The 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.