Fares v. Barr, No. 13-71916 (9th Cir. 2019)

Court Description: Immigration. Granting Ali Fares’s petition for review of a decision of the Board of Immigration Appeals that concluded that he was ineligible for a waiver of removability under section 237(a)(1)(H) of the Immigration and Nationality Act (“INA”), the panel held that a noncitizen who seeks a § 237(a)(1)(H) waiver is “otherwise admissible” even though he failed to return to his country of origin for at least two years, as required by INA § 212(e), and remanded. Petitioner entered the United States as a nonimmigrant J-1 exchange visitor and was subject to INA § 212(e), under which he was ineligible to apply for an immigrant visa, permanent residence, or two types of nonimmigrant visas until he had departed from the United States and then had resided and been physically present in his country of nationality or of last residence for at least two years. Petitioner failed to fulfill this requirement, but was later admitted as a lawful permanent resident in 2000. In his application for admission, Petitioner inaccurately checked “no” in response to a question asking if he was an alien who had not fulfilled the two-year residency requirement. The immigration authorities did not notice the falsity at that time, but when Petitioner later applied for naturalization, his application was denied on the ground that he had not been “lawfully admitted” as a permanent resident because he had not satisfied the residency requirement of § 212(e). FARES V. BARR 3 In removal proceedings, an immigration judge found Petitioner removable because, at the time of his application for admission, he did not possess valid entry documents. He sought a waiver of removability under INA § 237(a)(1)(H), which provides a waiver for certain fraud or misrepresentation and, among other things, required Petitioner to have been “otherwise admissible” when he entered in 2000. The IJ and BIA held that petitioner was not “otherwise admissible” at that time because he had neither satisfied the residency requirement of § 212(e) nor obtained a waiver of it. The panel explained that this court has held that “otherwise admissible” means not excludable on some ground other than the entry fraud. Therefore, to qualify for a § 237(a)(1)(H) waiver, Petitioner had to have been “admissible” when he entered in 2000, notwithstanding his entry fraud. The panel also observed that the INA defines “admission” and “admitted” as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” Thus, the central issue was whether a noncitizen who is subject to § 212(e)’s residency requirement, but who fails to satisfy that requirement, may enter the United States lawfully. Examining the language of the statute, the panel concluded that § 212(e) does not state that noncitizens subject to its residency requirement are not “admissible” to the United States; rather, it provides that they are not “eligible” for particular forms of admission. The panel explained that other forms of admission set out in 8 U.S.C. § 1101(a)(15) remain available. The panel also concluded that the wording that Congress used elsewhere in § 212 reinforces the panel’s interpretation of the unambiguous text of § 212(e) and that 4 FARES V. BARR the panel’s interpretation is also consistent with other provisions of the immigration laws. The panel thus concluded that, notwithstanding his failure to satisfy or receive a waiver of the two-year residency requirement, Petitioner was admissible under several provisions of 8 U.S.C. § 1101(a)(15). Therefore, the panel held that, as a matter of law, Petitioner was “otherwise admissible” for the purposes of a § 237(a)(1)(H) waiver, and remanded to the agency for it to use its discretion to determine whether to grant Petitioner’s waiver.