On February 26, the Board of Immigration Appeals (BIA) — the DOJ panel that reviews immigration decisions — issued an opinion in Matter of Fortjoe, dismissing an appeal filed by an alien who’d engaged in marriage fraud. More importantly, the Board reversed a decade-old decision that broadly waived fraud committed by aliens after they had been admitted to the United States.
Francis Jude Fortjoe
The respondent is Francis Jude Fortjoe, a national of Ghana who was admitted to the United States in 1995.
In 2002, he married a U.S. citizen identified as “Emma”, and Emma filed an I-130, petition for alien relative, on his behalf — a key first step that would allow him to obtain a green card through a process known as “adjustment of status”.
Five years later, in 2007, he was interviewed by USCIS in connection with that visa petition, but failed to disclose some very salient facts, specifically that he’d fathered two children by a different woman, “Christy”, who like Fortjoe was a Ghanian national, in 2004 and 2007.
Needless to say, having children by a different woman suggests one’s current green-card marriage isn’t on the up-and-up, but because USCIS didn’t know about Fortjoe’s extramarital offspring, it approved the I-130 filed by Emma in July 2007 and he received his green card.
Not surprisingly, Fortjoe and Emma thereafter divorced, and he subsequently married Christy, the mother of his children.
When Fortjoe applied for naturalization in 2012, he told USCIS about his two kids, and the agency in turn denied his citizenship application and in 2013 placed him into removal proceedings, charging he was removable because he was inadmissible due to fraud when he adjusted his status, as I’ll explain below.
Fortjoe’s Applications for Relief
In 2015, Fortjoe conceded he was removable but filed two applications for “relief” from removal that, if granted, would have allowed him to remain here.
The first was a “fraud waiver” under section 237(a)(1)(H) of the Immigration and Nationality Act (INA), and the other was a second application for adjustment of status under section 245(a) of the INA with an application for a waiver of his fraud inadmissibility under section 212(i) of the INA.
In case you’re wondering, this second adjustment application was premised upon an I-130 filed by his second wife, Christy, the mother of his children who is now a U.S. citizen.
If the immigration judge had granted Fortjoe’s application for the 237(a)(1)(H) fraud waiver, he would have been permitted to keep his current green card, whereas if he were granted adjustment of status with a 212(i) waiver, he would receive a brand-new green card.
The Immigration Judge’s Decision
At the end of those immigration court proceedings, the immigration judge concluded Fortjoe wasn’t credible, “based on misrepresentations about Christy’s relationship with his children and when she began living with him, his failure to disclose his children during the pendency of Emma’s visa petitions”, and his claim that he wouldn’t be able to support himself in Ghana if he were removed.
Did I mention that Fortjoe and Christy “have each earned significant annual salaries while employed at a well-known financial company”?
In any event, the immigration judge denied Fortjoe’s applications for adjustment of status and a 212(i) waiver (which required him to show extreme hardship to his wife if he were removed) and concluded the respondent had failed to show he deserved a 237(a)(1)(H) fraud waiver in the exercise of discretion.
Fortjoe subsequently filed an appeal of the immigration judge’s decision with the BIA, and while the portion of the Board’s opinion that addresses his second adjustment application is interesting, it doesn’t break new ground. Consequently, my analysis focused solely on the section 237(a)(1)(H) fraud waiver.
Deportability under Section 237(a)(1)(A) of the INA
Section 237(a)(1)(H) fraud waivers are discretionary, meaning that even if applicants prove they are statutorily eligible for that relief, they must still prove they are deserving of a waiver. As noted, the immigration judge held Fortjoe failed to do so, and the BIA affirmed that holding.
But the Board’s opinion went further, and explaining why its holding is important — and why Matter of Fortjoe corrects a decade-old mistake — requires a dive into the ground of removability in this case.
As noted, Fortjoe was initially admitted as a nonimmigrant and received his green card through adjustment of status under section 245(a) of the INA.
That section requires a nonimmigrant to satisfy three requirements to receive lawful “immigrant” status: (1) he must file an adjustment application; (2) prove he is “eligible to receive an immigrant visa and is admissible to the United States for permanent residence”; and (3) establish “an immigrant visa is immediately available to him at the time his application is filed”.
Adjustment is a convenience Congress provided aliens present here who are eligible to receive green cards, as it allows them to “immigrate” here without departing the United States and going through consular processing abroad.
When Fortjoe applied for a green card through adjustment of status, he satisfied the first and third requirements in section 245(a): he had filed his adjustment application (Form I-485); and USCIS had approved the I-130 immigrant visa petition Emma had filed on his behalf.
The problem was that, by “willfully misrepresenting a material fact” — his lack of candor about his fraudulent marriage to Emma and his children with Christy — Fortjoe sought “to procure” a “visa ... or other benefit provided under the INA” and therefore was “inadmissible” under section 212(a)(6)(C)(i) of the INA.
Once USCIS discovered Fortjoe’s fraudulent marriage, it charged him with removability under section 237(a)(1)(A) of the INA, which renders deportable any alien “who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time”.
