When a person is accused of having obtained the permanent residence through fraud, the BIA has for more than a decade held that the person has not been "lawfully admitted for permanent residence" and thus is not eligible for cancellation of removal as a permanent resident or for a waiver under INA 237(a)(1)(H). See Matter of Koloamatangi, 23 I&N Dec. 548 (BIA 2003).
But last month, the BIA issued its precedential decision in Matter of Agour, 26 I&N Dec. 566 (BIA 2015), holding that an immigrant who had been accused of adjusting his status through a fraudulent marriage was nevertheless lawfully admitted for permanent residence and could apply for a waiver under INA 237(a)(1)(H). The Board did not mention Koloamatangi, although Board member Roger Pauley observed in his dissent that the majority had, in essence, decided that waivers under INA 237(a)(1)(H) were available to excuse "not only fraud at the time of entry, but also fraud at the time of adjustment."
Then last week, in Matter of Pena, 26 I&N Dec. 613 (BIA 2015) the BIA issued a decision discussing how lawful permanent residents returning from a trip abroad are to be charged. In its final paragraph, the majority seemed to reaffirm Koloamatangi, writing that
"If the DHS can meet its burden of proving that the respondent is deportable as an alien who acquired lawful permanent resident status through fraud, then in terms of available relief from removal, the respondent will be in the same position he would have been in if he had never obtained such status."How can the Board hold in Matter of Agour that an immigrant charged with fraud is eligible for a waiver under INA 237(a)(1)(H) but only a month later hold that he is not? Neither decision references the other and neither is well-explained.
We represent immigrants accused of obtaining their status through fraud. Please feel free to get in touch if you have an appeal or immigration court case that raises these issues.