Interim Decision #3264

Interim Decision #3264

Interim Decision #3264

In re Delia LAZARTE-Valverde, Respondent

File A70 826 043 - Boise

Decided February 9, 1996

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Section 212(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(i) (1994), which

waives inadmissibility under section 212(a)(6)(C) of the Act for fraud or willful misrepresentation of a material fact in relation to procuring a visa, other documentation, or entry into the

United States or other benefit provided under the Act, is not applicable to waive inadmissibility

under section 212(a)(6)(F) of the Act for document fraud in violation of section 274C of the

Act, 8 U.S.C. 1324c (1994).

FOR RESPONDENT: Ernest A. Hoidal, Esquire, Boise, Idaho

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Ann M. Tanke, District

Counsel

BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HURWITZ,

FILPPU, COLE, and MATHON, Board Members. Concurring Opinions: SCHMIDT, Chairman, joined by VILLAGELIU, Board Member; ROSENBERG, Board Member, joined by

HOLMES and GUENDELSBERGER, Board Members.

COLE, Board Member:

In a decision dated October 18, 1994, an Immigration Judge found the

respondent deportable under section 241(a)(1)(B) of the Immigration and

Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (1994), because she had remained

in the United States without proper authorization. The Immigration Judge

also found the respondent deportable under section 241(a)(3)(C) of the Act,

as an alien subject to a final order for violation of section 274C of the Act, 8

U.S.C. § 1324c (1994). The Immigration Judge granted the respondent’s

application for a waiver under section 212(i) of the Act, 8 U.S.C. § 1182(i)

(1994), and adjustment of status under section 245 of the Act, 8 U.S.C.

§ 1255 (1994). The Immigration and Naturalization Service has appealed the

Immigration Judge’s grant of a waiver and the grant of adjustment of status.

The appeal will be sustained.1

1 The request for oral argument is denied pursuant to 8 C.F.R. § 3.1(e) (1995).

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I. BACKGROUND

The respondent is a 45-year-old native and citizen of Bolivia who entered

the United States on September 12, 1989, as a visitor with authorization to

remain in this country until March 12, 1990. At the deportation proceedings

on July 12, 1994, the respondent admitted the factual allegations contained in

the Order to Show Cause and Notice of Hearing (Form I-221) and conceded

her deportability under section 241(a)(1)(B) of the Act. On October 18, 1994,

a charge under section 241(a)(3)(C) of the Act was lodged against the respondent because she was subject to a final order for document fraud under section 274C of the Act. The record indicates that the respondent received a final

order for document fraud on July 14, 1994, fining her $500. This order

stemmed from the respondent’s use of fraudulent documents to obtain

employment. The respondent conceded deportability under the lodged

charge. She applied for adjustment of status based upon her marriage to a

lawful permanent resident and, in conjunction with that application filed for a

waiver of excludability under section 212(i) of the Act.

II. THE IMMIGRATION JUDGE’S DECISION

The Immigration Judge found that the respondent’s use of false documents to procure employment could render her inadmissible under two

grounds of exclusion, sections 212(a)(6)(C)(i) and (F) of the Act, respectively. The Immigration Judge determined that the respondent committed a

“borderline” inadmissible act pursuant to section 212(a)(6)(C)(i) by providing misinformation to the consular officer regarding her intention to come to

the United States. The Immigration Judge determined the respondent was

inadmissible under section 212(a)(6)(C)(i) because she had committed a misrepresentation by using counterfeit documents to obtain employment.2

The respondent was also found inadmissible under section 212(a)(6)(F)

because she had been the subject of a final order under section 274C. Using

an equal protection argument, the Immigration Judge reasoned that it was not

logical that Congress would allow a misrepresentation under section

212(a)(6)(C)(i) to be waived while not allowing document fraud under section 212(a)(6)(F) to be waived when the same conduct gave rise to the two

different grounds of inadmissibility. The Immigration Judge also opined that

the right of an alien to seek a waiver should not be dependent upon whether

the Service decides to fine the alien in accordance with section 274C of the

Act. The Immigration Judge found disparate treatment of aliens engaged in

the same kind of misconduct based on whether or not the Service chose to

2 The respondent presented false documents in completing the Employment Eligibility

Verification (Form I-9) to seek employment from an employer, not work authorization from the

Service. Whether such employment is a “benefit provided under this Act” as that phrase is used

in section 212(a)(6)(C)(i) is a question which we need not resolve for purposes of this opinion.

