9th Circuit Finds Adjustment (Green Card) Unavailable to Persons Who Enter the U.S. by Using False Documents or by Fraud; Must Consular Process!
summary posted by AILA (American Immigration Lawyers Association) InfoNet Doc. No. 08050544 (posted May. 5, 2008)
Orozco v. Mukasey, (9th Cir. Mar. 25, 2008)
On January 11, 1996, Petitioner entered the United States by presenting the permanent resident card ("green card") of another person to an immigration inspector. On April 13, 2005, Petitioner was charged with removability under INA §237(a)(1)(A) for having presented a counterfeit document to gain admission into the U.S. Petitioner, who was married to a U.S. citizen, submitted an application for adjustment of status (green card application) under INA §245(a) and a waiver of inadmissibility under INA §212(i) for the fraud. The immigration judge concluded that Petitioner was statutorily ineligible for adjustment of status because he had not been lawfully "admitted" for permanent residence and that even if Petitioner qualified for a §212(i) waiver, he remained ineligible for adjustment because of his fraudulent entry.
The court concluded, a "lawful" entry "requires more than simply presenting oneself for inspection and being allowed to enter the United States." Petitioner's use of a fraudulent document to gain entry into the U.S. was unlawful and was grounds for criminal charges under 18 USC §1001(a) and §1028(a)(7). Therefore, the court rejected Petitioner's argument "that his entry, while criminal, was lawful for purposes of [INA §245(a)] because he presented himself for inspection and admission and was allowed to enter the United States." Finally, the court rejected Petitioner's attempt to cure his unlawful entry with a waiver of inadmissibility under INA §212(i). The court explained that lawful entry is a statutory prerequisite for adjustment of status that cannot be waived by §212(i). The petition for review was denied.
3 comments:
As the I-151 90 day window approaches my foreign born wife and I are worried about how to fill the form.
First, we got married several months after she came to the states. A romantic but rocky love affair, apart for a month, we remarried caring little about the effects the short divorce might have later on the permanent residency application, COS, at the near two year point. We see the I-151 page 2 has a question asking if our current marriage was the original one upon which the conditional residency was issued. It is not. Now what? Will our removal of conditional application be automatically denied? Does this happen to others? Will it trigger an automatic need for interviews?
We adore each other but marriage isn't for everyone and we love living with each but not necessarily being married. We both know fibbing on the application is a no no. One has to ask oneself if the national information system would ever make authorities aware through whatever background checks occur after tendering the application for removal of status of that brief divorce. Does it technically reset the two year time clock? I wondered if our case is interesting or unusual and if answering could provide answers to many others out there afraid to ask.
Many thanks for your thoughts. G
George:
Yes, never lie on an immigration form. It's a felony, punishable by prison and a lot of money.
If I am understanding you correctly, if your wife divorced you or vice versa during the conditional period of her green card, regardless of whether she remarried you in that same period, then she has to apply for a waiver of the requirement to file a joint I-751 form. A divorced couple cannot file an I-751 based on a subsequent remarriage. I don't know what you mean when you write I51.
There is no timeline to reset. If they deny her waiver, then you can reapply for her based on your new marriage but must convince your local office not to issue a Notice to Appear (NTA) for your wife to be placed in removal proceedings. Simply refiling a new adjustment package won't stop an NTA in almost all CIS locations. Hire a competent immigration attorney; your situation is unique.
Having a Marriage in the USA and applying for an Adjustment Of Status is a common occurrence. You have met the person you want to spend the rest of your life with and getting married and then the obtaining your Green Card is the natural step. If you are informed and do it correctly you can live this dream!
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