By Attorney Farhad Sethna © 2015
On January 6, 2015, the 6th Circuit of the United States Court of Appeals, based in Cincinnati issued an opinion in Fayzullina v. Holder, 13-4335.
In Fayzullina, the 6th Circuit panel found that the petitioner, Fayzullina, had indeed committed marriage fraud. This marriage fraud was in turn considered to be a crime involving moral turpitude (CIMT) for which no waiver was available. Therefore, Fayzullina’s appeal was dismissed.
The facts as set forth in the opinion are fairly typical of a adjustment of status case through marriage to a US citizen spouse:
Fayzullina married her US citizen husband, Matthew Grey on March 17, 2006 after entering the USA from Russia on May 31, 2005. The US citizen spouse petitioned for her as an immigrant relative, and Fayzullina petitioned for adjustment of status (green card). The application was approved on August 26, 2008.
Fayzullina then traveled overseas, and reentered the United States in January 2009.
It seems clear that at the time of the reentry, Fayzullina must have been interviewed and made some comments which might have incriminated her, because she was indicted on August 5, 2009, barely eight months after reentering the United States. Fayzullina pled guilty to one of the three counts of the indictment, in which she admitted that she “did knowingly and wilfully make and use a material false writing and document by presenting to the USCIS an Application to Register Permanent Residence or Adjust Status, knowing the same to be false; that is false and misleading information regarding her marital status including her residence information.” (I have changed the wording slightly to make the charge more readable).
Having admitted her guilt, the court sentenced Fayzullina to two years of probation.
Subsequently, on September 30, 2010, the Department of Homeland Security initiated removal proceedings against Fayzullina by serving her with a Notice to Appear.
Fayzullina denied her removability, and asserted that even if she were removable, she qualified for a waiver of the grounds of removability.
The first defense Fayzullina had was that the government had not adequately established that her misrepresentation on her form I-485 or during her Adjustment of Status interview was material.
Fayzullina also denied that she had not been convicted of the statute set forth in the Notice to Appear, because the NTA cited the wrong statute. Instead of 18 U.S.C. §1001(a)(2), the correct statute was (a)(3).
The Immigration Judge (IJ) nevertheless found Fayzullina removable. She then appealed to the Board of Immigration Appeals (BIA) which upheld the IJ’s decision and denied her application for relief. Thereafter, Fayzullina appealed to the 6th Circuit Court of Appeals, which issued its decision sustaining (upholding) the BIA decision and in turn, the IJ’s decision.
WHAT DID THE 6th CIRCUIT DECISION HOLD?
Rather than going into every little nuance of the 6th Circuit decision, I will address only the pertinent issues below:
II. Fayzullina also petitioned the Immigration Judge for a waiver of removal under both 8 U.S.C. §1227 (a)(1)(H) [hereafter the “H” waiver] and separately under 8 U.S.C. §1182 (h) [hereafter the “h” waiver]
The (H) waiver allows a spouse, parent, son or daughter of a US citizen or a Legal Permanent Resident to obtain a waiver except if the inadmissibility is a direct result of fraud or misrepresentation.
Because the Immigration Judge found that Fayzullina’s fraud or misrepresentation led to her conviction, and it was the conviction that directly resulted in a charge of removability, not the underlying action, the IJ held that the (H) waiver would not apply.
With regard to (h) waiver, the Immigration Judge found that Fayzullina did not qualify because she had not acquired a minimum of seven years of lawful continuous presence in the USA. Even assuming that Fayzullina entered the USA on May 31, 2005, because she was served with the Notice to Appear on September 30, 2010, the service of that notice “stopped time” and therefore Fayzullina had been in the country for just over five years before the government initiated removal proceedings.
III. The 6th Circuit cited and upheld prior BIA decisions holding that “crimes involving fraud or making false statements [involved] moral turpitude”. The 6th Circuit agreed with the BIA and cited its own precedents that crimes of deliberate dishonesty involving material facts are categorically moral turpitude offenses. Therefore, Fayzullina’s misstatements to the Immigration Service both on the form I-485 as well as orally, constituted a false statement to the government which were material and therefore, these statements were inherently crimes involving moral turpitude. The elements of materiality and knowledge, the 6th Circuit held, are “manifestly present in Fayzullina’s case.”
