In re Cervantes-Gonzalez
| Decision Date | 11 March 1999 |
| Docket Number | Interim Decision #3380 |
| Parties | In re Luis Felipe CERVANTES-Gonzalez - Respondent File A72 058 994 - San Francisco |
| Court | U.S. DOJ Board of Immigration Appeals |
Before: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, GUENDELSBERGER, JONES, GRANT, and SCIALABBA, Board Members. Concurring Opinion: VILLAGELIU, Board Member, joined by SCHMIDT, Chairman. Concurring and Dissenting Opinion: ROSENBERG, Board Member.
GRANT, Board Member:
In an oral decision dated January 21, 1997, an Immigration Judge denied the respondent's requests for a waiver of inadmissibility and adjustment of status pursuant to sections 212(i) and 245 of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(i) and 1255 (Supp. II 1996). The respondent's appeal from that decision will be dismissed.1
In a preliminary hearing held on October 26, 1995, the respondent admitted the allegations contained in the Order to Show Cause and Notice of Hearing (Form I-221) and was found deportable by the Immigration Judge. He then filed a request for adjustment of status on September 19, 1996, based on an approved visa petition filed by his United States citizen spouse.2 Because the respondent had been convicted of possession of false identification documents, the respondent also filed a request for a waiver of inadmissibility. See section 245 of the Act.
The Immigration Judge originally believed that the respondent required a waiver of inadmissibility under section 212(h) of the Act, but then determined that the respondent fell within an exception to section 212(a)(2)(A)(i)(I) of the Act (crime involving moral turpitude). Specifically, the Immigration Judge found that
the respondent had not been incarcerated for more than 6 months, making a waiver under 212(h) unnecessary. See section 212(a)(2)(A)(ii)(II) of the Act. However, the Immigration Judge determined that the respondent's crime did fall within section 212(a)(6)(C) of the Act, which renders inadmissible any alien who procures or seeks to procure, by fraud, documentation or other immigration benefits under the Act. Therefore, the respondent still needed a waiver of inadmissibility under section 212(i) of the Act (waiver for fraud or misrepresentation).
In determining whether to grant the application for a section 212(i) waiver, the Immigration Judge found that the respondent had failed to establish extreme hardship to his spouse in the event he is deported. Additionally, the Immigration Judge denied the respondent's application for adjustment of status as a matter of discretion.
On appeal, the respondent argues that the Immigration Judge erred in finding no extreme hardship and that he also gave improper weight to the negative factors in this case. In addressing the respondent's arguments, we will engage in an independent review of the merits of the case. Prior to discussing the merits of the respondent's arguments, however, we will address several issues of statutory interpretation raised in his appeal.
The respondent first argues that he does not require a waiver of inadmissibility under section 212(i) of the Act because he is not inadmissible under section 212(a)(6)(C)(i) of the Act. Specifically, he states that his sole conviction for possession of a false identification document (namely, a counterfeit Texas birth certificate) with the intent to defraud the United States (by obtaining a United States passport) does not fall within the definition of fraud in the Act. As he was convicted only of possession, he asserts that it is error to find him guilty of seeking to procure a fraudulent document. We disagree. Section 212(a)(6)(C)(i) of the Act states:
[A]ny alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission
into the United States or other benefit provided under this Act is inadmissible.
Obviously, the respondent admits to procuring one document in the form of a fraudulent birth certificate. The respondent testified that he purchased the birth certificate in Los Angeles, California, for approximately $400 or $500 so that he could obtain employment. He then used the birth certificate to procure by fraud a social security number, and he used both documents to seek to procure a passport. The latter document was necessary in order for the respondent to be able to travel into and out of the United States and to aid him in obtaining employment.
We note also that in finding the respondent's conviction fell within section 212(a)(6)(C) of the Act, the Immigration Judge and the Immigration and Naturalization Service did not improperly "go behind" the conviction record as contended by the respondent.3 Rather, they were merely establishing the facts regarding the respondent's fraud, which would have constituted grounds for inadmissibility whether or not the respondent had been convicted. See section 212(a)(6)(C) of the Act (no conviction is required in order to establish inadmissibility).
In sum, we agree with the Immigration Judge that the respondent's activities clearly fall within the purview of section 212(a)(6)(C)(i) of the Act. By fraud and by willful misrepresentation of a material fact, he sought to procure both "documentation" and "other benefits" under the Act. Therefore, we turn to the respondent's claim on appeal that he was not required to establish extreme hardship under recently enacted immigration legislation.
On appeal, the respondent argues that he was not given an adequate opportunity to present evidence on the issue of extreme hardship because, at the time of his hearing, "the INS was not asking for any showing of `extreme hardship.'" He concedes that the new requirements for section 212(i) relief apply to him, notwithstanding the fact that his application for relief was filed prior to the enactment of new legislation, i.e., section 349 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-639 ("IIRIRA").4 However, he states that his case should be remanded in order to allow him to present adequate evidence on the issue of extreme hardship.5
We first note that the respondent's concession is in accord with the Attorney General's decision in Matter of Soriano, Interim Decision 3289 (BIA, A.G. 1996), which holds that the enactment of new statutory rules of eligibility for discretionary forms of relief acts to withdraw her jurisdiction to grant such relief in pending cases to aliens who do not qualify under those new rules. In conducting a statutory analysis of the new amendments to section 212(c) of the Act, 8 U.S.C. § 1182(c) (1994), Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 440(d), 110 Stat. 1214, 1277 ("AEDPA"), the Attorney General stated:
In summary, under Landgraf [v. USI Film Products, 511 U.S. 244 (1994)], a new statute does not have retroactivity effect if it does not impair rights a party possessed when he or she acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. More specifically, an intervening statute that either alters jurisdiction or affects prospective injunctive relief generally does not raise retroactivity concerns, and, thus, presumptively is to be applied in pending cases.
Matter of Soriano, supra, A.G. opinion at 4. Likewise, the Attorney General concluded that the new provisions in section 212(c) applied to pending cases because the new legislation acted to withdraw her authority to grant prospective relief; it did not speak to the rights of the affected party. Id. at 4-5. The effect was therefore to alter both jurisdiction and the availability of prospective relief to the alien. Id. at 5; see also AEDPA § 440(d).
Similarly, we find the request for a waiver of inadmissibility pursuant to section 212(i) of the Act is a request for prospective relief. "`It is not designed to remedy the past but only to...
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