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impose a fine. The Immigration Judge found this circumstance analogous to

that which culminated in the section 212(c) waiver being made available to

aliens in deportation proceedings. In Francis v. INS, 532 F.2d 268 (2d Cir.

1976), the court determined that the section 212(c) waiver would be available

in deportation proceedings because to not allow such would result in a violation of equal protection. The Immigration Judge concluded that the section

212(i) waiver could be applied to both grounds of inadmissibility. The waiver

was granted, as was adjustment of status.

III. ISSUE ON APPEAL

The primary issue in the case is the propriety of the Immigration Judge’s

use of section 212(i) to waive inadmissibility under section 212(a)(6)(F) of

the Act. The Service contends that the Immigration Judge erred in granting a

section 212(i) waiver for inadmissibility under section 212(a)(6)(F) of the

Act. The Service also argues that the Immigration Judge abused his discretion in granting adjustment of status.

IV. APPLICABLE LAW

Section 245 of the Act provides that the Attorney General may in her discretion adjust the status of an alien inspected and admitted or paroled into the

United States to that of an alien lawfully admitted for permanent residence if

the alien applies for adjustment, is eligible to receive an immigrant visa and is

admissible to the United States for permanent residence, and has an immigrant visa immediately available to him. An alien subject to deportation proceedings may also apply for adjustment of status before the Immigration

Judge and, if inadmissible under section 212(a) of the Act, may also apply for

a waiver of the ground of inadmissibility. See 8 C.F.R. § 242.17(a) (1995).

The two grounds of excludability considered by the Immigration Judge

will be set out. Section 212(a)(6)(C)(i) states: “Any 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 entry into the United

States or other benefit provided under this Act is excludable.” Section

212(a)(6)(F) states: “An alien who is the subject of a final order for violation

of section 274C is excludable.”

Section 212(i) provides for a waiver for fraud or willful misrepresentation

of a material fact. The section reads as follows:

(i) The Attorney General may, in [her] discretion, waive application of clause (i) of subsection (a)(6)(C) (1) in the case of an immigrant who is the spouse, parent, or son or daughter of a

United States citizen or of an immigrant lawfully admitted for permanent residence . . . .

Section 274C was added to the Act by section 544(c) of the Immigration

Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5059 (enacted Nov. 29,

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1990), and imposes civil penalties for document fraud. Such cases can be

tried before an administrative law judge and can result in fines of up to

$5,000 for each document used or received. Violating the document fraud

provisions also renders an alien both excludable and deportable. See sections

212(a)(6)(F), 241(a)(3)(C) of the Act, respectively. There is no explicit

waiver provided for these document fraud provisions.

V. BOARD DETERMINATIONS

A. Statutory Construction

Our analysis begins with the language of the statute itself. See INS v.

Phinpathya, 464 U.S. 183 (1984). We observe that when Congress in 1990

renumbered and redesignated the grounds of inadmissibility in section 212,

as part of the Immigration Act of 1990, a subsection entitled “Waiver Authorized” was added to certain grounds. A waiver is authorized for section

212(a)(6)(C)(i) and that waiver is found at section 212(i). Section 212(i)

makes a reference back to section 212(a)(6)(C)(i). There is no waiver authorized for section 212(a)(6)(F). We note that Congress had the opportunity to

add a waiver for section 212(a)(6)(F) in the Immigration and Nationality

Technical Corrections Act of l994, Pub. L. No. 103-416, 108 Stat. 4305, but

did not do so.