That’s where section 212(a)(6)(C)(i) of the INA came in, because Fortjoe’s adjustment fraud made him inadmissible, and thus provided the predicate ground of inadmissibility for the section 237(a)(1)(A) charge.
A Short History of Fraud Waivers
DHS apparently had Fortjoe dead to rights on the marriage fraud, so he conceded removability to the charge to reapply for adjustment with a section 212(i) fraud waiver and for a separate, section 237(a)(1)(H) fraud waiver.
Section 237(a)(1)(H) gives immigration judges and the BIA authority to waive a 237(a)(1)(A) deportability charge that “relat[es] to the removal of aliens within the United States on the ground that they were inadmissible at the time of admission” — based on fraud under section 212(a)(6)(C)(i) of the INA, if the applicant (inter alia) is married to a U.S. citizen “and was otherwise admissible to the United States at the time of such admission except for” the documentary grounds of inadmissibility, “which were a direct result of that fraud or misrepresentation” (emphasis added).
In other words, it allows, for example, an alien at a port of entry with a visa or other document that was procured by fraud to be admitted, provided the alien has a qualifying relative and is not subject to any other grounds of inadmissibility.
That may sound rather gracious, but fraud has likely always been a part of the immigration system, and exceptions to excludability for fraud at “entry” appeared in the INA as early as 1957 (when, in part, they roughly mirrored the current asylum provisions in section 208 of the INA).
At that time, implementation of the INA was governed by what was known as the “entry doctrine”. That doctrine distinguished between aliens who had “entered” the United States (lawfully and unlawfully) and those who were stopped at the ports and borders before “entering”.
The former were placed into “deportation proceedings”, at which they were entitled to a full raft of rights, while the latter went into “exclusion proceedings”, where they were entitled only to the rights Congress had given them.
Congress ended the entry doctrine by statute in 1996, when it replaced “deportation” and “exclusion” proceedings with unified “removal proceedings", and delineated between aliens who had been “admitted” to the United States and the rest, who were deemed “applicants for admission” instead of focusing on whether the alien had “entered”.
Also in 1996, Congress amended section 101(a)(13) of the INA to strike the term “entry” (“any coming of an alien into the United States”) and replace it with “admission”, defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer”.
Prior to 1996, however, the BIA and various circuit courts concluded fraud waivers under predecessor provisions to section 237(a)(1)(H) of the INA only applied to aliens at the time of “entry” — not to subsequent fraud committed when aliens adjusted status under section 245(a) of the INA.
The current language in section 237(a)(1)(H) of the INA was enacted as part of those 1996 reforms, and as the highlighted language in that statute shows, the waiver only references fraud “at the time of admission” — not during adjustment.
Matter of Agour, Overruled
Notwithstanding the language in section 237(a)(1)(H) of the INA, and the statutory history of prior fraud waivers, the BIA in its May 2015 opinion in Matter of Agour concluded that “adjustment of status constitutes an ‘admission’ for purposes of determining an alien’s eligibility to apply for a waiver” under that post-1996 statute.
Matter of Agour was a split decision, with two Board members in the majority and Board Member Roger Pauley in dissent.
Pauley noted that while there were instances where it was appropriate for the BIA to define “adjustment of status” under section 245(a) as an “admission” to avoid “absurd or bizarre consequences”, this wasn’t one of them, particularly given that there was no indication that Congress in amending section 237(a)(1)(H) in 1996 intended to expand the waiver to include aliens who committed fraud after they’d been admitted.
If Matter of Agour sounds familiar, the immigration judge in the removal proceedings of Mahmoud Khalil (the Columbia University “activist” whose case became a cause célèbre after Secretary of State Marco Rubio attempted to deport him on foreign policy grounds) distinguished it in denying Khalil’s section 237(a)(1)(H) fraud waiver and ordering him removed (the case is currently on appeal to the BIA).
In Matter of Fortjoe, the BIA overruled its (clearly erroneous) opinion in Matter of Agour, concluding it was “reasonable and compliant to define ‘admission,’ as provided in section 237(a)(1)(H) of the INA ... by its plain and natural meaning as an entry after inspection” — not an adjustment of status.
Because it was overruling prior precedent, however, the BIA concluded it was appropriate to apply this rule only “prospectively”, to not upset cases involving aliens who relied on the Matter of Agour rule.
How that plays out in Khalil’s case is unclear, given that the immigration judge there concluded Matter of Agour was not controlling in the face of what she deemed contrary Fifth Circuit precedent, but it raises the question of whether aliens should be deemed to have relied on the availability of a waiver when they were contemplating adjustment fraud (particularly marriage fraud).
Second BIA Marriage Fraud Opinion in Less than Two Weeks
Matter of Agour is the BIA’s second precedential opinion dealing with marriage fraud in less than 13 days (the other being Matter of Jin, which I recently analyzed). Given how readily the INA accords benefits to purported spouses of citizens and green card holders, it’s appropriate for the Board to crack down on abuses — and to correct its own mistakes, even if it is a decade late.