9th Circuit: Fed. Courts lack jurisdiction to review § 212(i) waiver denied on discretion; § 237(a)(1)(H) waiver turns on admissibility at time of fraud sought waived

Last week the Ninth Circuit Court of Appeals held that it lacked jurisdiction to review a denial of a § 212(i) waiver that was denied on discretionary grounds and that a § 237(a)(1)(H) waiver requires consideration of the applicant’s admissibility at the time the fraud was committed. Corona-Mendez v. Holder, No. 08-72492, slip op. (9th Cir. Feb. 3, 2010) (Cudahy, Rawlinson, and Callahan). Judge Cudahy wrote for the panel.

This case involved a Mexican citizen who first entered the USA unlawfully in 1956. In 1993 he was arrested for driving under the influence. While imprisoned he was questioned by agents of the legacy INS who, presumably, learned of his undocumented status. He was subsequently ordered removed by an Immigration Judge. He returned to the USA unlawfully in 1993 or 1994.

“In 1996, he applied for and received lawful permanent resident status. He filled out the application with the assistance of his wife and son and did not indicate that he had been deported. In 2003, he applied to become a naturalized citizen but again did not indicate that he had been deported.”

He was placed into removal proceedings in 2005. Corona-Mendez, No. 08-72492, slip op. at 2049.

Corona-Mendez conceded removability, but sought

“relief based on a combination of an I-212 waiver for a nunc pro tunc (retroactive) grant of permission to reapply for admission into the United States in conjunction with either (1) a waiver of deportability for fraud under INA § 237(a)(1)(H)…; or (2) an adjustment of status predicated on a waiver of inadmissibility for fraud or willful misrepresentation of a material fact if the alien demonstrates extreme hardship to the alien’s citizen or lawfully resident spouse or parent under INA § 212(i)….” Corona-Mendez, No. 08-72492, slip op. at 2050.

The Ninth Circuit addressed each of Corona-Mendez’s waiver arguments separately.

The Ninth Circuit quickly disposed of Corona-Mendez’s claim for a § 212(i) waiver. Corona-Mendez, No. 08-72492, slip op. at 2051. The IJ initially denied the § 212(i) waiver on discretion, concluding that Corona-Mendez “had not demonstrated that his removal would result in the requisite [extreme] hardship to his legal permanent resident wife.” Corona-Mendez, No. 08-72492, slip op. at
2050. The BIA affirmed the IJ’s denial on discretion. Corona-Mendez, No. 08-72492, slip op. at 2050. The Ninth Circuit impliedly agreed that this was within the IJ and BIA’s discretionary authority. As such, it simply stated, “No court has jurisdiction to review any judgment granting relief under 212(i), or other provisions for which decision is committed to the discretion of the Attorney General or the Secretary of Homeland Security….” Corona-Mendez, No. 08-72492, slip op. at 2051.

The Ninth Circuit then turned to Corona-Mendez’s request for a waiver under § 237(a)(1)(H). “To qualify for the 237(a)(1)(H) waiver, an alien must be, apart from the fraud or misrepresentation, ‘otherwise admissible’….” Corona-Mendez, No. 08-72492, slip op. at 2052 (citing INS v. Yueh-Shaio Yang, 519 U.S. 26, 31-32 (1996)). The Ninth Circuit held that the proper focus of a court considering whether to grant a § 237(a)(1)(H) waiver is the applicant’s admissibility at the time the fraud or misrepresentation was committed: “We hold that 237(a)(1)(H) requires that the court consider whether the petitioner is inadmissible on more than one ground at the time of the fraud the petitioner seeks waived.” Corona-Mendez, No. 08-72492, slip op. at 2053.

The Ninth Circuit explained that this time period is the proper focus of the § 237(a)(1)(H) waiver inquiry because this waiver is intended to benefit individuals who will be rendered “‘otherwise admissible’ as of the time the fraud it excuses transpired.” In effect, the Ninth Circuit’s ruling limits § 237(a)(1)(H) waivers to individuals who, at the time they committed the fraud that they seek to excuse, were not subject to any other ground of inadmissibility. Corona-Mendez, No. 08-72492, slip op. at 2054.

Since Corona-Mendez was subject to the 10-year bar for having returned unlawfully after having been removed, he was not otherwise admissible at the time that he failed to state on his LPR application that he had been removed. Therefore, Corona-Mendez was not eligible to receive a § 237(a)(1)(H) waiver. Corona-Mendez, No. 08-72492, slip op. at 2054.