From our review of the statute, we conclude that the omission of a waiver

for section 212(a)(6)(F) of the Act was intentional. Where Congress has

expressly provided a waiver for other sections of a statute, the natural inference to be drawn from the omission of a waiver in one particular section of

that statute is that no waiver was intended. See Matter of Patel, 19 I&N Dec.

774 (BIA l988) (citing Marshall v. Gibson’s Products Inc. of Plano, 584 F.2d

668 (5th Cir. l978)). The Immigration Judge erred by applying the waiver to

section 212(a)(6)(F).

Additionally, the Immigration Judge concluded from the language of the

statute itself that the legislative intent of the Act would not be frustrated by

considering section 212(a)(6)(F) to be subject to waiver. The Immigration

Judge reasoned that to deny the possibility of a waiver for conduct giving rise

to document fraud of this section would result in disparate, irrational, and

unfair treatment.

We observe here a flaw in the Immigration Judge’s analysis pointed out by

the Service in its brief. The starting point of the analysis used by the Immigration Judge is that the same activity could give rise to two different forms

of inadmissibility. However, such is not always the case. Section 212(a)(6)

(C)(i) is most often used when an alien makes oral misrepresentations before

a consular officer or at the United States border. These misrepresentations do

not give rise to liability under section 274C unless a fraudulent document is

used. Congress may have rationally considered an oral misrepresentation as

being less culpable than the use of fraudulent documents and so provided for

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the waiver for such oral misrepresentations. Further evidence of the seriousness of fraudulent document violations is the eligibility requirements for suspension of deportation. An alien deportable for the type of fraud or

misrepresentation described in section 212(a)(6)(C)(i) requires 7 years’

physical presence, but document fraud violators must have 10 years’ physical

presence and demonstrate a heightened showing of “exceptional and unusual

hardship.” See section 244(a)(2) of the Act, 8 U.S.C. § 1254(a)(2) (1994).

This statutory construction undermines the Immigration Judge’s concern for

the disparate treatment of sections 212(a)(6)(C) and (F).

B. Legal Opinion of General Counsel

We have also considered the impact of the Legal Opinion of the General

Counsel dated May 18, l993, which indicates that the waiver found at section

212(i) may be used to waive inadmissibility based upon the same fraudulent

conduct which could be the focus of a section 274C fine proceeding.3 However, upon close examination of the opinion, we conclude that it is not applicable to the respondent. It is important to note that not all fraudulent conduct

that could be the focus of a section 274C fine proceeding is waivable. Section

274C may be applicable in a number of scenarios and the legal opinion

addresses only those instances in which proceedings have not yet been initiated. The opinion states: “Where a waiver under section 212(i) is pending,

any contemplated proceedings pursuant to section 274C should be delayed

until a decision of the section 212(i) waiver application is made. If the waiver

application is approved, no further proceedings involving the same conduct

should be instituted under section 274C.” The opinion states, in effect, that

section 212(i) may be used to “waive” proceedings brought pursuant to section 274C of the Act if the waiver was pending before proceedings under section 274C are instituted and the waiver is granted. The opinion addresses the

exercise of “prosecutorial discretion” of the Service and describes, not a

waiver in the true sense of that term, but rather an instance when a section

274C proceeding should not be initiated. This practice prevents the Service

from using the same activity which has been the subject of a section 212(i)

waiver to be used as a ground of deportability or excludability as the result of

a section 274C proceeding. In the matter before us, an application for a section 212(i) waiver was not pending when the proceedings under section 274C

were instituted.

As pointed out in the Service brief, the opinion is inapposite to the facts of

the instant case. To repeat, the opinion addresses a situation in which a violation of section 274C of the Act has not yet been found—such is not the circumstance here. Contrary to the respondent’s brief, we find it dispositive that

the respondent did not have a section 212(i) waiver pending.

3 By letter dated June 20, 1995, the Board solicited additional briefs from the respondent and

the Service as to the effect of the Legal Opinion. Both parties submitted briefs.

