United States: Removal proceedings pursuant to Immigration and Nationality Act (INA) Sec. 237(a)(1)(A) of an accepted refugee and permanent resident, due to a finding of misrepresenting a material fact in an asylum claim; whether a decision to find someone removable and stripping them of their asylum and permanent resident status due to misrepresentation is made without the person being permitted to provide new evidence of risk that was not submitted at the time of granting asylum; possibility of waiver of removal (2017-January 2019) [USA106233.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Removal Proceedings Pursuant to INA Sec. 237(a)(1)(A)

Sec. 237 (a)(1)(A) of the INA provides the following regarding inadmissible aliens:

(A) Inadmissible aliens.-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 is deportable. (US 1952)

According to an article discussing Sec. 237 of the INA, published on the website of the Law Offices of Grinberg & Segal, PLLC (Grinberg & Segal), an immigration law firm based in New York City,

Section 237(a)(1)(A) is one of the most common deportability provisions. In effect, if an alien is determined to have been inadmissible at the time he or she was admitted into the [US] (or at the time the alien entered under previous laws) or adjustment of status, he or she is deportable under section 237(a)(1)(A). The primary limitation on section 237(a)(3)(A) is that the alien must have been inadmissible under the laws in effect at the time of his or her entry or adjustment of status. Furthermore, section 237(a)(1)(A) does not encompass conduct by an alien that would fall under an inadmissibility provision if the conduct occurred after his or her entry or adjustment of status.

Section 237(a)(1)(A) is prevalent in cases where an alien procures his or her admission or adjustment of status through fraud or misrepresentation (including marriage fraud). In some cases, it may be a secondary charge in removal proceedings. (Grinberg & Segal n.d., emphasis in original)

In correspondence with the Research Directorate, a Senior Partner at a US-based law firm that focuses on immigration law stated the following:

The [INA] renders an individual deportable if that individual was inadmissible at the time of entry or adjustment of status because of a material misrepresentation [under INA Sec. 237(a) (1) (A)]. The material misrepresentation made would have rendered the individual ineligible for entry or adjustment of status [under INA Sec. 212(a)(6)(C)(i).]. In such circumstances, Immigration and Customs Enforcement will allege that the individual was "admitted" as an asylee, but that such admission was unlawful due to a material misrepresentation at the time of entry or adjustment. (Senior Partner 9 Jan. 2019)

In correspondence with the Research Directorate, a US-based immigration lawyer similarly stated that,

[i]f a person has already obtained permanent residency through asylum (i.e., through INA [Sec.] 209), and US Citizenship and Immigration Services (USCIS) later determines that the asylum was obtained by misrepresentation, then removal proceedings pursuant to INA Sec. 240 will be initiated against the person. … The proceedings would be initiated by the procedure outlined in INA Sec. 239 (i.e., issuance of a Notice to Appear, which is then served on the alien and the Immigration Court). Most likely, the person will be charged with removability pursuant to Sec. 237(a)(1)(A) …. Removal proceedings are initiated because the Board of Immigration Appeals has determined that once an asylee adjusts status, he or she is no longer an asylee and therefore not accorded the special protections of that status. (Lawyer 14 Jan. 2019)

In correspondence with the Research Directorate, a USCIS Asylum Officer also stated that "removal proceedings are conducted under INA 240" (US 9 Jan. 2019) and, in follow-up correspondence, further explained that "[r]espondents are placed into [removal proceedings under Sec. 240 of the INA] with an [Immigration Judge with the Executive Office for Immigration Review], and charged with any/all applicable sections of 212(a) and/or 237(a)" (US 10 Jan. 2019a). Sec. 240 of the INA is attached to this Response (Attachment 1).

The immigration lawyer added that

if the misrepresentation was discovered prior to the asylee adjusting status, then the process would differ. If the person had been granted asylum administratively, by USCIS, then the agency would sen[d] a Notice of Intent to Terminate to the asylee listing the reasons and evidence in support of termination/revocation and providing 30 days' notice of an interview [in which] the asylee could provide his or her own rebuttal evidence. … If the person had been granted asylum during removal proceedings by the Immigration Court, then a Motion to Reopen would be filed by [the Department of Homeland Security, DHS] with the Court, alleging the misrepresentation. (Lawyer 14 Jan. 2019, emphasis in original)

The same source further stated that "[n]either of these processes apply where the asylee has already adjusted to permanent residency. Instead, new removal proceedings could be immediately initiated" (Lawyer 14 Jan. 2019). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. New Evidence of Risk

The USCIS Asylum Officer stated the following:

All evidence relative to the removal proceedings and relief requested can be considered by the IJ [Immigration Judge], while the proceedings are ongoing. For respondents requesting [a]sylum this can include evidence of changed personal circumstances and/or changed country conditions.

After the IJ issues a final order, a [r]espondent can seek to re-open the removal proceedings with new evidence subject to the laws and regulations regarding motions to reopen or reconsider at 8 CFR [Code of Federal Regulations] 1003.23. (US 10 Jan. 2019b)

CFR Sec. 1003.23 is attached to this Response (Attachment 2).