IV. The 6th Circuit found that a person who pleads guilty under 18 U.S.C. §1001 (a)(3) “necessarily admits having knowingly used a document that is materially false, fictitious, or fraudulent. Since materiality and scienter [knowledge] are inescapably present in [a] plea….pleading guilty to violating 18 U.S.C. §1001 (a)(3) is tantamount to admitting to a crime involving moral turpitude.”
V. The 6th Circuit also held that the Immigration Judge’s decision to change the provisions of the Notice to Appear to correct the statutory violation from (a)(2) to (a)(3) was not a due process violation in the immigration context without a showing of prejudice. In other words, in order to show that the Immigration Judge’s action affected the respondent in a negative manner, the respondent must demonstrate not only that a mistake had been made, but also that the alleged violation affected the outcome of the proceeding.
The 6th Circuit held, that the IJ’s sua sponte [self-made unilateral decision] correction did not prevent Fayzullina from reasonably presenting her case. The 6th Circuit cited the Supreme Court case United States v. Hougham, 364 U.S. 310, 317 (1960) [the purpose of proper pleading is to facilitate a proper decision, and it is gamesmanship to try to catch any failure to correct errors].
VI. The 6th Circuit went on to discuss whether the (H) or (h) waivers should apply in Fayzullina’s case. The 6th Circuit held that the waiver under 8 U.S.C. §1227 (a)(1)(H) was inapplicable to her because that section explicitly applied only to findings of removability based on section 1227 (a)(1), not to 1227 (a)(2). In this regard, the 6th Circuit followed Taggar v. Holder, 736 F.3d 886, 890 (9th Cir. 2013) and Gourche v. Holder, 663 F.3d 882, 886–87 (7th Cir. 2011). Likewise, the 6th Circuit upheld the IJ and BIA decisions holding that Fayzullina did not qualify for the (h) waiver since she had not completed at least seven years of presence in the USA following a lawful admission.
What lessons can we learn from the Fayzullina case?
First of all, the simple lesson is do not commit marriage fraud. The USCIS has significant resources at its disposal to investigate and prosecute marriage fraud. Secondly, USCBP officers are also well trained to ask the right questions and to sniff-out potential marriage fraud or for that matter, any type of immigration fraud, at the port of reentry. People who make incriminating statements may not remember what their lies were. Those lies can eventually come up again in the context of a high-pressure interview, or simply in a inadvertent conversation. Do not “manufacture” documents or facts. Those will come back to haunt you.
Third – don’t depend on mere technicalities in citations and charging documents. Those can be easily remedied, and unless they create a manifest injustice or prevent an applicant from claiming relief, they are generally not going to be deemed significant enough to overturn a case.
Fourth, remember that qualifying for waivers is a last-ditch effort. Waivers are typically hard to qualify for, and are even harder to win, because they are so dependent on an immigration judge’s discretion. A person’s past history, behavior, and testimony before the court might serve to sway an immigration judge in either way in making a decision to grant or deny a waiver.
Finally- and I have said it before in other articles in this website, hire a good, competent immigration lawyer who is familiar with the facts of the case the law and can provide appropriate guidance.
Perhaps a key “take-away” from the Fayzullina decision is the IJ’s determination to disallow a clearly approvable waiver under (H) above; by separating the underlying acts from the conviction, the IJ determined the underlying crimes did not result in the removability; instead, it was the conviction that caused the removability. Since the conviction was one step removed (i.e., not direct) from the underlying crimes, it did not satisfy the (H) waiver provision.
In conclusion, the Fayzullina case is a well reasoned decision which clearly went through the various aspects of the charges, the IJ and the BIA decisions, and analyzed the applicability of waivers in light of the facts presented. It is a good case for both practitioners and applicants for permanent residence to read and understand before either filing a preliminary application, or when considering defense of a fraud allegation.
About the author: Attorney Farhad Sethna has practiced law for over 20 years. Since 1996, he has been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio. He is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. With offices in Cuyahoga Falls, Akron and Dover, Ohio, Attorney Sethna represents clients in all types of immigration cases. Our number is: (330)-384-8000. Please send your general immigration questions to AttorneySethna@immigration-america.com. We will try to answer as many questions as possible.
This is only general legal information. Please consult a qualified immigration attorney for advice on your specific case.