter, we note that even if the respondent were allowed
to withdraw his plea in this case, the facts in the record support a finding of
removability. On September 23, 1991, the DHS approved the visa petition
filed by the respondent’s father. When the respondent’s father died on
August 2, 1993, before the respondent was admitted to the United States, the
approval of the visa petition was automatically revoked. See 8 C.F.R.




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§ 205.1(a)(3)(i)(C) (2006).1 Therefore, the respondent did not have a valid
visa at the time of his admission to the United States in 1995. For this reason,
the respondent is removable under section 237(a)(1)(A) of the Act for having
been inadmissible under section 212(a)(7)(A)(i)(I) when he was admitted to
the United States. Consequently, the respondent’s appeal from the
Immigration Judge’s finding of removability will be dismissed.
  We now turn to the respondent’s application for the waiver of
inadmissibility. Section 237(a)(1)(H) of the Act provides, in pertinent part,
as follows:
        The 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 section 212(a)(6)(C)(i), whether willful or innocent, may, in the
      discretion of the Attorney General, be waived for an alien . . . who—
          (i)(I) is the . . . son . . . of a citizen of the United States or of an alien lawfully
        admitted to the United States for permanent residence; and
             (II) was in possession of an immigrant visa or equivalent document and was
          otherwise admissible to the United States at the time of such admission except for
          those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of
          section 212(a) which were a direct result of that fraud or misrepresentation.
          ....
      A waiver of deportation for fraud or misrepresentation granted under this
      subparagraph shall also operate to waive deportation based on the grounds of
      inadmissibility directly resulting from such fraud or misrepresentation.

The Immigration Judge noted that the DHS did not ultimately charge the
respondent with being removable on the ground that he was inadmissible
under section 212(a)(6)(C)(i) of the Act at the time of admission. Therefore,
given the language of the statute, the Immigration Judge concluded that the
respondent was not eligible for the waiver under section 237(a)(1)(H). We
disagree with the Immigration Judge’s conclusion.
  In section 8 of the Immigration and Nationality Act Amendments of 1981,

 Stat. 1611, 1616, Congress amended former
section 241(f) of the Act, 

(f) (1976), the statutory predecessor
to current section 237(a)(1)(H). The specific purpose of the amendment was
to end litigation over essentially the same question presented here, i.e.,
whether the waiver of deportability should be available to an alien who
believed he was admissible and made an innocent misrepresentation at the
time of entry. Congress unequivocally answered this question in the
affirmative. See H.R. Rep. No. 97-264, at 25 (1981) (“The Committee


1
  There is no claim that the Attorney General determined in his discretion that revocation
of the respondent’s visa petition was inappropriate for humanitarian reasons, as permitted
by the regulations.

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 (BIA 2006)                        Interim Decision #3539




amendment reconciles the confusing and conflicting judicial and
administrative interpretations of the scope of this provision, and clarifies that
the waiver is . . . available for innocent (as well as fraudulent)
misrepresentations.”), reprinted in 1981 U.S.C.C.A.N. 2577, 2594, 

.
  Section 602(a) of the Immigration Act of 1990, 

 Stat. 4978, 5079, recodified former section 241(f) of the Act in its current
form at section 237(a)(1)(H) and added a reference to “aliens described in
section 212(a)(6)(C)(i).” However, there is no persuasive reason to believe
that Congress understood this conforming amendment as constituting an
implicit repeal of the aforementioned 1981 amendment. Had Congress wished
to repudiate the 1981 amendment and make the existence of an underlying
fraud charge the sine qua non of eligibility for a section 237(a)(1)(H) waiver,
it would have been simple enough to delete the reference to “innocent”
misrepresentations; yet this was not done. Indeed, the current provision’s
reference to aliens “described in section 212(a)(6)(C)(i), whether willful or
innocent” is a non sequitur, since the class of aliens “described in
section 212(a)(6)(C)(i)” excludes by definition those who make innocent
misrepresentations.
  Given this ambiguity, and in the absence of some clearer indication that
Congress wished to disavow the 1981 amendment, we conclude that
section 237(a)(1)(H) of the Act is best interpreted as authorizing a waiver of
removability under section 237(a)(1)(A) based on charges of inadmissibility
at the time of entry under section 212(a)(7)(A)(i)(I) of the Act, as well as
under section 212(a)(6)(C)(i), where there was a misrepresentation made at
the time of admission, whether innocent or not. See Cacho v. INS, 

 (9th Cir. 1976) (holding that former section 241(f) forgives deportation
charges grounded on former section 212(a)(20) of the Act, 

(a)(20) (1976) (no valid immigrant visa), as well as on former section
212(a)(19) (fraud or willful misrepresentation)); see also Persaud v. INS, 

 (3d Cir. 1976). We think that the statutory references in section
237(a)(1)(H) to “paragraphs (5)(A) and (7)(A) of section 212(a)” demonstrate
that there are additional “grounds of inadmissibility directly resulting from
such fraud or misrepresentation” that are subject to the waiver.
  Under this interpretation, the respondent is eligible for a waiver of the
ground of inadmissibility underlying his removal charge because of his
inherent misrepresentation, whether innocent or not, respecting the validity of
the visa petition at the time of his admission. For these reasons, we will
sustain the respondent’s appeal from the Immigration Judge’s denial of his
request for a waiver under section 237(a)(1)(H) of the Act and remand the
record for further consideration of his waiver application.


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 ORDER: The respondent’s appeal is sustained in part and dismissed in
part.
  FURTHER ORDER: The decision of the Immigration Judge is vacated
in part, and the record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new
decision.




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