Citing case law, the Senior Partner indicated that

an individual who submitted a fraudulent asylum application is barred from seeking any benefits under the [INA]. However, such a respondent is not barred from seeking withholding of removal under INA Sec. 241(b)(3) or relief under the Convention Against Torture. To that extent, regardless of any previous fraud, if the applicant can show that it is "more likely than not" that he or she will be persecuted on account of his or her race, religion, nationality, political opinions or because of membership in a social group, he or she would qualify for withholding of removal and can submit evidence to substantiate the claim in removal proceedings. Similarly, if he or she can show that it is more likely than not that he or she will be tortured for any reason by the government or by other parties with the acquiescence of the government, the applicant can submit evidence in support of a claim for relief under the Convention Against Torture. (Senior Partner 9 Jan. 2019)

The lawyer stated that

new evidence of risk upon return to a person's home country may be presented during the removal proceedings …. This would be in the form of a new application for asylum, pursuant to INA Sec. 208. The removal proceedings pursuant to INA Sec. 240 are "regular" removal proceedings, [according to which] the person can apply for any and all relief for which he or she may be eligible. The new evidence of risk may be considered an asylum application, and not just an application for withholding of removal, because regulations permit filing of an application for asylum outside of the one-year deadline where a person maintained lawful status until a reasonable period before the filing of the asylum application. … Necessarily, this application would have to be submitted during the course of removal proceedings, and prior to the Immigration Court issuing a final removal order. (Lawyer 14 Jan. 2019)

3. Possibility of Waiver of Removal

According to the Senior Partner, in the case of an individual rendered deportable under INA Sec. 237(a)(1)(A), "the appropriate waiver to remedy the fault admission is the [Sec.] 237(a)(1)(H) waiver" (Senior Partner 9 Jan. 2019).

Sec. 237(a)(1)(H) of the INA provides the following:

(H) WAIVER AUTHORIZED FOR CERTAIN MISREPRESENTATIONS. -- 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-

  1. 5a/ 
    1. 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
    2. 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.
  2. 5a/ 5aa/ is a VAWA [Violence Against Women Act] self-petitioner.

A waiver of removal for fraud or misrepresentation granted under this subparagraph shall also operate to waive removal based on the grounds of inadmissibility directly resulting from such fraud or misrepresentation. (US 1952)

The Senior Partner explained that, according to case law,

[t]o be eligible for the waiver, the applicant had to otherwise be in possession of a valid immigrant visa or the equivalent, he or she must have a qualifying relative and at the time of admission must have been otherwise admissible but for the alleged misrepresentation. A waiver under Sec. 237(a)(1)(H) would serve to waive the underlying charge of deportability for being inadmissible at the time of entry or adjustment of status under Sec. 237(a)(1)(A). Such a waiver would cure the alleged misrepresentation nunc pro tunc as if it never occurred. Thus, a waiver under Sec. 237(a)(1)(H) would not grant the applicant a new admission as a lawful permanent resident - rather, it would serve to repair the applicant’s existing lawful permanent resident status first granted. (Senior Partner 9 Jan. 2019)

Further information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

The Law Offices of Grinberg & Segal, PLLC (Grinberg & Segal). N.d. "Section 237 Deportability Statutes: Inadmissible at Time of Entry or of Adjustment of Status or Violates Status." My Attorney USA. [Accessed 11 Jan. 2019]

Lawyer. 14 January 2019. Correspondence with the Research Directorate.

Senior Partner. 9 January 2019. Correspondence with the Research Directorate.

United States (US). 10 January 2019a. Citizenship and Immigration Services (USCIS). Correspondence from an Asylum Officer to the Research Directorate.

United States (US). 10 January 2019b. Citizenship and Immigration Services (USCIS). Correspondence from an Asylum Officer to the Research Directorate.

United States (US). 9 January 2019. Citizenship and Immigration Services (USCIS). Correspondence from an Asylum Officer to the Research Directorate..

United States (US). 1952 (amended 2013). "INA: Act 237 - General Classes of Deportable Aliens." Immigration and Nationality Act (INA). [Accessed 11 Jan. 2019]

Additional Sources Consulted

Oral sources: four lawyers who work on US immigration law; Heartland Alliance; Human Rights First; two law professors who work on US immigration law; US – embassy in Ottawa, Immigration and Customs Enforcement; US Committee for Refugees and Immigrants.

Internet sites, including: American Bar Association; Americans for Immigrant Justice; Catholic Legal Immigration Network, Inc.; Columbia Law Review; Immigrant Legal Resource Center; Immigrant's Weekly; Justia; National Lawyers Guild; Stone Grzegorek & Gonzalez LLP; United Nations – Refworld; University of Minnesota Human Rights Library; Washington University in St. Louis School of Law.

Attachments

  1. United States (US). "INA: Act 240 - Removal Proceedings." Immigration and Nationality Act (INA). [Accessed 11 Jan. 2019]
  2. United States (US). "§1003.23 Reopening or Reconsideration Before the Immigration Court." Code of Federal Regulations (CFR). [Accessed 11 Jan. 2019]