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New Jersey Appellate Court Reviews Waiver of Inadmissibility Claim in Immigration Case

New Melones LakeThe Immigration and Nationality Act (INA) identifies multiple grounds of inadmissibility to the U.S. These include criminal history, national security concerns, prior immigration violations, and health concerns. The INA allows the government to make exceptions with regard to fraud-related activities, based on the impact inadmissibility or removal would have on relatives in the U.S. The Third Circuit Court of Appeals in New Jersey recently reviewed the procedures for this type of waiver in Park v. Atty. Gen., 846 F.3d 645 (3rd Cir. 2017). This issue is unlikely to affect most prospective New Jersey immigrants, but it is important information to consider when planning a visa application.

A “§ 212(i) waiver of inadmissibility,” named for the section of the INA that defines it, applies to individuals previously held to be inadmissible for fraud, willful misrepresentation of a material fact, or falsely claiming U.S. citizenship in connection with seeking an immigration-related benefit. 8 U.S.C. §§ 1182(i), (a)(6)(C). An individual seeking a waiver must first establish that they are “the spouse, son, or daughter of a United States citizen” or lawful permanent resident (LPR). Id. at § 1182(i)(1). They must then show that denying them entry to the U.S. would cause “extreme hardship” to that individual’s relatives. Id. The Department of Justice (DOJ), through the Executive Office for Immigration Review (EOIR), has discretion to decide whether to grant a waiver.

The statute specifically denies the courts jurisdiction to review DOJ decisions regarding this type of waiver. Id. at § 1182(i)(2). Within the EOIR, however, a review process is available at the Board of Immigration Appeals (BIA). Both the immigration courts and the BIA are bound by their own precedential decisions and established practices. The impact of prior decisions on the BIA was a major aspect of the appellant’s argument in Park.

The appellant is a South Korean citizen who first came to the U.S. on a visitor visa in 1999. He applied to adjust status to lawful permanent resident several years later, after his employer’s immigrant visa petition was approved. Immigration authorities denied his application, however, partly based on an allegation of false statements regarding his employment. In early 2016, the appellant filed a motion to reopen his case based on eligibility for a § 212(i) waiver. He stated that, since his case was closed, his parents had become LPRs, and he claimed that they would suffer an undue hardship if he were removed from the U.S.

By that time, the appellant’s only procedural option was to request a sua sponte reopening of his case by the BIA under 8 C.F.R. § 1003.2. The BIA denied his motion. The appellant argued to the Third Circuit that the BIA routinely approved such requests for people in similar situations. He claimed that the court had jurisdiction to review the BIA’s decision under the “settled course” exception, which states that “the BIA may not depart [from a ‘settled course of adjudication’] without explaining itself.” Park, 846 F.3d at 648; see also Cruz v. Atty. Gen., 452 F.3d 240, 249-50 (3rd Cir. 2006). The court agreed that it could have jurisdiction under such circumstances, but it held that the BIA’s ruling did not meet this standard in this case.

Immigration attorney Samuel C. Berger practices in the Northern New Jersey and New York City areas, representing immigrants and prospective immigrants, their family members, and their employers. Contact us today online, at (201) 587-1500, or at (212) 380-8117 to schedule a confidential consultation with a member of our knowledgeable and experienced team.

More Blog Posts:

USCIS Has Jurisdiction Over Certain Requests for Waivers of Inadmissibility, According to Appellate Panel, New York & New Jersey Immigration Lawyer Blog, April 13, 2017

Marriage Fraud Conviction Causes BIA to Deny Request for Waiver, New York & New Jersey Immigration Lawyer Blog, February 23, 2017

USCIS Issues Ruling on Qualifications for National Interest Waivers, New York & New Jersey Immigration Lawyer Blog, January 26, 2017

Photo credit: Bureau of Reclamation [CC BY-SA 2.0], via Flickr.