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We conclude that the Immigration Judge erred by applying the section

212(i) waiver to the respondent’s inadmissibility under section 212(a)(6)(F)

of the Act. Consequently, we find the respondent ineligible for adjustment of

status in that she is not otherwise admissible to the United States because of

the final order for document fraud. Accordingly, we find it unnecessary to

address whether the respondent merits adjustment of status in the exercise of

discretion. We note that the respondent applied for voluntary departure in

lieu of deportation but this application was not ruled upon by the Immigration

Judge. Our review indicates that the respondent is not statutorily eligible for

that relief as she is subject to a final order for violation of section 274C. See

section 244(e)(1) of the Act. The following order is entered.

ORDER:

The appeal is sustained. The decision of the Immigration Judge is vacated insofar as it granted the respondent a waiver of inadmissibility under section 212(a)(6)(F) of the Act and adjustment of status. The

respondent is ordered deported from the United States to Bolivia.

CONCURRING OPINION: Paul W. Schmidt, Chairman, in which

Gustavo D. Villageliu, Board Member, joined

I respectfully concur. I am writing separately because the Immigration

Judge’s thoughtful equal protection analysis, which would have resulted in a

waiver grant in this case, requires further comment. The Immigration Judge

reached a practical, equitable result. His analysis would have permitted us to

exercise case-by-case discretion, weighing all of the circumstances present in

each instance of fraud. Ordinarily, that is the type of common sense application of the law we should strive to achieve. Therefore, I will explain why I

cannot adopt the Immigration Judge’s analysis in this case.

I. EQUAL PROTECTION ANALYSIS

The Immigration Judge applied the equal protection analysis set forth in

Matter of Silva, 16 I&N Dec. 26 (BIA 1976). He concluded that there was no

rational reason for considering a fraud waiver for an individual excludable

for document fraud under section 212(a)(6)(C)(i) of the Immigration and

Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(i) (1994), while denying waiver

consideration to an otherwise identically situated individual who had been

subject to a civil fine under section 274C of the Act, 8 U.S.C. § 1324c (1994).

The Immigration Judge reasoned that the Immigration and Naturalization

Service decision to impose a section 274C fine on the individual was not

related to the severity of the fraud and therefore could not be a rational basis

for distinguishing between the two categories of otherwise identically situated individuals.

Consequently, the Immigration Judge concluded that the waiver under

section 212(a)(6)(C)(ii) of the Act, for misrepresentation- based fraud, also

should operate to waive inadmissibility under section 212(A)(6)(F) based

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upon the same incident of document fraud. The Immigration Judge noted that

his interpretation was consistent with the general remedial and humanitarian

intent behind waiver provisions.

Under the Fourteenth Amendment to the United States Constitution and

our ruling in Matter of Silva, supra, we must avoid interpretations that create

disparate treatment unrelated to any legitimate governmental interest. This

view recently has been reaffirmed by several courts. See Po Shing Yeung v.

INS, 61 F.3d 833 (11th Cir. 1995), modified, 72 F.3d 843 (11th Cir. 1996);

Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994).

If this were, in fact, a matter of the Board’s “interpretation,” I would agree

with the Immigration Judge. There is no apparent governmental interest in

considering a waiver for an individual whose fraud has not been the subject

of a section 274C fine proceeding, while declining to consider the case of an

individual with fraud of a lesser or equal degree that happens to have been the

subject of a section 274C fine.

The memorandum from the Immigration and Naturalization Service General Counsel Grover J. Rees, dated May 18, 1993, acknowledges the problems caused by the absence of a waiver for section 212(a)(6)(F)

inadmissibility. That memorandum attempts to fashion a policy solution

which should result in section 274C fine proceedings being pursued only

after the alien’s application for a waiver under section 212(i) had been considered and rejected by the Service. The failure of the Service to apply the

General Counsel’s memorandum to permit consideration of the waiver

request in this case illustrates the practical shortcomings of such a policy.

II. WHY EQUAL PROTECTION ANALYSIS IS

INAPPLICABLE TO THIS CASE

If this were a matter of our authority to “interpret” the statute, the Immigration Judge’s analysis would be persuasive. Unfortunately, however, we

have nothing to “interpret” here.

