Ninth Circuit Finds Son of U.S. Citizen Remains Such After Citizen's Death and Remains Eligible for § 237(a)(1)(H)(i) Waiver.

The U.S. Court of Appeals for the Ninth Circuit, in reviewing the decision of the Board of Immigration Appeals (BIA or Board) in Matter of Federiso, 24 I. & N. Dec. 661 (B.I.A. Oct. 23, 2008), has held that the Board erred in holding that the son of a U.S. citizen was not eligible for a waiver of inadmissibility under INA § 237(a)(1)(H)(i) [8 USCA § 1227(a)(1)(H)(i)] because his citizen mother died before a decision was rendered on his waiver application, Federiso v. Holder, 2010 WL 1980763 (9th Cir. May 19, 2010).

The petitioner is a Filipino national who entered the U.S. as a lawful permanent resident in November 1986 as the unmarried son of a U.S. citizen (his mother). Fifteen years later, removal proceedings were initiated against him because he had falsely represented that he was unmarried when he applied for his visa, rendering him inadmissible and therefore removable under INA § 212(a)(6)(C)(i) [8 USCA § 1182(a)(6)(C)(i)] for having procured his visa by fraud or willful misrepresentation. The petitioner requested relief under INA § 237(a)(1)(H)(i) which gives an immigration judge (IJ) the discretion to waive the removal of an immigrant who procured a visa through willful misrepresentation if the immigrant “is the spouse, parent, *1050 son, or daughter” of a U.S. citizen or lawful permanent resident. The removal proceedings dragged on for years, and, after the proceedings had been initiated but before the hearing on the petitioner's request for § 237(a)(1)(H)(i) relief, his mother died. At the hearing, the petitioner and the Department of Homeland Security (DHS) disagreed about whether the petitioner was still eligible to apply for a § 237(a)(1)(H)(i) waiver. The IJ held that he was since he “continues to be the son of a United States citizen” after the death of his U.S.-citizen mother. The IJ then examined a long list of equities in the petitioner's favor and granted the waiver. DHS appealed, and the BIA, agreeing with DHS, held that “to be eligible for a waiver of removal” under § 237(a)(1)(H)(i), “an alien must establish a qualifying relationship to a living relative” (emphasis added). Because the petitioner's mother was no longer living, the BIA held that he was no longer eligible to apply for the waiver. The BIA therefore vacated the IJ's decision and ordered the petitioner removed to the Philippines. The petitioner sought review by the court of appeals.

The court acknowledged that, where there is ambiguity in the statute, it must defer to the agency's interpretation, but found the text of § 237(a)(1)(H)(i) plain and unambiguous and the Board's interpretation clearly contrary to the plain meaning of that text.

INA § 237(a)(1)(H) provides that:

The provisions of this paragraph relating to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission as aliens described in section 212(a)(6)(C)(i), whether willful or innocent, may, in the discretion of the Attorney General, be waived for any alien (other than an alien described in paragraph (4)(D)) who-- (i) (I) is the spouse, parent, son, or daughter of a citizen of the United States or of an alien lawfully admitted to the United States for permanent residence; and (II) was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility specified under paragraphs (5)(A) and (7)(A) of section 212(a) which were a direct result of that fraud or misrepresentation.

This text, the court said, “clearly states that the son of a citizen of the United States may be eligible for a waiver of removal.” Since neither DHS not the BIA disputed that the petitioner was the son of a U.S. citizen, the court opined that that alone was enough to resolve the case. However, the court also pointed out that, while the Board interpreted the statutory provision to apply only to a living citizen, “this is not what the statute says.”

The court also found that the BIA erred in relying on two Ninth Circuit decisions which held that the purpose of the waiver was to promote family unity and that waivers should not be granted in instances in which that purpose would not be furthered: Chung Wood Myung v. District Director of U.S. Immigration & Naturalization Service, 468 F.2d 627 (9th Cir. 1972) (finding that the waiver should not be granted for the father where the U.S. citizen child lived in Korea with his mother), and Kalezic v. Immigration and Naturalization Service, 647 F.2d 920 (9th Cir. 1981) (finding that, where the alien was divorced from his U.S. citizen wife and thus family unity was not applicable, the waiver would not be granted). The court found Kalezic of little value in adjudicating the instant case since it involved a marital relationship, not “the wholly distinct relationship between parent and child.” While a husband ceases to be his wife's spouse upon divorce, the court pointed out that “[A] child never ceases to be his mother's son. He always is her son, even after her death.”

The court found Myung more relevant since it involved a parent-child relationship but explained that, in the decades since it issued Myung and Kalezic, both the statutory text at issue and the role of the interpreter have changed. The court pointed out that, when it decided these two cases, it looked to the purpose of the statute rather than to its language but that now it is governed by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and its progeny, and, unless the “statute is silent or ambiguous with respect to the specific issue” before the court, the court's work is done. Here, the court reiterated, the statutory language at issue is plain: the son of a U.S. citizen may be eligible for a waiver. Also, the court noted, when Myung and Kalezic were decided, the waiver was mandatory whereas it is now discretionary. Thus, the court said, whether an alien is eligible for a waiver is a question of statutory interpretation fit for judicial review whereas whether issuing § 237(a)(1)(H) relief to a particular alien is consistent with the statute's underlying purpose is a case-by-case policy determination that the statutory text commits not to the courts but to the discretion of the Attorney General and his designee the IJ. Neither the BIA nor the court may further its preferred interpretation of Congress' intent by misreading or adding to the statutory eligibility requirements that Congress has laid out quite clearly, the court concluded. Accordingly, the court granted the petition for review and remanded the matter to the Board for further proceedings.
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BIA Finds Fraud Waiver Applicant’s Qualifying Relative Must be Living to Establish Eligibility.

BIA finds that the purpose of a fraud waiver under INA §237(a)(1)(H)(i)(I) is clear from the statutory language and court interpretations - to unite aliens with their living USC or LPR family members. Concludes that because the waiver applicant’s mother is deceased, he lacks the qualifying relative. Matter of Federiso, 24 I&N Dec. 661, (BIA 2008). To be eligible for a waiver of removal under INA § 237(a)(1)(H)(i) [8 USCA § 1227(a)(1)(H)(i)] (2006), an alien must establish a qualifying
relationship to a living relative, the Board of Immigration Appeals (BIA or Board) has held. Matter of Federiso, 24 I. & N. Dec. 661 (B.I.A. Oct. 23, 2008).