In re Li Fu
| Decision Date | 06 September 2006 |
| Docket Number | File A44 413 769.,Interim Decision No. 3539. |
| Citation | 23 I&N Dec. 985 |
| Court | U.S. DOJ Board of Immigration Appeals |
| Parties | In re Guang Li FU, Respondent. |
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, 8 U.S.C. § 1227(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, 8 U.S.C. § 1255(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 status, so we would not remand the case on this basis. See 8 C.F.R. § 1003.2(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, 8 U.S.C. § 1153(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, 8 U.S.C. § 1182(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 § 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, Pub. L. No. 97-116, 95 Stat. 1611, 1616, Congress amended former section 241(f) of the Act, 8 U.S.C. § 1251(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) (), reprinted in 1981 U.S.C.C.A.N. 2577, 2594, 1981 WL 21317.
Section 602(a) of the Immigration Act of 1990, Pub. L....
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