The current version of section 212 of the Act systematically sets forth the

waivers applicable to each subsection. The ground of inadmissibility

described in section 212(a)(6)(C)(i) is specifically waivable by reason of section 212(i). There is no waiver for section 212(a)(6)(F) inadmissibility. Nothing brought to our attention by the parties in this case would lead to the

conclusion that the omission of the waiver under section 212(a)(6)(F) was

either inadvertent or unintended.

This case is different from Matter of Silva, supra. In Silva, the issue

involved the extension of a longstanding Board interpretation that predated

the enactment of the revised statutory provision in question. We found evidence that our interpretation had been considered and accepted by Congress

in its subsequent comprehensive revision of the immigration laws. See Matter of S-, 6 I&N Dec. 392, 394-96 (BIA 1954; A.G. 1955). Therefore, in Silva,

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there was a Board interpretation to evaluate under the equal protection

analysis.

Here, in contrast, section 274C and section 212(a)(6)(C)(i) are completely

new provisions added by the Immigration Act of 1990, Pub. L. No. 101-649,

104 Stat. 4978. The language is unambiguous, and there is no argument that

Congress was endorsing and accepting a prior Board interpretation applying

the misrepresentation waiver to inadmissibility resulting from a section 274C

fine.

If we were to interpret the waiver under section 212(i) as applying to section

212(a)(6)(F) inadmissibility, we essentially would be holding that the failure

of Congress to provide a waiver under the latter section is an unconstitutional

denial of equal protection. Clearly, our authority to interpret the law does not

extend that far. See Matter of Patel, 19 I&N Dec. 774, 787 (BIA 1988).

III. CONCLUSION

For the foregoing reasons, I cannot adopt the Immigration Judge’s reasoning in this particular situation. The resulting total bar to the exercise of discretion and the consideration of individual equities in cases such as this is

troublesome. Perhaps our decision will spur legislative reexamination of the

practical problems resulting from the implementation of section 274C. However, for the present, I must concur in the result reached by the majority in

this case.

CONCURRING OPINION: Lory D. Rosenberg, Board Member, in

which David B. Holmes and John W. Guendelsberger, Board Members, joined

I respectfully concur.

I conclude that the statute requires the reversal of the decision of the Immigration Judge in this case because, where the intent of Congress is clearly

expressed in a law, that “is the end of the matter.” Chevron v. Natural

Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). I write separately to add to the concurrence of Chairman Paul W. Schmidt, with whose

legal analysis I agree, my concerns regarding the breadth of the provision in

question and the severity in reality of the result it mandates.

Let us put a human face on the impact of this statute generally and in the

case before us. The respondent, who is an applicant for adjustment of status

under section 245(i) of the Immigration and Nationality Act, 8 U.S.C.

§ 1255(i)(1994), is the spouse of a lawfully admitted permanent resident and

the beneficiary of an approved visa petition. She entered the United States

from Bolivia in 1989 as a nonimmigrant visitor for pleasure and overstayed

the period of her admission in that status. She is married and has two young

United States citizen children who are toddlers. She resides with her husband

and children in the United States. Her husband, who became a lawful

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permanent resident through the “amnesty” program (which legalized the status of those persons present in the United States continuously since before

January 1, 1982), petitioned for the respondent’s classification as a beneficiary eligible to apply for permanent residence as early as March 1991.

The applicant admittedly worked without authorization while remaining

in the United States and waiting for the priority date of her husband’s petition

on her behalf to become current. In April 1994, the Immigration and Naturalization Service initiated civil fine proceedings against the applicant under

section 274C of the Act, 8 U.S.C. § 1324c (1994), on the basis of her having

provided false documentation in connection with obtaining employment.

Were it not for the final civil fine order under section 274C, the applicant otherwise would be admissible to the United States as an immigrant and would

be able to continue to reside with her family and raise her children as a contributing member of our society. However, a section 274C final order for

civil document fraud gives rise to a charge of excludability under section

212(a)(6)(F) of the Act, 8 U.S.C. § 1182(a)(6)(F)(1994). As it is, she not only

is deportable, but is inadmissible as an immigrant, and cannot obtain lawful

permanent resident status either through adjustment of status or through consular visa processing abroad.

