Tuesday, April 20, 2010
Court Allows Fraudulently Married Alien to Seek to Stay in U.S.
Remarriage to Citizen May Provide Path to ‘Fraud Waiver,’ Panel Rules
By Kenneth Ofgang, Staff Writer
An alien facing removal from the United States after using a fraudulent marriage to obtain residency may seek a waiver following a second marriage to a citizen, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Acknowledging the “Byzantine fashion” in which Renerose Vasquez’s “maze of a case” has been conducted over the past 12 years, the panel overruled the Board of Immigration Appeals and said Vasquez is entitled to a ruling on the merits of her petition for a discretionary waiver of removal.
Vasquez entered the United States in February 1995 with conditional permanent resident status as the wife of a U.S. citizen. Her husband—who was divorced from Vasquez’s aunt—later told the INS that their 1994 marriage, which took place in the Philippines, occurred after he was offered $3,000 by Vasquez’s grandmother to marry her and bring her to this country.
Based on that admission, the former Immigration and Naturalization Service concluded that Vasquez could not qualify for permanent resident status and initiated deportation proceedings. Vasquez denied that she had committed marriage fraud and also sought a waiver based on “extreme hardship.”
In 1999, while those proceedings were still pending, Vasquez gave birth to a son. In June 2000, she divorced her husband, and in December of that year married the child’s father, also a citizen of this country.
Her second husband sought to reinstate her legal resident status, based on their marriage, while she filed a second hardship waiver request, citing her son’s “mild persistent asthma,” resulting in two hospitalizations.
The INS ruled in 2002 that Vasquez could not meet the statutory requirements for a waiver because she and her first husband filed a joint petition to make her legal resident status permanent and the petition was denied on the merits. At her subsequent removal hearing, she testified that her marriage was legitimate but that she did not move in with her husband because she feared her aunt’s jealousy.
The immigration judge ruled that the marriage was fraudulent, and that no extreme hardship waiver was available, but that Vasquez could seek a “fraud waiver”—a discretionary waiver available to an alien who is the spouse or parent of a citizen and who sought to enter the United States by fraud.
Another IJ, however, later denied the fraud waiver and ordered Vasquez removed.
The BIA subsequently affirmed the rulings of both IJ’s and dismissed Vasquez’s appeal from the removal order.
Judge Marsha Berzon, writing for the Ninth Circuit, said the BIA correctly interpreted the law regarding hardship waivers but was wrong as to fraud waivers.
The judge acknowledged that a prior Ninth Circuit case, Gawaran v. INS (9th Cir. 1996) 91 F.3d 1332, precludes an alien who fails to convert marriage-based conditional resident status into permanent status from obtaining a fraud waiver, where the alien and citizen spouse fail to file a joint petition for permanent status during the 90 days preceding their second anniversary.
But “our decision in Gawaran, although it remains a binding precedent, does not apply to an alien whose conditional permanent resident status was terminated not for failure to file a joint petition but upon a determination of marriage fraud,” Berzon wrote.
The fraud waiver provision in Sec. 237 of the Immigration and Nationality Act, the judge explained, is broadly written and has been held applicable to various grounds of excludability.
While the statutory language has been rewritten, she said, there is no “reason to believe that when Congress passed the Immigration Marriage Fraud Amendments of 1986 and instituted the system of conditional permanent residence—including the new ground for removal based on termination of conditional permanent resident status —it intended to make the fraud waiver unavailable to immigrants who committed marriage fraud.”
Berzon went on to say that the second immigration judge, while purporting to deny the fraud waiver request on its merits, exhibited a misunderstanding of the legal standard, as indicated by her repeatedly and erroneously referencing the request as one for a “hardship” waiver.
The case is Vasquez v. Holder, 05-73714.
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