The statute provides a legal response to certain forms of document fraud,

not only by imposing civil fines, but then by permanently deporting and

excluding violators without exception. The reach of the statute is extremely

broad and encompassing; it sanctions not only major counterfeiters, dealers,

and purveyors of fraudulent documents, but holders or users. It is fair to say

that the thrust of the civil document fraud section of the statute is intended to

secure the integrity of our legal immigration system by deterring and penalizing fraud and misuse of documents. Yet its violation is inexorably linked to

permanent removal and expulsion. Given the cause and effect relationship

between civil document fraud and permanent expulsion, it is curious and

indeed unfortunate that, in a statutory scheme replete with the delegation of

discretion to the Attorney General, there is none so delegated here.

I am troubled by the apparent inconsistency of this provision as compared

to both longstanding and concurrent statutory provisions which allow either

blanket or discretionary exceptions in individual cases involving comparable

conduct. We do not absolutely separate families, nor do we forever bar from

joining their families, those who have transgressed by accepting unauthorized employment, overstaying temporary admission periods, or engaging in

violation of other provisions of the Act. Indeed, Congress has carved out statutory exceptions and waivers to overcome these impediments to attaining

lawful status.

These provisions not only do not bar absolutely the immigration of persons who have engaged in unauthorized employment, but disregard such

conduct as a bar to adjustment of status in the United States. For example, the

statute contains a provision that “forgives” unauthorized employment for

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applicants who are married to United States citizens. See section 245(a) of

the Act. Congress thus contemplated that adjustment applicants might have

engaged in unauthorized employment and explicitly chose not to penalize at

all those married to United States citizens for such a transgression. Further,

Congress then enacted a provision which allows those applicants who

worked without authorization and are not married to United States citizen but

to lawful permanent residents, as in this case, to apply for adjustment of status notwithstanding their employment related transgression. See section

245(i) of the Act.

The result in this case, denial of adjustment of status and deportation, is

attributable to the fact that this applicant obtained employment from a private

employer, ironically, not an immigration benefit. In other instances the result

could depend only upon the particular charge lodged by the Service. This

outcome stands in stark contrast to the treatment of other applicants for

admission who have engaged in immigration-related fraud. In particular it is

a departure from the treatment of those charged with violations of section

212(a)(6)(C), in which a waiver is available under section 212(i) for acts

which, if not identical, may be of comparable degree. The majority explains

this by suggesting that Congress may have believed oral misrepresentations

to be of less consequence than violations related to documents. Whether or

not that is the case, we may never know. In any event, that does not resolve

the apparent disparity in the treatment of those subject to civil document

fraud orders, because section 212(a)(6)(C) also includes documents.

We do know that by precluding an alien from access to relief from the consequences of exclusion and deportation indiscriminately, without even

examining the nature of the fraud constituting the basis for the violation, we

may unknowingly exclude or deport otherwise admissible persons who, had

they been charged under subsection (C) instead of (F), would be deserving of

a discretionary consideration. This counteracts one of the most basic purposes of the Act - family unity. Individual use of a fraudulent document to

obtain employment enabling a parent to feed, clothe and house her United

States citizen children, in my view, is quite distinct from widespread production or distribution of fraudulent documentation for a third party’s profit,

which frustrates enforcement and enables flaunting of the immigration laws.

Nonetheless, the statute provides no such process for examination or differentiation of the nature of the document fraud involved, offers no waiver, and

mandates denial.

While I would find the result is harsh and difficult to reconcile with the

remainder of the existing statutory scheme, neither evidence nor argument

has been presented which would require the conclusion that it is irrational,

absurd, or does not “give effect to the unambiguously expressed intent of

Congress.” Chevron v. Natural Resources Defense Council, Inc., supra, at

843. Under these circumstances, I have no choice, notwithstanding my concerns, but to concur.

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